ALHAJI ABDULLAHI TRADER v. SANI ROMO
(2018)LCN/12179(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/127/2017
RATIO
COURT AND PROCEDURE: WHERE A DIFFERENT LANGUAGE IS USED FOR DISPOSITION
“In the instant Appeal, it is exactly the same thing as presented in the GUNDIRI’s case where the Respondent had testified that the Statement made by him was in the Hausa Language whereas what was tendered in Evidence was in the English language. I am therefore in agreement that a different deposition was clearly, very defective and that it could not have been rectified by the explanations offered by the learned Respondent’s Counsel on the issue. To make matters rather worse in the circumstances of this Appeal, there was also no explanation offered as to how depositions which the Respondent made in the Hausa language transformed into English language.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ALHAJI ABDULLAHI TRADER Appellant(s)
AND
SANI ROMO Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the judgment of the Kebbi State High Court sitting in Jega in Suit No. KB/HC/JG/5/2015 delivered on 11th May, 2017 by Coram: N. I. UMAR, J. wherein the Judgment of the Court below was delivered in favour of the Respondent as Defendant against the Appellant who was Plaintiff.
By the Writ of Summons and the Statement of Claim dated and filed on the 16th day of October, 2015, the Appellant as Plaintiff claimed against the Respondent the following reliefs:
a. A Declaration that the claimant is the rightful owner of the whole property lying and situated at Jega along Jega – Sokoto road covered by the letter of grant No. JE1 dated 29-8-1995.
b. An Order of this Honourable Court declaring the Defendant to be a trespasser.
c. An Order of this Honourable Court directing the Defendant to without further delay vacate the land and to remove anything he put on the land or cause to be put on the land.
d. An Order of this Honourable Court directing the Defendant to pay the claimant the sum of One Hundred Thousand Naira Only as mesne profit from 2003 to 2008.
e. An Order of this Honourable Court directing the Defendant to pay the claimant the sum of Five Hundred Thousand Naira Only as general damages for trespass to land, financial loss, trauma and so on for unlawfully being in possession of the land till date.
f. Any such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The matter subsequently went to trial and the parties testified for themselves and called a witness each. Some documentary evidence were also tendered as Exhibits. At the close of evidence, Counsel to the parties addressed Court. On the 11th day of May, 2017, the learned trial Court delivered a well considered judgment refusing the grant of any of the reliefs of the Plaintiff and dismissed his case.
Dissatisfied with the judgment of the Court below, the Appellant has appealed to this Court vide a Notice of Appeal filed on the 28th day of June, 2017. There are three (3) Grounds of Appeal filed, which are reproduced here without their particulars as follows;
GROUNDS OF APPEAL;
1. The judgment of the lower Court is against the weight of evidence.
2. The lower Court erred in law when it held that the Appellant did not establish his case.
3. The lower Court erred in law when it dismissed the case of relying on the Respondent?s purported witness depositions on oath in English language when the said witnesses testified that they made their depositions in Hausa Language thereby occasioning miscarriage of Justice.
SOLE ISSUE FOR DETERMINATION:
From the grounds of Appeal filed, a sole issue was nominated for the determination of this Appeal by the Appellant thus;
Whether from the totality of this case including state of pleadings, evidence adduced and documents tendered, the Appellant did not prove a better title thereby making the lower Court to dismiss the claim of the Appellant (Grounds 1, 2 and 3).
On the part of the Respondent, this sole issue was adopted and it was in respect of this issue that learned Counsel for the parties addressed Court in extenso, citing a number of decided cases. The Appellant’s Brief of Argument filed on the 7-11-2017, but deemed filed on the 30-1-2018 was settled by MAGNUS IHEJIRIKA ESQ., while the Respondent’s Brief of Argument filed on the 14-5-2018 and deemed filed on the 16-5-2018 was settled by SANUSI SAMAILA ESQ. The Appellant?s Reply Brief was filed on the 22-5-2018 by MAGNUS IHEJIRIKA ESQ. At the hearing of the Appeal on the 17-10-2018 learned Counsel adopted their Briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL;
APPELLANT;
The submission of Counsel is that the lower Court was wrong in dismissing the claim of the Appellant. In his argument Counsel told Court that civil cases are decided on the Balance of Probabilities or Preponderance of Evidence. Counsel cited the case of ISEOGBEKUN vs. ADELAKUN (2013) 51 WRN 1 at 25. It was further argued by Counsel that what this position entails is that Court has to look at the relative strength of the case of the parties and place them on an imaginary scale of Justice and then decide on which side the scale tilts. See the case of DURUAKU vs. NWOKE (2016) ALL FWLR (PT. 815) 351 at 402.
The contention of Counsel is that where there is nothing on the side of the Defendant then any little evidence on the side of the Claimant would be enough to decide the case in favour of the Claimant as the burden of proof is minimal in the circumstance. Counsel cited the cases of CHAMI vs. UBA PLC (2010) 2 MJSC 119 at 148; DAUDA vs. ACCESS BANK PLC (2016) ALL FWLR (PT. 831) 1489 at 1521.
Learned Counsel explained that in the instant case, both the Appellant and the Respondent claim to be the rightful owner of the land in dispute and that from the above cited cases what is necessary for the Court to do is to look at the relative strength of the stories as put forward by them. He said that this position is supported by the Supreme Court case of AJIBULU vs. AJAYI (2013) 12 SCNJ 413 at 431 where it was held:
“A long line of authorities have settled that in a case where both parties claim title to land, the Court is more concerned with the relative strength of the party with better right who must be given the declaration.”
Arising from the foregoing, Counsel submitted that it is the pleadings supported by evidence that will determine the strength of a party’s case and therefore, where there is no evidence to support the pleadings of a party, the pleadings are deemed abandoned.
He cited the case of BALOGUN vs. UBA PLC (1992) 6 NWLR (PT. 247) 336 at 344-345 and contended that this position extends to this era of front loading of documents where evidence of a party has to be front loaded in form of a witness deposition on oath. He argued that where such witness deposition is incompetent then there is no evidence on his side to support his pleadings, which will ultimately result in the said pleadings being abandoned.
Learned Counsel contended that in the instant case, the Respondent testified that he made his witness depositions on oath in the Hausa language (see page 80 of the record of appeal), but the deposition adopted by him was in English language (see pages 19-21 and 75-76 of the Record). According to Counsel, the law requires that the deposition he made in the Hausa language will be the one to be adopted before the Court below; that since the one he made in the Hausa Language was therefore, not the one tendered and adopted, it follows that no evidence in support of his Statement of Defence was tendered as what was tendered remains incompetent in the circumstance. What this translates therefore, as far as Counsel is concerned is that there is no evidence in support of the Respondent’s pleadings as Defendant.
It was further contended that the Defendant did not therefore, join issues with the Claimant and that what subsists before the Court below, is only the Appellant’s side of the story. Counsel urged this Court to so hold. To buttress the arguments of Counsel, he referred the Court to Order 1 Rule 9 of the Kebbi State High Court (Civil Procedure) Rules 2017 which Counsel reproduced thus;
“Where in these Rules depositions and affidavits are required to be made, if the deponent does not understand English Language such deposition or affidavit shall be made in a language he understands and shall be made in compliance with the Illiterates’ Protection Law, Cap 67, Laws of Kebbi State, 1996.”
Learned Counsel also cited the case of GUNDIRI vs. NYAKO (2012) 11 SCNJ 73 at 103-105, the Supreme Court held:
“The learned appellant counsel submitted at great extent in defence of the illiterate jurat contained in the said witness deposition and the fact that none of the said 22 witnesses in question disowned his witness Statement. It is pertinent to state that out of 66 witnesses called by the appellants, 22 of them stated under cross examination that they made their depositions in Hausa language. The record did not show that the deposition adopted were those made in Hausa Language which is not the language of the Court. With the deposition adopted being in English Language, the question to pose is, were those depositions adopted the same as those made by the witnesses’ To my mind and from all indications, the witnesses were adopting to depositions which were not in fact made by them since English language was foreign to their understanding. The appellants owed a duty to the Court to have presented the very depositions made by the witnesses. The adoption of a different deposition was very defective and it could not have been rectified by the use of an illiterate jurat. The law desires that witness depositions are to be individually identified with the maker. It is not enough identity that none of the witnesses disowned the statement. They could not in other words have claimed rightly a deposition which was made in English language since they spoke in Hausa language? In the same vein and for further explanation, I would wish to state that there was also no explanation offered as to how depositions which were made in Hausa language could metamorphose into English language.”
The contention of Counsel on this issue is that the witness deposition on oath of the Respondent is incompetent and liable to be struck out on this score and that if it is so struck out, there will be no evidence in support of the Respondent’s pleading, which in the circumstance will result in its being abandoned. Consequently, he said that it can safely be concluded that the Respondent did not join issues with the Appellant on the question of the ownership of the land in dispute. Therefore, Counsel submitted that in the imaginary scale of Justice, there is nothing on the side of the Respondent to support his case. He urged this Court to hold so. Counsel cited the case of ADEWUYI vs. ODUKWE (2005) ALL FWLR (pt. 278) 1100 at 1112, in support of his arguments.
Learned Counsel also submitted that the Appellant proved a better title than the Respondent before the lower Court who did not properly appreciate the position of the Appellant, thus, coming to a wrong conclusion. At pages 115-116 of the record, where the Court observed, thus; “The claimant averred in his further witness statement on oath that he sold the land in dispute to the said Abdullahi Musa Magaji before the acquisition of the land by the Government and after the acquisition the Government re-allocated the land to him and gave Alhaji Abubakar Magaji another land which is plot 22. It is trite that he who assert must prove. The claimant has not led credible evidence as will entitle him to the reliefs sought. In other words, the claimant did not tender any document to buttress his assertion as to when the land in dispute was acquired and when it was re-allocated to him…”
The contention of Counsel on this issue is that the lower Court was wrong in considering only the further witness deposition on oath of the Appellant. Counsel, therefore, submitted that the entire pleadings (Statement of Claim, Statement of Defence and Reply to Statement of Defence) including all depositions on oath should be taken into consideration at least to ascertain where issues are joined and where issues are not joined. See the case of DAUDA vs. ACCESS BANK PLC (2016), ALL FWLR (pt. 831) 1489 at 1519), it was held,
“In considering the case of a party, the pleadings must be construed jointly and not severally. The statement on oath of a party and his witness must be read conjunctively to fully grasp the spirit and the facts of the case of a party. A several reading of a party’s statement on oath will lead to wrong appreciation of the facts put forth by the party.”
Against the backdrop of this position, Counsel submitted that where a party fails to join issues on an averment of the other party, such averments are deemed admitted and that it is trite law that what is admitted needs no further proof. This is because it is when issues are joined that they are triable. He cited the case of OKEREKE vs. STATE (2016) ALL FWLR (pt. 828) 910 at 925, on the issue.
Learned Counsel also brought to the attention of this Court Order 5 Rule 5 (1) and (2) of the Kebbi State High Court Civil Procedure Rules 2017 which provided thus:
1. Every allegation of fact in any pleading if not specifically denied on the pleadings of the opposite party shall be taken as admitted except as against a person under legal disability.
2. A general denial in any pleading shall not operate as a denial of any specific fact in the pleadings of the opposing party.
In support of this proposition, Counsel cited the case of TOTAL NIG. LTD vs. MORKAH (2003) FWLR (pt. 148) 1343 at 1358.
In his argument in support of this issue, Counsel drew attention to paragraph 5 of the amended Statement of Claim (p. 38 of the records), where the Appellant as Claimant averred thus;
“The claimant also avers that the land in dispute was allocated to him by the Government of Kebbi State through the letter of grant No. JE 1 dated 29-8-1995. This letter of grant is hereby pleaded and the sketch plan is also pleaded.”
According to learned Counsel, the Respondent joined issues with the Appellant on account of this issue at paragraph 3 of the Statement of Defence (page 15 of the record) and in furtherance of his denial, introduced the issue of the land being sold to Alhaji Abdullahi Musa Magaji. Having so introduced the issue of Alhaji Abdullahi Musa Magaji, Counsel told Court that the Appellant filed a Reply wherein he joined issues with the Respondent and in so doing introduced the issue of the land being acquired by the government and the government giving Alhaji Abdullahi Musa Magaji?s alternative plot 22. This is contained at paragraph 2 of the Reply to Statement of Defence (page 29 of the Record) and it reads;
“In reply to paragraphs 3, 8 and 10 of the Statement of Defence, which the Claimant hereby denies and puts the Defendant to the strict proof of the averments, the Claimant states that:
(a) He sold the land in dispute to the said Alhaji Abdullahi Musa Magaji before the acquisition of the land by the Government and after the said acquisition and scheming of the vast land into plots, the Government gave him (Claimant) the land in dispute and gave Alhaji Abdullahi Musa Magaji another plot which is plot 22.
(b) The land in dispute is covered by the letter of Grant No. JE 1.”
Counsel explained that the Appellant through his Reply to Statement of Defence further introduced the issue of acquisition and the giving of an alternative plot to Alhaji Abdulahi Musa Magaji and contended that what the Defendant ought to have done is to join issues with the Appellant on these two issues by way of filing a Rejoinder, which the Respondent as Defendant did not do.
Counsel’s further contention is that the Defendant is therefore deemed to have accepted or admitted the averments of the Appellant as Claimant. According to Counsel, it is only when the Defendant has done so that the Appellant would now be required to prove his assertions. The argument of Counsel is that in so far as the Respondent did not join issues with the Appellant on these issues and having been deemed admitted, there is no need for the Appellant to prove them. He cited the case of ZABOLEY INTERNATIONAL LTD vs. OMOGBEIN (2005) ALL FWLR (Pt. 278) 1172 at 1183, it was held, thus:
“The Court can treat non-denial of facts as an admission.”
The argument of Counsel is that what is left for the Appellant to prove is the issue of the land being granted to him by the Government as that is the only place the Respondent had joined issues with the Appellant and that in this respect, tendering the instrument of grant is sufficient proof of that.
It was further argued by Counsel that the Appellant discharged the onus placed on him by virtue of paragraph 5 of his witness deposition on oath (pages 42 and 45 of the Record) and that in addition he tendered a certified true copy of the letter of grant with the sketch plan (pages 121 – 123 of the Record), which were received in evidence at pages 70 – 71. Counsel said that what the Respondent disputed is the fact that the Appellant got title through Government grant and that production of the letter of grant is enough to establish the Appellant’s position on that issue.
The submission of Counsel on that issue is that a party can establish his case through the evidence of one person, which can be himself or any other person. He cited and relied on the case of DAWAKI GEN. ENTERPRISES LTD vs. AMAFCO ENTERPRISES LTD (1995) 3 NWLR (Pt. 594) 224 at 235. Counsel contended that what was in dispute was the issue of grant and that by his pleadings the Respondent never disputed the issue of revocation and giving of alternative plot to Alhaji Abdullahi Musa Magaji. He said that there is therefore no obligation on the part of the Appellant to prove them. He urged this Court to so hold.
RESPONDENT;
The submission of Counsel is that for a Claimant in a declaration of title to land to succeed he must rely on the strength of his case and not on the weakness of the defence. Counsel cited the case of OMISORE vs. AREGBESOLA (2015) ALL FWLR 1673 at 1694. As it relates to the instant Appeal, Counsel submitted that the Appellant cannot prove his claim without proving the fact that he was allocated the land in dispute by the government of Kebbi State (since it is not in dispute that he sold the land in dispute to one Alh. Abdullahi Musa Magaji, who is Defendant’s vendor), irrespective of whether the Respondent put up defence or not.
Counsel said that in order to prove the assertion that after he (Appellant) sold the land in dispute, the government acquired same and re-allocated same to him, that he must tender evidence of the said allocation. He said that the so called letter of grant and a sketch map (exhibit “A” & “B”) respectively tendered by the Appellant did not satisfy the requirements of the provision of Section 104 of the Evidence Act more particularly Sub-section 2. His reason is that the documents were not certified in accordance with the law and that failure to comply with the said provision renders the said exhibits inadmissible. Counsel also submitted that the law is trite that it is only certified true copies of public documents that is admissible in a Court for the proof of its contents.
On what is meant by certification, Counsel cited the cases of AHMAD vs. C.B.N (2015) ALL FWLR (PT.803) 1807 at 1814 R. 3; GAU vs. GAU (2015) ALL FWLR 591 at 596 R.3. In view of this position, Counsel argued that the Court below was right in holding that the Appellant failed to establish his case and also in dismissing his claim. Counsel urged this Court to so hold.
Learned Counsel further relied on the authority of MICHEAL ROMAINE vs. CHRISTOPHER ROMAINE (1992) 4 NWLR (PT. 238), 650 at 662 where it was held that;
“But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property, which such an instrument purports to grant is his own; Rather production and reliance upon such an instrument inevitably comes with it the need of the Court to inquire into some or all of the number of questions including;
a. Whether the document is genuine and valid.
b. Whether it has been duly executed, stamped and registered.
Against the backdrop of this authority cited, Counsel submitted that there is nothing before the lower Court to confirm that the Exhibits “A” & “B” are genuine because they are not certified in accordance with the provisions of Section 104 of the Evidence Act, 2011. On this, Counsel further submitted that the Court below was right when it dismissed the Appellant’s case.
Learned Counsel contended that what was even tendered before the Court below as Exhibits A and B were neither certified true copies nor the originals but mere photocopies of same, which are not admissible in law. Counsel cited the case of OGBORU vs. UDUAGHAN (2011) 2 NWLR 539 at 550 ratio 17. For this reason, Counsel submitted that the Court below was right once again to have dismissed the Appellant’s Case at the Court below.
Learned Counsel also distinguished the facts of the case of GUNDIRI vs. NYAKO (Supra) cited and relied upon by the Appellant’s Counsel and submitted that the case was not relevant to this matter, this is because in GUNDIRI’S case the witness gave his statement in writing in Hausa language and an unknown person translated same without writing his name or providing an illiterate jurat as required. He explained that in the instant case at hand the witness gave his statement orally.
It would be recalled that the Appellant filed a Reply Brief. In his Reply Brief, Appellant’s Counsel began by taking on the contention that the Appellant did not tender document of allocation of the parcel of land in dispute. According to Counsel, this is erroneous and misleading. The reason for this was because the Respondent did not join issues with the Appellant on this. Counsel also argued that it is only when issues are joined that proof becomes required. More so, Counsel said that since the Defendant also claimed to be the owner of the land in dispute, the Court has to look at the strength of the case put forward by parties to determine who proved a better title.
On the issue of the alleged tendering of photocopies of the letter of grant, being a public document and has to be certified and re-certified, Counsel submitted that the Respondent did not see Court’s record before reaching that conclusion. He said that what was tendered was the original certified photocopy that was submitted to Court and that it was certified by Mohammad Augi, Registrar of deeds in the ministry of lands, Kebbi State.
In reacting to the issue of re-certification as contended by Respondent’s Counsel, Appellant’s Counsel said that that contention was incompetent. This is because it was not an issue canvassed before the Court below and that the Respondent cannot now raise it without the leave of Court. In addition, Counsel argued that the concept of re-certification of a certified public document is not known. Based on the foregoing, Counsel urged this Court to allow this Appeal based on the Appellant’s Brief.
RESOLUTION OF APPEAL
The facts of this case are that the Appellant as Claimant before the Court below claims to be the rightful owner of the parcel of land in dispute, which he sold to one Alhaji Abdullahi Musa Magaji. According to the Claimant, the government later acquired the land and it was given back to him, while the said Alhaji Abdullahi Musa Magaji was given another parcel of land. It was part of the facts that it was Alhaji Abdullahi Musa Magaji who later sold the parcel of land in dispute to the Respondent. Before the parcel of land was sold to Alhaji Abdullahi Musa Magaji and the subsequent taking over of the land by the government, the Appellant was said to have leased the parcel of land to the Respondent who paid for two years and thereafter stopped paying the Appellant. On the part of the Respondent, he claimed that he is the rightful owner of the land having bought it from Alhaji Abdullahi Musa Magaji.
The major issue which the Respondent herein canvassed in opposition to allowing this Appeal, is the question of lack of certification of Exhibits ‘A’ and ‘B’ in accordance with Section 104 of the Evidence Act, 2011 as Amended. According to learned Respondent’s Counsel, what were tendered and admitted as title documents from the Appellant were mere photocopies. It would be recalled that the said Exhibits consisted of a letter of grant by the government of Kebbi State and a sketch map admitted and marked as Exhibits ‘A’ and ‘B’. It was on the basis of this that learned Counsel for the Respondent had asked this Court to disallow the Appeal and have it dismissed for lacking in merit.
In his response on this issue, learned Appellant’s Counsel said that he was not oblivious of the fact that the Letters of Allocation of the parcel of land in dispute, alongside the sketch map tendered are all public documents which require certification to be admissible in evidence. According to learned Appellant’s Counsel the Respondent’s Counsel did not bother to see the Court’s record before jumping into that conclusion. He said that what were tendered were the original certified photocopies that was tendered by the Appellant as Plaintiff and same submitted to Court below in the course of trial and that these were certified by Mohammad Augi, Registrar of Deeds in the Ministry of Lands, Kebbi State.
To be sure and to make assurance doubly sure as to the accuracy of the submissions of learned Appellant’s Counsel on account of the Exhibits ‘A’ and ‘B’, this Court had to take the pains to scrutinize the records and found it duly established in line with the submissions of the learned Appellant’s Counsel.
On the part of the Appellant, the major point canvassed in support of the Appeal is that the fact that the Respondent as Defendant failed to join issues with the averments of the Appellant as Plaintiff when the Respondent testified that he made his witness depositions on oath in the Hausa Language (see page 80 of the Record of Appeal), whereas the deposition adopted by him was in English language (see pages 19-21 and 75-76 of the Record). The argument of Counsel is that the law requires that the deposition made in the Hausa language will be the one to be adopted before the Court below; that since the one made in the Hausa Language was therefore, not the one tendered and adopted, it follows that no evidence in support of the Statement of Defence was tendered as what was tendered remains incompetent in the circumstances of the case. Learned Appellant’s Counsel cited the case of GUNDIRI vs. NYAKO (Supra) in support.
Learned Counsel for the Respondent argued that the facts of the GUNDIRI case are distinguishable but facts of the GUNDIRI case I am aware of is that there was evidence that the Statement on Oath was made in a language other than in the English Language, which is the language known to the Court, before it was thereafter translated into English Language.
What was therefore required in keeping with the requirements of the law is that both versions of the Statements were therefore expected to be put into evidence, which was not done. Now in the instant Appeal, the Respondent having testified that he made his witness depositions on oath in the Hausa Language (see page 80 of the Record of Appeal), whereas the deposition adopted by him was in English language (see pages 19-21 and 75-76 of the Record), what becomes of the Statement he made in the Hausa Language which was not put in evidence? This of course raises questions which even the explanations made by learned Respondent’s Counsel could not address.
It would be recalled that the apex Court in the GUNDIRI case did not take kindly to the fact that the depositions adopted were not those made in the Hausa Language. With the deposition adopted being in English Language, the Court had posed the question whether those depositions adopted were the same as those made by the witnesses? The Court had remarked that from indications, the witnesses had adopted depositions which were not in fact made by them since English language was foreign to their understanding and that the Appellants owed a duty to the Court to have presented the very depositions made by the witnesses.
In the instant Appeal, it is exactly the same thing as presented in the GUNDIRI’s case where the Respondent had testified that the Statement made by him was in the Hausa Language whereas what was tendered in Evidence was in the English language. I am therefore in agreement that a different deposition was clearly, very defective and that it could not have been rectified by the explanations offered by the learned Respondent’s Counsel on the issue. To make matters rather worse in the circumstances of this Appeal, there was also no explanation offered as to how depositions which the Respondent made in the Hausa language transformed into English language.
This of course is clearly fatal to the case of the Respondent. The contention of Appellant’s Counsel on this issue, which I find difficult to fault is that the witness deposition on oath of the Respondent is incompetent and liable to be struck out and that if this is so, there will be no evidence in support of the Respondent’s pleading, which in the circumstance will result in its being abandoned.
In further extending the argument, it would also be safe to conclude that the Respondent did not join issues with the Appellant on the question of the ownership of the land in dispute. That being the case, when there is nothing to put on the one side of the imaginary scale of Justice all that is required on the other side is minimum evidence to satisfy the requirement of proof. Counsel cited the case of ADEWUYI vs. ODUKWE (Supra) in support of his arguments. See also the cases of FAGBENRO vs. AROBADI (2006) LPELR-1227 (SC); BURAIMOH vs. BAMGBOSE (1989) 3 NWLR (PT. 109) 352 AT 363; NWABUOKU vs. OTTIH (1961) 2 SCNLR 232.
On the issue of improper evaluation of the evidence led at the Court below, it is rather clear that the Court’s appraisal of evidence left much to be desired. In clear cases where it was rather obvious that issues were not so joined by the parties the Court below still required strict proof on behalf of the Appellant as Plaintiff. In clear cases where the Respondent did not join issues with the Appellant, the issues involved are deemed admitted, there is no need for the Appellant to prove them again. There are legions of cases in support of this proposition.
Learned Appellant’s Counsel however, cited the case of ZABOLEY INTERNATIONAL LTD vs. OMOGBEIN (Supra); See also BUA vs. DAUDA (2003) LPELR-810; LEWIS AND PEAT (NRI) LTD vs. AKHIMIEN (1976) 7 SC 157; ATOLAGBE vs. SHORUN (1985) 1 NWLR (PT.2) 360. A close scrutiny of the records show that the Appellant as Plaintiff discharged the onus placed on him by virtue of paragraph 5 of his witness deposition on oath (pages 42 and 45 of the Record) and in addition tendered a certified true copy of the letter of grant with the sketch plan (pages 121 – 123 of the Record), which were received in evidence at pages 70 – 71.
It is clear that what the Respondent actually disputed is the fact that the Appellant got title through Government grant. The opinion of this Court in agreement with learned Appellant’s Counsel is that production of the letter of grant is enough to establish the Appellant’s position on that issue. What was actually in dispute was the issue of grant and going by the pleadings of the Respondent, it is also clear that he never disputed the issue of revocation and of giving of an alternative plot to Alhaji Abdullahi Musa Magaji. That being the case, there is therefore no obligation on the part of the Appellant as Plaintiff to prove these points again.
In the final analysis, this Appeal succeeds having been found meritorious and it is accordingly allowed. There shall be cost of N50,000.00 against the Respondent in favour of the Appellant.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the lead judgment just rendered by my Learned Brother Frederick O. Oho, JCA. I agree with eloquent reasoning therein and the ultimate conclusion that the Appellant has established his title by producing his letter of grant of right of occupancy, which suffices to prove his case on preponderance of evidence, especially as the Respondent has not disputed the issue of revocation of his interest therein and giving an alternative plot to Alhaji Abdullahi Musa Magaji. The Appellant had no duty to further prove the admitted pleading.
The Appeal succeeds and is hereby allowed. I subscribe to the consequential orders made in the judgment inclusive of costs.
AMINA AUDI WAMBAI, J.C.A.: I read before now the judgment of my learned brother, FREDERICK O. OHO JCA He has extensively addressed the sole issue in this appeal. I agree with the reasoning and conclusion that there is merit in this appeal. For the stated reasons, I also allow the appeal and abide by the order as to cost.
Appearances:
Magnus Ihejirika, Esq.For Appellant(s)
Sanusi Samaila, Esq.For Respondent(s)
