ALHAJI LAWAL DARMA v. ALHAJI MAIWADA BATAGARAWA
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of October, 2002
Before Their Lordships
ISA AYO SALAMIJustice of The Court of Appeal of Nigeria
MAHMUD MOHAMMEDJustice of The Court of Appeal of Nigeria
BABA ALKALI BA’ ABAJustice of The Court of Appeal of Nigeria
ALHAJI LAWAL DARMAAppellant(s)
ALHAJI MAIWADA BATAGARAWARespondent(s)
SALAMI, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice of Katsina State of Nigeria, the plaintiff claimed as follows:
a. A declaration of title over a parcel of land lying and situate at or near Flour Mills Katsina, which he bought from one Alhaji Halidu Rafindadi.
b. An injunction restraining the appellant, his agents, servants and privies from raising any claim or trespassing over the piece of land.
c. General damages for trespass in the sum of N5,000.00.
The plaintiff with leave of the trial court filed his statement of claim. The defendant on entering his appearance filed his statement of defence whereby he denied the plaintiff’s claim. The parties having joined issues, the plaintiff called two witnesses and tendered a photographic copy of a sale agreement in support of his claim, while the defendant called four witnesses including himself in support of his defence. Learned trial Judge, Sanusi, J. (as he then was) in a reserved and considered judgment entered judgment in favour of the plaintiff.
The defendant being unhappy with the decision appealed to this Court on two original and four additional grounds of appeal which were filed with the leave of the Court on 22nd May, 2002.
The defendant in prosecution of his appeal formulated four issues from his 4 additional grounds of appeal. The issues which the defendant (hereinafter referred to as the appellant) framed from the 4 additional grounds of appeal read as follows:
1. Whether the respondent proved title or is entitled to declaration of title over the disputed land? Ground 2 of the additional appeal.
2. Whether there is onus of proof on the appellant who did not counter-claim for title to the disputed land?
Ground 3 of the additional grounds of appeal.
3. Whether the learned trial Judge properly acted on exhibit 1 written in Hausa language? Ground 1 of the additional grounds of appeal.
4. Whether the judgment is supported by credible admissible evidence proffered at the trial? Ground 4 of the grounds of appeal.”
Learned counsel for the appellant abandons the 2 original grounds of appeal and urges the court to strike them out. The appellant having failed to submit an issue or issues in support of the original grounds of appeal the same are hereby struck out.
On the other hand, the plaintiff framed only one issue to meet the challenges foisted on him in the appellant’s four issues which issue respectfully is academic and reads as follows:
“Whether having regards to the respondent’s statement of claim and the evidence adduced before the trial court, the court was right in coming to the conclusion that the respondent has proved his claim on the balance of probability.”
It seems to me respectfully that the respondent is only contesting appellant’s issue 4 and has no answer to appellant’s remaining three other issues, 1, 2 and 3. It appears, however, that the questions asked by the appellant in his four formulations can be accommodated under one issue as they deal essentially with evaluation of evidence and appreciation of the party on whom onus of proof laid. As a matter of convenience, I propose to take the issues seriatim, in the pigeon hole into which the appellant had slotted them, if for no other reason than convenience.
Appellant’s issue 1 is framed from his ground 2 which I reproduce immediately hereunder:
“2. The learned trial Judge erred in law when he held that the plaintiff/respondent has proved title over the land in dispute when the plaintiff/respondent’s vendor (DW1) testified that the entire parcel of land he DW1 sold to the plaintiff/respondent was acquired by the Katsina State Government for building of Katsina Flour Mill and access road to the said Mill.
PARTICULARS OF ERROR:
(a) The plaintiff/respondent in his statement of claim and evidence traced his root of title over the land in dispute to Alhaji Halidu Rafindadi.
(b) Alhaji Halidu Rafindadi who testified as DW1 at the trial stated that:
“The plaintiff’s large portion of the land he bought from me fell in the area the government wanted to revoke for the purpose of establishing Katsina Flour Mill and the only portion left also fell on the access road to the proposed Flour Mill extending also up to Alhaji Biliya’s portion of the land he bought from me.”
(c) The plaintiff/respondent admitted under cross-examination that he was paid compensation of N1 ,510.00 for the acquisition of the land in dispute by Katsina State Government.”
The totality of this ground of appeal, in my respectful view, is that the respondent had no title to the land which was declared for him by the learned trial Judge. The question, therefore is, on the respondent’s showing, is the land in dispute, the property respondent purchased from his vendors Alhaji Halidu Rafindadi, the common vendor of the respondent, the DW1 and one Alhaji Biliya Ahmed who eventually sold a portion of his own acquisition to the respondent still respondent’s property? I do not think, therefore, that this issue does permit of argument on joinder and non joinder of party or parties nor failure to call a particular witness or witnesses. The simple dispute here is whether, contrary to the finding of the learned trial Judge, respondent’s property in that location had not been acquired for overriding public purpose? Any argument canvassed outside this perimeter is outside the compass of this issue and therefore irrelevant thereto.
In this connection, the appellant contended in the appellant’s brief that in paragraphs 3 and 9 of his statement of defence he averred that respondent sold 2 plots to him for N12,000.00 and thereafter one Alhaji Biliya Ahmed claimed ownership of the plot now in dispute and traced his root of title to respondent’s vendor. Learned counsel for appellant further contended that in spite of this respondent failed to join issue with him on this point. Learned counsel, in this connection, referred to the testimony of DW1 and the respondent on the said averments. Learned counsel then submitted that the finding of the learned trial Judge and the inference drawn from the evidence adduced by first defence witness did not flow from the evidence of that witness.
It is apt, at this stage to read the pleadings and evidence referred to in the submission of the learned counsel for the appellant which averments and evidence he alleged were neither denied nor controverted. Paragraphs 3 and 9 of the statement of defence aver as follows:
“3. The defendant denies paragraph 3 of the plaintiff’s statement of claim and further avers that the plaintiff has sold to him two plots of land situate near Darma Farm along Dutsinma Road, in Katsina township, at the sum of N12,000.00 and those 2 plots were later proved not to belong to the plaintiff was convicted of cheating by Area Court No. 11, Katsina. A copy of judgment is hereby pleaded and shall be relied upon by the defendant at the hearing of the suit.
9. In further answer to paragraph 9 of the plaintiff’s statement of claim the defendant avers that after the transaction referred to in paragraph 7 above, he was approached by one Biliya Ahmed with a threat of court action over the plots he bought from the plaintiff because the plaintiff was not the owner, as his own portion, which both the said Biliya Ahmed and the plaintiff bought from the same vendor has been submerged by the Katsina Flour Mills Ltd. This prompted the defendant to lodge a direct complaint against the plaintiff before the Area Court No. 11 , Katsina and the plaintiff was convicted and fined …”
The respondent was required, in the circumstance, under Order 24 rule 3(1) of Katsina State High Court (Civil Procedure) Rules, Cap. 60, of the Laws of Katsina State of Nigeria, 1991, to have filed a reply to the statement of defence to enable him join issue with the appellant in respect of the fresh issue canvassed in the statement of defence. The evidence the respondent led challenging the appellant’s averment that the respondent’s land had been acquired goes to no issue. See Mba v Agu (1999) 3 NWLR (Pt.595) 400, (1999) 9 SCNJ 84, 102 and Tende & Ors. v. A.-G. of the Federation & Ors. (1988) 1 NWLR (pt. 71) 506 at 517 where this Court held per Kolawole, J.C.A that:
“The plaintiffs/appellants did not file a reply to this important averment which, in my opinion, was a policy decision. If they did not agree with the assertion they were in duty bound to file further pleadings to deny the averment by virtue of Order XXXIII rule 16 of the High Court Rules of Eastern Nigeria Cap. 61 applicable to Rivers State.”
His failure to join issue with the appellant on those 2 paragraphs amounts to admission.
Every allegation of fact, if not denied specifically or by necessary implication, or stated to be not admitted shall be taken as established at the hearing: Pioneer Plastic Containers Ltd. v. Commissioners of Customs & Excise (1967) Ch. D 597.
Apart from the implication of respondent’s neglect to join issue with the appellant on the issue of the respondent’s interest in the area having been extinguished or acquired for overriding public interest, there is evidence on the record supporting the appellant’s averment. The respondent himself under cross-examination stated as follows:
“It is true I had a dealing with the department of land and survey Katsina State in relation to this parcel of land. The dealing was regarding claim compensation on the acquisition of the said land by the State Government because all the owners of land in the area were paid compensation except myself. I petitioned to the Commissioner for Land who ordered for the matter to be investigated. During the investigation, part of my land fell on the space demarcated for road and they promised to pay me compensation on it and on the remaining part I was advised to apply for allocation of same by the State Government. I was paid N1500 as compensation on the space of my land falling on the road. The other part I applied but failed to get tax clearance. Later I discovered that the defendant was working in the said portion which I applied for allocation earlier”.
Notwithstanding respondent’s denial that his interest in the area fell completely within the land acquired, it is clear from his own personal showing that his land there was wholly consumed by the acquisition of the Katsina State for the construction of Katsina Flour Mills otherwise he would not be required to apply to the Government for allocation. It is unreasonable for a body which does not own a property to require its owner to apply to it for allocation. I am strengthened in this view by the evidence of the first defence witness, the vendor of both respondent and the appellant’s predecessor in title, Alhaji Rafindadi. Alhaji Halidu Rafindadi, contrary to the respondent’s testimony that only a portion of his land was affected by the acquisition, testified as first defence witness that the entire land which the witness sold to the respondent was acquired for the flour mill. The relevant portion of the evidence adduced by the witness is recited hereunder as follows:
“After the assessment and measurements by the Land Department official, the plaintiff’s large portion of the land he bought from me fell in the area the government wanted 10 revoke for purpose of establishing Katsina Flour Mill and the only portion left also fell on the access road to the proposed flour mill. … ” (Underlining mine)
Nevertheless, learned trial Judge held that the respondent’s case found solace in the evidence of that appellant’s witness when he said in his reserved judgment that:
“The plaintiff did not call Alhaji Halidu Rafindadi the person he allegedly bought the land from to testify, but the defendant called him to testify as his first witness his testimony, however, supports the plaintiff’s case in that he admitted selling his land near flour mills to the plaintiff and another portion to one Alhaji Biliya.”
It is true that first defence witness admitted selling his land in the vicinity of the flour mill to the respondent. It is equally true that the same witness testified that the parcel of land he sold to the respondent was acquired by the State and the parcel of land either form the premises of the Katsina Flour Mill or access road to the mill. Although the learned trial Judge was entitled to accept the testimony of a witness in part and reject the other part: Aremu v. Board of Customs & Excise (1965) NMLR 258. Learned trial Judge was entitled to believe a witness in part and disbelieve him in part but learned trial Judge, in the circumstance of this appeal, has not exercised such option. It is therefore presumed that he accepted the evidence of first defence witness in toto. It necessarily follows that the land sold by the first defence witness to the respondent near the flour mill on the strength of the first defence witness evidence no longer belongs to the respondent the same having been acquired by the Katsina State Government for overriding public purpose and vested in Katsina Flour Mill Limited.
The respondent’s case is only entitled to derive support from the appellant’s case if such appellant’s case supports respondent’s claim see Akinola & Anor. v. Oluwu & Ors. (1962) 1 SCNLR 352, (1962) 1 All NLR 224; Ibeziako v. Nwagbogu & Ors. (1972) 1 NLR (Pt.2) 200, (1973) 1 All NLR 113 and Lawson v. Afani Continental Co. (Nig.) Ltd. & Anor. (2002) 2 NWLR (Pt. 752) 585, 622. The evidence of first defence witness supports appellant’s averment in paragraph 9 of the statement of defence to the effect that respondent’s land which he acquired from first defence witness had been acquired and given to Katsina Flour Mills Limited. I respectfully agree with the submission of the learned counsel for appellant that the evidence of first defence witness that respondent’s interest in the land which first defence witness sold to the respondent had been extinguished and can therefore not ground a claim for declaration of title in favour of the respondent.
I answer issue 1 in the negative and ground 2 of the grounds of appeal from which it is framed succeeds, and it is allowed.
On issue 2, learned counsel for appellant submitted that a plaintiff, in an action for a declaration of title, must succeed on the strength of his own case and not on the weakness of the defendant’s case. He relied on Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 and Amadi v. Orisakwe (1997) 7 NWLR (Pt. 511) 161, 173. Learned counsel further submitted that the appellant who did not counter-claim for title has no burden to prove purchase of the land as required or demanded of him by the learned trial Judge.
I agree with the learned counsel for appellant that a plaintiff in an action for a declaration of title must succeed on the strength of his own case and not on the weakness of the defence. The respondent’s case must succeed on its own strength and not on the failure of the defendant to tender judgments of various courts which he pleaded to support or strengthen his case. Neither is it his duty to tender a sale agreement since he did not counter-claim for title to the same parcel of land. The question is, therefore, whether respondent’s case preponderates. But this rule does not apply where the defendant’s case lends support to the plaintiff’s case. See Kodilinye v. Odu (1935) 2 WACA 331 which is as valid today as it was when it was first pronounced upon by the erstwhile West African Court of Appeal. The decision was cited and followed in the case of Aiyedun T. Jules v. R. Ajani (1980) 5-7 SC 96,106. See also Akinola v. Oluwu (supra), Ibeziako v. Nwagbogu (supra), (1972) 2 ECSLR (Pt. 1) 335 and Atuanya v. Onyejekwe & Anor. (1975) 3 SC 101.
The learned trial Judge did not point to any material in the appellant’s case which gave succour to the respondent. He merely enumerated weaknesses in the appellant’s case which do not enure to the respondent. The failure to lead such evidence in support of his defence or pleadings merely shows that the defence is not proven or abandoned. See Balogun v. Amubikanhun (1985) 3 NWLR (Pt.11) 27. I do not appreciate how an abandoned fact energises the respondent’s case. The respondent should not be entitled to judgment simply because the defendant abandoned his defence or part thereof. Judgment should not be handed down to the plaintiff merely because the defendant abandoned his defence by defaulting to lead evidence in support therefor. The case ought to be determined on the cogent and credible evidence of the plaintiff, respondent herein and not on the failure of the defendant to lead evidence. The appellant qua defendant had no burden of proof the burden is on the respondent who sought a declaration of title to an interest in land which right had been extinguished.
The correct position in proving title to land places onus of proof on the plaintiff to satisfy the court that he is entitled to the declaration he is seeking.
The standard of proof in such cases is not different from that required in civil proceedings which is no more than proof on preponderance of evidence. Kaiyaoja v. Egunla (1974) 12 SC 55, 61. The learned trial Judge wrongly placing burden of proof on the appellant to establish a claim which he did not seek resulted in a miscarriage of justice.
This issue is answered in the negative, ground 3 of the grounds of appeal succeeds and it is allowed.
Learned counsel for appellant on issue 3 submitted that it is settled that a Judge cannot use his personal knowledge of a language to act on a document, written in a language other than English, to engage himself in its translation. He relied on the case Ojengbede v. Esan (2001) 18 NWLR (Pt. 746) 771 and Lawson v. Afani Continental Co. Nigeria Ltd. & Anor. (2002) 2 NWLR (Pt. 752) 585, 612.
I agree with the learned counsel for appellant that a court cannot admit and rely on a document written in a language other than the official language of the court which, in the instant case is English. The language of all courts of record in this country is English. The court cannot use its own knowledge of the language to engage in the translation of the document without compromising its own position as an arbiter by playing the dual role of a Judge and a witness whose evidence or view of the content of the document had not been brought out and subjected to forensic test of cross-examination in open court.
It is the duty of a party who intends to rely on a document which is not rendered in English to tender its translation in English along with it or call a witness to translate it from the witness box. In this connection, I said, in the case of Lawson v. Afani Continental Co. Nigeria Ltd. (supra) at p. 612 that:
“The use the trial court put exhibit 1 respectfully is improper because he has thereby combined his role as adjudicator with that of a translator who ordinarily ought to be called to testify in-chief, cross-examined and, if need be, re-examined. If the appellant left the document untranslated until he closed his case the only course left to the court is to discountenance it. By charting the course it did, it abandoned its toga of impartiality and descended into the arena on the side of the party who produced the document that requires translation and did not translate it into the language of the court, English.”
The Supreme Court in the case of Ojengbede v. Esan (Supra) page 790 said:
“There is no doubt that the official language of superior courts of record in Nigeria is English and that if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by official interpreter of the court. A Judge cannot on his own engage in the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of a witness and an arbiter at the same time in the same proceedings. See Damina v. The State (1995) 8 NWLR Pt.415) 513 at 539 – 540. ”
Exhibit 1, written in Hausa, is described by the learned trial Judge as a sale agreement receipt. There is no doubt that the learned trial Judge must have relied on his personal knowledge of the language in which the receipt was written but he is not entitled to act as a Judge and a witness at the same time and in the same case. The defendant was denied, more importantly, the opportunity to test the competence and the understanding of the learned trial Judge of the language he professes and probably the accuracy or correctness of the translation he undertook in the comfort or recess of His Lordship’s chambers. It follows, contrary to the finding of the learned trial Judge, the respondent failed to justify and confirm the root of his title.
The answer to this question is also negative. Ground 1 of the grounds of appeal from which it derives succeeds and it is allowed.
On the last issue, the case of the respondent did not preponderate. There was no credible evidence supporting the finding of the learned trial Judge that the respondent proved his case against the defendant and is entitled to the reliefs or orders sought. He admitted both expressly and by reasonable inference that the land in respect of which, the plaintiff went to court to seek declaration of title had been acquired by the State for purposes of building a flour mill. The evidence of both the plaintiff, the respondent in this appeal, and the first defence witness did not support his claim. The evidence of first defence witness was erroneously found to be in support of the respondent’s claim. There is therefore no substance in the submission of the learned counsel for the respondent, in the respondent’s brief that the evidence of PW1, PW2 and even DW1 and DW4 established respondent’s claim. If anything the evidence of the plaintiff himself and those of the second defence witness dealt a coup degrace to the respondent’s case.
The four grounds of appeal having succeeded and allowed, the appeal succeeds and it is allowed. The decision of the learned trial Judge is set aside. The plaintiff’s claim fails and is dismissed. There is order as to costs which is assessed at N5,000.00 to the appellant.
MOHAMMED, J.C.A.: The judgment of my learned brother Salami, JCA which has just been delivered was read by me before today. I agree with the reasoning and conclusion that there is merit in this appeal which ought to be allowed.
It is trite that the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such a judgment however decrees no title to the defendant, he not having sought for the declaration. See observation of Webber, C. J. in the leading case of Kodilinye v. Odu (1935) 2 WACA 336 at 337-338. Thus in the present case, the respondent as the plaintiff at the court below who claimed for declaration of title, injunction and damages for trespass, having failed on the evidence brought by him to prove his case, his claim ought to have been dismissed in the absence of any counterclaim for title by the defendant now appellant.
Accordingly, I also hereby allow this appeal. The judgment of the lower court in favour of the respondent delivered on 18/02/1998 is hereby set aside and replaced with an order dismissing the plaintiff/respondent’s claim with N5,000.00 costs to the appellant.
BA’ABA, J.C.A.: I have read in advance the judgment of my learned brother, Salami, J.C.A. just delivered, and I agree with his reasoning and conclusions. I find that there is merit in this appeal because the respondent as plaintiff failed to establish his claim by evidence as required by law. Accordingly, I also allow the appeal and set aside the decision of the learned trial Judge. I abide by the order of costs made in the leading judgment.
U.A. Mohammed, EsqFor Appellant
J.Y. Nzuwe, Esq. (for A. D. Umar, Esq.)For Respondent