ALHAJI ADAMU v. HARUNA GULAK
(2013)LCN/5904(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of February, 2013
CA/YL/25/2011
RATIO
“On the question relating to damages awarded I submit that in the case of Asiegbu v. Olibie (2010) All F.W.L.R. Pt. 516 at page 547, the Court of Appeal defined damages as follows:- “Damages is a sort of a pecuniary compensation, of indemnity recoverable in the courts by any person who suffered a loss, detriment or injury, be it to his person, property or right through the unlawful or wrongful act or omission or negligence of another.” Per ABBA, J.C.A.
“It is trite that a Plaintiff succeeds on the strength of this case.” Per ABBA, J.C.A.
“The principle of nemo dat quod non habet means that a grantor or vendor can only convey to another what he has. Thus, a person who purports to dispose of a parcels of land, which does not belong to him, or in which he has no interest, or which is encumbered, to another will be in violation of the above stated principle and this will render the purported sale void ab initio.” Per ABBA, J.C.A.
“In reply to paragraph 5.14 page 5 of the Respondent’s brief of argument, I submit that, “Pleading is not and cannot take the place of evidence. See Bank of the North & Anor v. Julius Babatunde & Anor 2002 FWLR, 1452 at 1465 in which it was held. “The aim of pleading is to set out clearly the facts which parties reply on for their case. The law however is that an averment in a pleading is not tantamount to evidence and can never be considered as such.” See also Alhaji Baba Hassan v. Moh’d Barda (1999) NWLR Pt 587 at page 466; Akufosele v. Ijose (1960) SCNJ 447. In Yusuf v. Adegoke (2008) 157 LRCN page 172 the Supreme Court held that: “Any material fact pleaded must be supported by evidence.” Per ABBA, J.C.A.
JUSTICES:
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
ALHAJI ADAMU – Appellant(s)
AND
HARUNA GULAK – Respondent(s)
ABUBAKAR ALKALI ABBA, J.C.A. (Delivering the leading Judgment):
INTRODUCTION AND ARGUMENT BY EACH SIDE
This is an Appeal against the decision of His Lordship, Honourable Justice Adamu Buba Mubi of the High Court of Justice, Adamawa State, sitting at Mubi, delivered on the 30th day of March, 2009, where the Plaintiff/Respondent by a Writ of Summons dated 8th day of December, 2003 commenced an action with claim contained in paragraph 13 of the Statement of Claim dated the 8th day of December, 2003 where he claims as follows:
(a) Declaration that the plaintiff is entitled to statutory of occupancy over a piece of land measuring 100 feet by 50 feet situate at Yelwa Ward, Mubi Town, Adamawa State.
(b) N500,000.00 (Five Hundred Thousand Naira Only) damages for trespass to the land.
(c) Injunction restraining the Defendant from further trespass to or otherwise interference with the said land.
(d) Costing of the Suit.
Pleadings were ordered, filed and exchanged. The Plaintiff during trial called two witnesses and tendered one document which was marked “Exhibit A”, while the defendant on other hand also called two witnesses and tendered five documents as Exhibits “B, C, D, E and F” with their translated versions and Exhibit B1, C1, and D1″, respectively.
Counsel were heard on both sides in oral addresses and Judgment was given in favour of the Plaintiff/Respondent in terms of paragraph 13(a), (c) and (d) of the Statement of Claim. The Court also awarded N100,000.00 damages with a cost of N1,000.00 against Defendant/Appellant in favour of the Plaintiff/Respondent.
STATEMENT OF FACTS STATED BY RESPONDENT IN HIS BRIEF OF ARGUMENT
The Plaintiff/Respondent claims in his Statement of Claim that he and one Dominic jointly bought a piece of land which measures approximately 100 feet by 100 feet at the price of N640.00 (Six Hundred and Forty naira-only) sometime in the 1977 under customary law from one Jauro Yahaya (the late Ward Head of Yelwa Ward, Mubi) and they were put in possession thereof.
Thereafter, the Plaintiff/Respondent and his friend Dominic divided the land into two equal halves and each taking possession of 100 feet by 50 feet.
Dominic developed his own portion of the land while the Plaintiff/Respondent heaped trips of sand on his portion of in the preparation to build on the land.
While on a routine check in August, 2003, the Plaintiff/Respondent discovered that somebody had encroached on the land and constructed a fence wall in front of the land and upon investigation he discovered that it was the Defendant/Appellant that put up the fence. The Plaintiff/Respondent warned the Defendant/Appellant to stay away from the land but he continued to build on the land. The Plaintiff/Respondent then instituted action at the High Court of Justice Mubi, Adamawa State which has now given rise to the current appeal.
The Defendant/Appellant on the other hand stated that he bought the land from the same Jauro Yahaya in 1978.
ISSUES OR ISSUE FOR DETERMINATION
Whether having regards to the claim of the Plaintiff/Respondent vis-a-vis the evidence before the trial Court and the defense, it was right for the court to decide that the Plaintiff/Respondent has proved his claim to warrant the declaration and award in his favour.
ARGUMENT
I summit that having regards to the Statement of Claim vis-a-vis the evidence before the trial Court and the defence, the trial court was right in holding that the Respondent has proved his claim to warrant Judgment in his favour.
The root of the Plaintiff/Respondent’s claim at the trial was that the land in dispute was sold to himself and one Dominic at the price of N640.00 in the year 1977.
I further submit that the Plaintiff/Respondent (1) proved this root of his title when he led evidence to the fact that the land in dispute was a part of a piece of land purchased by the Plaintiff and one Dominic from Jauro Yahaya at the price of N640.00 where each of them contributed N320.00 each, and that part owned by Dominic is still in his possession and his title is not disputed. See page 22 of the record of proceedings.
I submit that the Plaintiff/Respondent established his (2) claim and this he did when he led evidence in support of paragraph 4 of his statement of Claim as to how the land was founded and how he came into possession and deposited sand on the land while one Dominic, PW2, with whom he jointly bought the land developed his part of the land and became his caretaker. See page 25 to 26 of the record of proceedings.
It is trite law that the Plaintiff/Respondent had the burden of setting out clearly by who and how the land was founded and the names of the persons who had exercised acts of ownership on the land before it devolved upon him – OLOKOTIN v. SARUMI (2007) 7 S.C.N.J. at page 182. I submit that this burden was clearly discharged by the Plaintiff/Respondent before the trial court as he traced his root of title to Jauro Yahaya who founded the land. See page 22 lines 15 to 18 of the record of proceedings. Further on the issue of root of title, the Defendant/Appellant also traced his root of title to the same founder, Jauro Yahaya, however, DW1 purportedly purchased the same land in 1978 while Plaintiff/Respondent purchased same in 1977.
There is no dispute in this matter that both parties to this suit allegedly acquired title to the land in dispute from one Jauro Yahaya. See page 9 paragraph 5.2 of the brief of the Appellants. See also DW1 on page 29 of the record of proceedings and PW1 at page 22 line 13 of the record of proceedings.
I submit that where both parties traced their root of title to the same person the law as set out in Shobajo v. Ikotun (2003) 14 NWLR (part 840) 238 at 252 paragraphs D – E is as follows:
“Where it is common ground between the parties in a land dispute that the legal title in the disputed property is vested in a common vendor, the interests of the adverse claimants will, prima facie, rank in the order of their creation based on the maxim: qui prior est tempeore potior est jure, meaning: he who is first in time has the strongest claim in law. This is because generally what is first in time is better in law.”
See also Kari v. Ganaram (1997) 2 NWLR (part 488) 830.
Also Ilona v. Idakwo 2003 11 NWLR (part 830) page 53 at 91 para C – G.
I submit therefore that the principle of nemo dat quod non habet as applied by the trial court in this matter was well applied as Jauro Yahaya could not have created two valid competing titles over the same land. After he created the first, he divested himself of the power to create further titles over the same land.
I submit further that a person cannot validly give out that which he does not have. This is enshrined in the legal principle of “nemo dat quod non habet” DW1 testified to the fact that he purchased the land in dispute from Jauro Yahaya in 1978, and having regard to the legal principle of “nemo dat quod non habet”, I submit that since evidence has been placed before the trial Court to the effect that the Plaintiff/Respondent purchased the said disputed land before 1978, it means that Jauro Yahaya had no title over the disputed land in 1978. And as a result he has no title to pass to the Defendant/Appellant in the sale of land which purportedly took place in 1978.
I therefore submit that the trial Judge was right to have applied the legal principle of nemo dat quad non habet in favour of the Plaintiff/Respondent.
See Polo v. Ojor (2003) 3 NWLR (part 807) 344 at 358 paragraphs C – F. where it was stated that:
“The principle of nemo dat quod non habet means that a grantor or vendor can only convey to another what he has. Thus, a person who purports to dispose of a parcels of land, which does not belong to him, or in which he has no interest, or which is encumbered, to another will be in violation of the above stated principle and this will render the purported sale void ab initio.”
I submit also with respect that the contention by the Counsel to the Defendant/Appellant at pages 5 to 7 of the Appellants brief that the plaintiff/respondent led evidence at variance, with his pleading in that – in the Statement of Claim, it was pleaded that the sale took place in 1977, while during trial PW1 led evidence on page 22 to the effect that the land was sold and/or purchased in October 1976 is not tenable. This is because in his examination-in-chief, the plaintiff/Respondent only stated that he was informed by his friend, Dominic in October 1976 of the fact that someone wants to sell the land for N640.00 and that his friend wanted them to purchased same jointly. He explained how they subsequently bought the land and he obtained a Local Government Certificate over the land dated 15-8-1977, Exhibit A.
Also on the contention by opposing Counsel at paragraph 5.1.2b on page 6 of the Appellants brief as to whether it was a single transaction of the sale of the land to Plaintiff and Dominic that took place and whether it was for N640.00 or N320.00 that was paid. I submit that the Plaintiff/Respondent and one Dominic purchased the land from Jauro Yahaya at the price of N640.00 and after the purchase, divided the land amongst themselves. Jauro Yahaya issued two (2) receipts in the sum of N320.00 each i.e. One was issued to Dominic and the other to the Plaintiff/Respondent. By simple arithmetic N320.00 + N320.00 = N640.00. I submit that there is no controversy or confusion by the fact that Jauro Yahaya never issued a receipt in the sum of N640.00. See the evidence of PW1 at page 22 of the record. I submit that the evidence is not at variance with the pleading and urge Your Lordships to hold so.
I further submit that the fact that Jauro Yahaya issued two (2) receipts to Dominic and the Plaintiff/Respondent does not make the transaction two; rather it is still a single transaction. The payment was made jointly by PW2, one Dominic in the sum of N640.00. See pages 22 to 23 of the record of proceedings.
In further response to the contention by counsel on the other side at page 8 of the Appellants brief, I submit that only material facts need to be pleaded and not the evidence by which they are to be proved, consequently, evidence sustaining an allegation need not be pleaded; see the case of Zenith International Bank LTD v. Vickdab & Sons (NIG) LTD (2011) All FWLR PT. 564 AT PAGE 189.
I submit that the Plaintiff/Respondent in paragraph 4 of his Statement of Claim stated that he and his friend Dominic purchased the dispute land which is a material fact. I further submit that since he has stated a fact that he and Dominic purchased the land in his statement of claim, there is no need to plead the receipt evidencing the sale of land in his Statement of Claim. That the receipt was not specifically pleaded I submit is not fatal to the case of the Respondent and I urge Your Lordships to hold so.
I submit that the trial Court was right to have relied on that relevant piece of evidence as it proved a material fact which was pleaded. That the said receipt was not produced before the Court, the provision of Section 97(1) (c) of the Evidence Act LFN 2004 is clear, which stated as follows:-
“97(1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(c) Where the original has been destroyed or lost and in the later case all possible search has been made for it.”
PW1 during trial, at page 23 of Record of Proceedings gave evidence under cross-examination that Jauro Yahaya issued two (2) receipts evidencing the sale of the land to him and Dominic in the sum of N320.00 each and further stated at page 25 of the Record of Proceedings that the receipt issued to him by Jauro Yahaya was lost. The receipts were sufficiently pleaded by virtue of the facts pleaded.
I submit that by the provisions of Section 97(2)(a) of Evidence Act 2004, the Plaintiff/Respondent having laid the proper foundation that the original of the receipts is lost, can give any secondary evidence of the content of the document. I therefore, submit that the trial Court was right to have relied upon the oral evidence given by PW1 in relation to the lost document as the conditions prescribed by the Evidence Act has been fulfilled.
I submit that, although the receipt evidencing the sale was not physically before the Court, the Plaintiff/Respondent laid foundation as required by Section 135 and 136 of the Evidence Act. Upon the testimony as to the loss of the receipt, secondary of the content of the document including oral evidence of the contents of the document became admissible. See also Section 97(1) (c) and (2) (a) of Evidence Act 2004.
I submit that a receipt is a sufficient memorandum of sale of land to make such transaction enforceable at law. See Yaya v. Mogoga (1947) 12 WACA 132; Also Auerbach v. Nelson (1919) 12 CH 383.
I content also with respect to learned counsel on the other side that it is erroneous to assert as per page 8 of the appellants brief that there was no evidence to satisfy the court that the Plaintiff/Respondent bought the land in 1977. Exhibit A before the trial court is a certificate dated 1977 issued to the Plaintiff/Respondent over the disputed land. There is also clear evidence that Plaintiff was put in possession of the land and even deposited sand on it.
On the question relating to damages awarded I submit that in the case of Asiegbu v. Olibie (2010) All F.W.L.R. Pt. 516 at page 547, the Court of Appeal defined damages as follows:-
“Damages is a sort of a pecuniary compensation, of indemnity recoverable in the courts by any person who suffered a loss, detriment or injury, be it to his person, property or right through the unlawful or wrongful act or omission or negligence of another.”
I submit therefore that the Defendant/Appellant not having title to the land is nothing but a trespasser to the land and the award of N100, 000.00 is not only justifiable but in line with the law. I therefore, urge Your Lordships to dismiss this appeal.
It is trite that a Plaintiff succeeds on the strength of this case. I submit that the Plaintiff/Respondent was able to prove his title which he traced to a sale between him and Dominic on the one part as joint purchasers and Jauro Yahaya on the other part as Vendor. While Dominic has being in possession and quilt enjoyment of his own share of land since the purchase.
On the contention on the other side that the Plaintiff case should fall because no written agreement was tendered between the plaintiff and Jauro Yahaya, I submit that ownership of land is not proved only by production of agreement between the parties. The fact that PW2 has been in possession of part of the land which was purchased together with the Plaintiff/Respondent is proof of ownership of adjacent or connected land which is material to the determination of Plaintiff/Respondents ownership of the land in dispute. Also the fact that a receipt was issued but got missing and the fact that the Plaintiff/Respondent deposited sand on the land is positive act of possession of the land. In 1978, Plaintiff also became the holder of a deemed grant of a right of occupancy under the Land Use Act.
BRIEF OF ARGUMENT OF APPELLANT IN HIS BRIEF
As regards the respondent’s submission on page 5 paragraph 5.5 of the Respondent’s brief of argument, I submit to Your Lordship that the Plaintiff’s/Respondent’s root of title is traced to sale and not inheritance as in traditional history. Therefore the case of Olokotin v. Sarumi (Supra) is distinguishable with the present case and does not aid the Respondent.
My Lords, I submit that the principle based on the maxim “qui prior est tempore portier est jure” laid down in the case of Shobajo Ikotun (Supra) relied upon by the Respondent is misconceived because in this case the Plaintiff/Respondent did not lead evidence to prove sale of the land to him in 1977 as pleaded which could have made his title first in time, stronger and better than that of the Defendant/Appellant.
Appellant counsel further submitted in reply to paragraph 5.12 of the Respondent’s brief that the purchase of the land in 1977 and thereafter dividing same into two is not born out of the evidence and we submit with emphasis that it is not the function of the trial judge to supply evidence or carry out the arithmetic in arriving at an answer. See the case of Ikenyi v. Ofune (1955) 2 NWLR pt 5 page 1, Rt. 13 where the Supreme Court held as follows:
“It was not the function of the trial Judge by his own exercise and ingenuity to supply the arithmetic of arriving at an answer which only evidence tested under cross examination could supply.”
In reply to paragraph 5.14 page 5 of the Respondent’s brief of argument, I submit that, “Pleading is not and cannot take the place of evidence. See Bank of the North & Anor v. Julius Babatunde & Anor 2002 FWLR, 1452 at 1465 in which it was held.
“The aim of pleading is to set out clearly the facts which parties reply on for their case. The law however is that an averment in a pleading is not tantamount to evidence and can never be considered as such.”
See also Alhaji Baba Hassan v. Moh’d Barda (1999) NWLR Pt 587 at page 466; Akufosele v. Ijose (1960) SCNJ 447. In Yusuf v. Adegoke (2008) 157 LRCN page 172 the Supreme Court held that:
“Any material fact pleaded must be supported by evidence.”
My Lords, I submit that the evidence condition or content of the original receipt was not pleaded and/or made an issue by the Defendant/Respondent’s pleading therefore the secondary evidence of its existence or content as contemplated by Section 89 of the Evidence Act 2011 (as amended) was uncalled for and cannot assist the Respondent’s case.
I submit that it was not proved that the original receipt is lost. “I do not know where the receipt issued to me by Jauro Yahaya is now” on page 25 of the record of proceedings is not the same and does not mean. “The original receipt is lost” as argued on page 8 para. 5.18 of the Respondent’s brief.
My Lords, assuming without conceding, that the original receipt is lost no possible search for it has been made as required by Section 89(c) of the Evidence Act 2001 (as amended) to make it admissible under Section 90 of the Evidence Act 2011.
In reply to paragraph 5.19 at page 9 of the Respondent’s Brief, appellant counsel submitted that the receipt which was not before the court is not a memorandum of sale of the land to the Plaintiff/Respondent. See Etajata. v. Ologbo (2008) 159 LRCN 120 at 156, SC it was held that:
“Purchase receipt is not the same with written agreement of sale of land even native law and custom.”
I submit that Plaintiff/Respondent who was PW1 he was not in possession of any connected or and adjacent to the land in dispute.
In view of the above, I urge Your Lordships to discountenance the Respondent’s argument and allow the appeal.
RESOLUTION OF SINGLE ISSUE
I have quoted verbatim each side argument, argument in their brief of argument.
The appellant’s amended brief is dated and filed on the 1st of June, 2012.
The reply brief to the respondent brief dated and filed on 24th April, 2012.
The respondent brief is dated and filed 23rd March, 2012 and it is deemed filed properly on 19th March, 2012.
The appellant amended brief of argument is deemed properly filed on 28 June, 2012.
I. S. Adamu Esq.; is counsel to the Appellant and E. O. Odo Esq.; is counsel to respondent.
We repeat below the single issue.
Whether having regards to the claim of the Plaintiff/Respondent vis-a-vis the evidence before the trial court and the defence it was RIGHT FOR THE COURT TO DECIDE that the Plaintiff/Respondent has proved his claim to WARRANT THE DECLARATION AND AWARDING IN HIS FAVOUR.
We have carefully considered the legal arguments and legal conclusions of EACH SIDE AND WE HAVE UNANIMOUSLY AGREED TO ANSWER AND SAY THAT TRIAL LOWER COURT PRESIDED BY HON. JUSTICE ADAMU BUBA MUBI (now RETIRED) WAS RIGHT FOR THE DECISION that Plaintiff/Respondent has proved his claim to warrant the declaration and award in his favour.
We state below our reasons for saying that the decision or Judgment of lower court was right and that Plaintiff/Respondent has proved his claim.
(1) He Plaintiff/Respondent has led evidence showing that he and one Dominic purchased the land in dispute measuring 100 feet by 50 feet situate at Yelwa Ward Mubi Town, Adamawa State. The two bought same from Jauro Yahaya and paid N640.00k each of them contributed N320.00k each. They shared it equal and Plaintiff/Respondent proved that part owned by Dominic is still in his possession.
We agree that plaintiff/Respondent by evidence led established as to how the land was founded and how he came into possession’97 Dominic testified as PW2. The trial court rightly in our view accepted Dominic (PW2) evidence that he Dominic has developed his ‘bd portion of the land and has become CARETAKER of the adjacent Plaintiff/Respondent ‘bd portion. See page 25 to 25 of the record of proceedings.
2. We agreed and accept the finding of the trial Judge that Plaintiff/Respondent clearly discharged his BURDEN OF PROOF and proved root of title to Jauro Yahaya who died before this case was filed in the High Court Mubi.
We agree that DW1 Defendant/Appellant purportedly bought same land in 1978 while Plaintiff/Respondent purchased same in 1977. See page 22 line 15 to 18. We agree with and accept all the cases cited (supra) in the respondents brief of argument page 22, lines 15, 16, 17 and 18.
We agree and hold that No VALID TITLE is passed to the 2nd purchaser or Defendant/Appellant 1978 (late purchaser) by Jauro Yahaya now late.
(3) We agree and accept respondents counsel cases and submission on effect of the fact that that each side claim or root of title is from the same Jauro Yahaya who is dead and so cannot appear to say who bought in 1978 and who bought in 1977. We rely on argument of purchaser. We accept trial court finding that 1st purchaser, respondent, is valid and that of 2nd purchaser. Appellant, ALH. ADAMU is not valid and is null and void without any effect. The trial Judge in our view rightly declared respondent the owner of this disputed Plot measuring 50 ft by 100 ft.
The law is loud and clear that the burden of proof of title to land is on the Plaintiff and he must discharge that burden to obtain judgment.
See Kozeum v. Mosaku (2007) (Pt.1064) 523 Alli Adekanbi v. Adebayo Ayorinde (1990) LPELR 102, Kodilinye v. Odu (1935) 2 WACA 336 Ekpo v. Ita. 11 NLR 65, Cray v. Cray (1967) NWLR 52 Aderemi v. Joshua Adedire (1966) NWLR 402 P. 403.
It is now an age long principle of law that there are different ways of proving title to land and among the ways are the following five (5) legally accepted means:
a. Proof by traditional evidence
b. Proof by production of documents of title duly authenticated, unless they are documents twenty or more years old produced from proper custody.
c. Proof by act of-ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the interference that the persons exercising such propriety acts are the true owners of the land.
d. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence, of ownership not only of the particular piece of land with reference to which such acts are done, but also of other land so situate and connected therewith by locality or similarity that the presumption under section 46 and 146 of the Evidence Act applies and the difference can be drawn that what is true of one piece of land is likely to be true of the other piece of land.
e. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See Obineche v. Akusobi (2010) 12 NWLR (Pt.1208) 383 SC, Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) pg. 177, Adeosun v. Jibesin (2001) 11 NWLR (Pt. 724) pg. 290, Piaro v. Tenalo (1976) 12 SC Pg. 31 Idundun v. Okumagba (1976) 9 – 10 SC 227 Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR Pt. 7 page 393, Okonkwo v. Okolo (1988) NWLR (Pt.79) 632.
In the case of Mrs. Oluwaseun Agboola v. UBA & 2 Ors. (2011) LPELR 935 (SC) it was held thus:-
“The five ways of proving title to land, as stated in the dumdum case supra are:-
a. By traditional evidence.
b. By production of documents of title.
c. By proving facts of ownership numerous and positive enough to warrant and inference that the person is the true own (such as selling, renting out or farming on all or part of the land).
d. By proving acts of tong possession and enjoyment of the land under section 145.
e. By proof of possession of connected or adjacent land (the contiguity rule) per Mukhtar, JSC (p.23 paras. C-E). See also Idundun v. Okumagba (supra)”
It is trite law that in a claim for declaration of title to land, a Plaintiff has the burden of proving his case upon his own cogent and credible evidence and cannot rely on the weakness of the defendant’s case. However a Plaintiff can take advantage of evidence by the defence which supports his case.
See Muhael Eyov. Emeka Collins Owoba & Anor. (2011) LPELR-1873 (SC), Oniasaodu v. Elewuju (2008) 13 NWLR (Pt.998) pg. 517, Maduonwu v. Nnalue (1999) 11 NWLR (Pt. 628) pg. 673, Akinola v. Oluwo (1902) 1 All NLR 224.
In the case of His Highness, Alhaji A.G. Nomoh & Ors. v. His Highness, Alhaji I. M. Umoru & Ors, (2011) LPELR 8130 (SC), the Supreme Court held as follows:-
“It is settled law and with regard to this that the onus is on the Plaintiffs to prove their case in accordance with their pleadings that they have acquired title to land in dispute under native law and custom and not merely to show a better title them, the Defendants and to succeed on the strength of their case based on the preponderance of evidence in the case and they cannot, rely on the weakness of the defence case except where such weakness supports their case.
It is also settled that in cases as this one the onus does not shift on the defendant unless the Plaintiff has successfully discharged the onus on him. I think I should state these prepositions of the law early enough so as to position the above trial court’s finding of fact in the storm’s eye in this appeal in their proper contexts”.
See Echolor v. Osayemde (1992) 8 NWLR (Pt.249) 524 at 526, Kodilumye v. Odu 2 WACA 336, Wolucham v. Gudu & Anor. 5 SC, 291 (1981) 12 NSCC 214, Ngene v. Igbe (1991) 7 NWLR (Pt.203) 388 at 361.
We therefore agree with trial Judge and Counsel for respondent that the Principle of Law (1) QUI PRIOR EST TEMPORE POTIOR EST JURE as well as the legal maxim of “NEMO DAT QUOD NON HABET” correctly apply here. What is first in time is better in Law and you cannot sell or give what is not you own or what you have already sold or given.
The Plaintiff/Respondent’s title is cleaner and valid and is still subsisting Defendant/Appellant title never existed before or now or in the future as it is null and void ab initio. This single issue is resolved in favour of the respondent HARUNA GULAK.
The trial Judge rightly accepted Plaintiff/Respondent’s version of the fact that:
(1) There was receipt issued to the purchasers HARUNA GULAK AND DOMINIC by late Jauro Yahaya but Plaintiff/Respondent missed the receipt or misplaced it.
(2) That HARUNA GULAK Plaintiff/Respondent lost or miss placed his own receipt as Plaintiff/Respondent bought 1/2 and Dominic bought 1/2 in 1977 the defendant ALHAJI ADAMU came on to this land in August 2003 purporting to have bought same 1/2 from same late Jauro Yahaya. The defendant/Appellant quickly “illegally” and “meticulously” fenced and developed inside this fence to ward off the true owner; HARUNA GULAK.
We repeat again that trial Judge finding and holding is correct valid and subsisting. The failure of Plaintiff/Respondent to PHYSICALLY TENDER RECEIPT OF SALE OR PURCHASE at the lower court does not and will never affect the title or finding of lower court and we conclude that this appeal is without any DROP OF MERIT OR SUBSTANCE and it is a total failure and it deserve to be dismiss. We therefore unanimously dismiss this appeal No.CA/YL/45/2011.
This single issue is resolved in favour of respondent and against appellant. All the grounds of appeal of the appellant also fail and are dismissed.
This case or claim started on 8th December, 2003 (10 years ago) and trial Judge delivered Judgment on 30th March, 2009 (Six years later) and Plaintiff/Respondent won after 16 years legal battle. From 30th March, 2009 to today JANUARY 2013 it is another 4 years of legal battle which Plaintiff/Respondent is the 2nd time winner. The sum total is that Plaintiff/Respondent has so far waited or is waiting to get legally and lawful Plot of Land which he bought for (N320.00) three hundred and twenty Naira only in 1977; to be returned to him by Defendant/Appellant ALH. ADAMU. From 1977 to 2007 is 30 years. From 2007 to 2013 is 6 years so total years of deprivation by Defendant/Appellant alleged trespasser is 36 years. Defendant/Appellant must therefore give back to Respondent his Plot of Land 50 ft x 100 ft as he found it by demolishing his illegal and unlawful build structure if any. I am obliged to state here that the principle: quicquid plantatur solo solo cedit; which means what is affixed to soil belongs to the soil applies in this case culminating in this appeal.
On the whole this Appeal is lacking in merit and is hereby dismissed with the cost of N50,000 awarded against the appellant. We accordingly affirm the decision of Justice Adamu Buba Mubi delivered on 3rd March, 2009 including the order as to N100,000 damages made therein. We commend the trial Judge sagacity, diligence in handling of this case from day one to the end of this case between 2003 to 2009 a period of 6 years.
Appeal dismissed.
SOTONYE DENTON WEST, J.C.A.: I had the pleasure of reading in draft the Judgment of my learned brother, Abubakar Alkali Abba, J.C.A. just delivered. I agree further as follows:
The law is loud and clear that the burden of proof of title to land is on the Plaintiff and he must discharge that burden to obtain judgment.
See Kazeum v. Mosaku (2007) (Pt.1064) 523 Alli Adekanbi v. Adebayo Ayorinde (1990) LPELR 102, Kadilinye v. Odu (1935) 2 WACA 336 Ekpo v. Ita. 11 NLR 65, Cray v. Cray (1967) NWLR 52 Aderemi v. Joshua Adedire (1966) NWLR 402 P.403.
It is now an age long principle of law that there are different ways of proving title to land and among the ways are the following five (5) legally accepted means:
a. Proof by traditional evidence
b. Proof by production of documents of title duly authenticated, unless they are documents twenty or more years old produced from proper custody.
c. Proof by act of ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the interference that the persons exercising such proprietory acts are the true owners of the land.
d. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence, of ownership not only of the particular piece of land with reference to which such acts are done, but also of other land so situate and connected therewith by locality or similarity that the presumption under section 46 and 146 of the Evidence Act, 2011 applies and the inference can be drawn that what is true of one piece of land is likely to be true of the other piece of land.
e. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See Obineche v. Akusobi (2010) 12 NWLR (Pt.1208) 383 SC, Ali v. Alesinloye (2000) 6 NWLR (Pt.660) pg. 177, Adeosun v. Jibesin (2001) 11 NWLR (Pt.724) pg. 290, Piaro v. Tenalo (1976) 12 SC Pg. 31 Idundun v. Okumagba (1976) 9 – 10 SC 227 Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR Pt.7 page 393, Okonkwo v. Okolo (1988) NWLR (Pt.79) 632.
In the case of Mrs. Oluwaseun Agboola v. UBA & 2 Ors. (2011) LPELR 935 (SC) it was held thus:-
“The five ways of proving title to land, as stated in dumdum case supra are:-
a. By traditional evidence.
b. By production of documents of title.
c. By proving facts of ownership numerous and positive enough to warrant and inference that the person is the true own (such as selling, renting out or farming on all or part of the land).
d. By proving acts of long possession and enjoyment of the land under section 145.
e. By proof of possession of connected or adjacent land (the contiguity rule) per Mukhtar, JSC (p.23 paras. C-E). See also Idundun v. Okumagba (supra)”
It is trite law that in a claim for declaration of title to land, a Plaintiff has the burden of proving his case upon his own cogent and credible evidence and cannot rely on the weakness of the defendant’s case. However a Plaintiff can take advantage of evidence by the defence which supports his case.
See Muhael Eyov v. Emeka Collins Owoba & Anor. (2011) LPELR-1873 (SC), Oniasaodu v. Elewuju (2008) 13 NWLR (Pt.998) pg. 517, Maduonwu v. Nnalue (1999) 11 NWLR (Pt. 628) pg. 673, Akinola v. Oluwo (1902) 1 All NLR 224.
In the case of His Highness, Alhaji A.G. Nomoh & Ors. v. His Highness, Alhaji I. M. Umoru & Ors, (2011) LPELR-8130 (SC), the Supreme Court held as follows:-
“It is settled law and with regard to this that the onus is on the Plaintiffs to prove their case in accordance with their pleadings that they have acquired title to land in dispute under native law and custom and not merely to show a better title to them, the Defendants has to succeed on the strength of their case based on the preponderance of evidence in the case and they cannot rely on the weakness of the defence case except where such weakness supports their case.
It is also settled that in cases as this one the onus does not shift on the defendant until the Plaintiff has successfully discharged the onus on him. I think I should state these prepositions of the law early enough so as to position the above trial court’s finding of fact in the storm’s eye in this appeal in their proper contexts”.
See Echolor v. Osayemde (1992) 8 NWLR (Pt.249) 524 at 526, Kodilumye v. Odu 2 WACA 336, Wolucham v. Gudu & Anor. 5 SC, 291 (1981) 12 NSCC 214, Ngene v. Igbe (1991) 7 NWLR (Pt.203) 388 at 361.
It is in view of the foregoing and the fuller reasons in the Judgment just delivered, I too dismissed the appeal for lacking in merit.
I abide by all the orders including order as to cost.
IGNATIUS IGWE AGUBE, J.C.A.: I have been opportuned to read the judgment of my learned brother A. A. Abba, JCA; in advance and I am in total agreement with his reasoning and conclusion that this Appeal lacks merit and should accordingly be dismissed on the doctrines of priority and nemo dot quod non habet.
I am also in total agreement with the position taken by my Lord that the title of the Respondent is neater and valid and still subsists whereas the Defendant, who bought what did not belong to the person who sold to him, has a void title to the land in dispute. The learned trial Judge who had the singular opportunity if watching and hearing the witnesses testify was in a better position to appreciate the credibility of their testimonies. Having concluded that the plaintiff Respondent had better title, this Court is not in a position to interfere with the findings of fact more so as his findings are not perverse.
I therefore have nothing more to add than to adopt the more elaborate reasons advanced by my learned brother in his lead Judgment to dismiss the Appeal and affirm the judgment of the learned trial Judge. I also abide by all consequential orders including costs.
Appearances
I. S. Adamu Esq. For Appellant
AND
E. O. Odo Esq. For Respondent
