ALHAJI MOHAMMED ABUBAKAR v. MRS. ELIZABETH MOSES ANOBIH & ANOR
(2013)LCN/5891(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2013
CA/J/392/2007
RATIO
EVIDENCE: WHETHER FACTS THAT HAVE ADMITTED NEED FURTHER PROOF
It is trite law that what is admitted need no further proof.” For the avoidance of doubt Section 75 of the old Evidence Act (now replicated in Section 123 of the Evidence Act, 2011); provides thus:- “No fact need be proved in any civil proceedings which the parties to the proceedings or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings; Provided that the Court may, in its discretion, require facts admitted to be proved otherwise thon by such admission”.Per. IGNATIUS IGWE AGUBE, J.C.A.
EVIDENCE: THE DETERMINATION OF THE CREDIBILITY OF A WITNESS
The position I have taken herein finds considerable support from the decisions of the Supreme Court in a long line of cases amongst which are Fashanu v. Adekoya (1974) 6 SC 83; Sagay v. Sajere (2000) 6 NWLR (pt. 661) 360; Ebba v. Ogodo (1984) 1 SCNLR 372 and Nnordim v. Ezeani (2001) 5 NWLR (pt. 706) 203.
Indeed Musdapher, JSC; (as he then was) delivering the lead Judgment of the apex Court with whom Belgore, Kutigi, Kalgo, Akintan, Onnoghen and Ogbuagu, JSC; concurred, endorsed this settled position of the law in Agbi v. Ogbeh (2006) 5 SCNJ 314 at 337; when he held thus: “The determination of the credibility of a witness is within the province of the trial Judge. Where the veracity of a witness is in doubt, his evidence should carry no weight. It is trite law that the appraisal of evidence and the ascription of probative value of such evidence is the primary function of the trial Court. Thus where the issue turns on the credibility of witnesses on appellate Court which has not seen the witnesses must defer to the opinion of the trial Court. In such cases, the opinions of the trial Court ought normally to be preferred. The observation of the demeanour and the reaction of a witness to questions which are essential factors in the determination of the credibility testimony and the evaluation of the weight of evidence cannot he reproduced in the printed record. About these important factors, an appellate Court is only left to guesses and surmises. Per. IGNATIUS IGWE AGUBE, J.C.A.
JUDGEMENT: THE DEFINITION OF A JUDGMENT IN THE TRUE SENSE OF IT
A Judge is not bound to follow the method or methodology stated by Counsel in his Brief. Once a judgment of a trial Judge states the claim or relief of the Plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of Counsel, if Counsel are in the matter, reactions of the Judge to the arguments and the final order, an appellate Court cannot hold that the judgment is not properly written.” However, a judgment must of necessity include the reasons or ratio for so deciding. Thus, where the reasons for a judgment are non-existent or broadly defective because the issues in controversy have not been resolved, such a judgment is bereft of its basic or bare essentials and therefore susceptible to being jettisoned on Appeal. This is so because a judgment in the true sense of it, is meant to finally dispose/resolve all the issues in controversy between the parties to the extent that none of the issues should be left in our local parlance as “an overnight” for further adjudication. See per Nnaemeka -Agu JSC of blessed memory in Adeyemo v. Arokopo (1983) SSCNJ 1 at 16. Per. IGNATIUS IGWE AGUBE, J.C.A.
JUDGEMENT OF THE COURT: STEPS A JUDGEMENT OUGHT TO FOLLOW IN A CRIMINAL CASE
In the celebrated case of Polycarp Ojugbue & Anor v. Ajie Nnubia & 4 Ors. (1972) 6 S.C. 227 at 236, the Supreme laid down the essentials of an ideal judgment per Coker, JSC that: “A judgment of the Court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the results of such an exercise.” Since it would appear that the Judgment of the learned trial Judge now on Appeal is the subject of caustic and intense pillory, it is necessary to reflect and draw inspiration from the opinion of our erstwhile judicial oracles for guidance. Oputa, JSC; when confronted with a similar situation as we have found ourselves where the manner the judgment of the learned trial Judge was written was criticised, laid out the three steps a judgment ought to follow although in a criminal case (Isaac Stephen v. The State (1986) 12 SC 450 at pages 504 – 506) and posited that the most important and crucial stage is that stage when the trial Court deals with perception of facts, belief or disbelief of witnesses and findings and conclusions based on the evidence accepted by the trial Court. Here his Lordship:- “Having exercised his prerogative to believe or disbelieve having made his findings of fact the trial Court will draw conclusion from the facts as found. Finally, the trial Court would then discuss the applicable law against the background of the facts as found. Any judgment that follows the above pattern or something similar to it will be of invaluable help to the Courts of appeal as well as to the parties to the appeal. One would only wish that our trial Courts do approach the difficult task of writing judgment in some methodical and orderly fashion”. See also per Craig, J.S.C; in Theophilius Onuoha v. The State (1988) 7 SCNJ (pt. 1) 20 at 24 – 25; who also opined on this vexed subject that while most judgments start with a review of the case for the prosecution (Plaintiff in Civil matters) followed by that of the defence, followed by a Statement of the law and concluded by a finding on the facts, it is admitted that writing a judgment is an art in itself and there are more than one way of going about it. Accordingly, he posited that it is possible to have as many variations of judgments as there are Judges.
His Lordship then advised that “What is essential is that a Judge should allow a clear understanding of the facts in the case, of the issues involved, of the law applicable and from all these, he should be able to draw the right conclusion and make a correct finding on the evidence before him.” Coming home to the big question as to whether the learned trial Judge did evaluate the evidence, the Oxford Advanced Learner’s Dictionary defines the word “evaluate” as “vires to form an opinion of the amount, value or quality of something after thinking about it carefully”. It is also defined as synonymous with “assess”.
At page 216 of the Records the learned trial Judge alluded to Mogaji v. Odofin (1978) 3 SC 91; which is the locus classicus on evaluation of evidence although the dictum of Fatayi-Williams, JSC; (as he then was) was jumbled in the course of reproducing same. I shall now reproduce what the learned judicial icon of blessed memory said where, as in that case the Plaintiff (as in this present Appeal) claimed for Declaration of title and perpetual injunction, against the Defendants, but the learned trial Judge non-suited the Plaintiff. The parties appealed on the common ground that the judgment was against the weight of evidence as the present Appellant has posited in Ground 5 of the Amended Notice and Grounds of Appeal herein. Per. IGNATIUS IGWE AGUBE, J.C.A.
EVIDENCE: THE DUTY OF THE JUDGE TO DISCHARGE ON THE PREPONDERANCE OF EVIDENCE ADDUCED BY THE PARTY AND ON THE BALANCE OF PROBABILITIES
His Lordship stated the position of the law inter alia:
“Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge after a summary of all the facts must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate low to it, if that law supports it bearing in mind the cause of action, he will then find for the Plaintiff. If not the Plaintiff’s Claim will be dismissed.” He continued: “In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party but by the quality or probative value of the testimonies of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore in determining which is heavier, the Judge will naturally have regard to the following:-
a. Whether the evidence is admissible;
b. Whether it is relevant;
c. Whether it is credible;
d. Whether it is conclusive; and
e. Whether it is more probable thon that given by the other party.”
See again Bello v. Eweka (1981) 1 SC 101 at 118 – 120 where Kayode Eso, JSC (now of blessed memory) approved the above dictum also in his lead Judgment. Having gone through the entire gamut of the judgment of the learned trial Judge, I am of the candid view that the learned trial Judge had met all the Criteria as laid down by the leading authorities on the question of evaluation of evidence. As had been held in the cases earlier cited the learned trial Judge need not put down the testimonies of all the witnesses in the evaluation process before arriving at his findings and conclusion. Besides, the learned Counsel for the Appellant seems to base his case on the quantity of witnesses called but as I had said earlier, the Court below had the advantage of seeing and hearing the witnesses and was accordingly in the best position to assess their credibility and ascribe probative value to their testimonies. Once the Court had come to the right Judgment, the reason for the judgment (Whether wrong) is immaterial. Per. IGNATIUS IGWE AGUBE, J.C.A.
LAND LAW: ON WHOM THE ONUS LIES TO SATISFY THE COURT THAT HE IS ENTITLED ON THE EVIDENCE BROUGHT BY HIM TO THE DECLARATION OF TITLE
In attempting to resolve these issues let me restate the time honoured and established legal principle as was decided in the celebrated case of Kodilinye v. Odu (1935) 2 WACA 336 at 337 – 338 per Webber, CJ; which has been followed in a litany of cases by the apex Court and this Court on claims for declaration of title to land that: “The onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the 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 o judgment decrees no title to the Defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somehow confused, and there is little to choose between the rival traditional stories, the Plaintiff fails in the decree he seeks and judgment must be entered for the Defendants.” See Kaiyaoja v. Egunla (1974) 12 SC 55; Enigwe v. Akaigwe (1992) 8 LRCN 486; Adeyeri v. Okobi (1997) 51 LRCN 1529 and Adeniran v. Alao (2001) 92 LRCN 3253 at 3267 and 3268 per Uwaifo, JSC. This onus as laid down in the above dictum is, like in all civil matters, always discharged on the preponderance of evidence adduced by the party and on the balance of probability. Per. IGNATIUS IGWE AGUBE, J.C.A.
DECLARATION OF TITLE TO LAND: WAYS OF ESTABLISHING TITLE TO LAND
The law is also trite that there are five ways of establishing title to land or as in this case the property in dispute. See the land mark case of Idundun v. Okumagba (1976) 1 N.M.L.R. 200 (1976) NSCC (vol.10) 445 at 455 and the often quoted dictum of Fatayi Williams, JSC (as he then was); who enumerated the five ways to include:-
1. By traditional evidence;
2. By production of title documents;
3. By acts of person(s) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it extending over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner (Ekpo v. Ita 11 NLR 68);
4. By Acts of possession and enjoyment of the land;
5. Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. Per. IGNATIUS IGWE AGUBE, J.C.A.
DECLARATION OF TITLE TO LAND: REQUIREMENTS TO PROVING DOCUMENT OF TITLE
Now, Section 15 of the Land Instruments Registration Law provides that:
“No instrument shall be pleaded or given in evidence in any Court affecting land unless the same shall have been registered…”In the recent case of Ayanwale v. Odusami (2011) 18 NWLR 328 at 348 – 349, Adekeye, JSC supporting the lead Judgment of Rhodes-Vivour, JSC; held thus;
“Production of a deed of conveyance or document of title is one of the five ways of acquiring ownership, of title to land. Even then production of a deed of conveyance or any document of title does not automatically entitle a party to a claim in declaration. Before the document of title is admitted as sufficient proof of ownership, the Court must satisfy itself that:
(a) The document is genuine or valid,
(b) It has been duty executed, stamped and registered.
(c) The grantor has authority and capacity to make the grant.
(d) The grantor has in fact what he proposes to grant.
(e) That the grant has the effect claimed by the holder of the instrument.
Romaine v. Romaine (1992) 4 NWLR (pt. 238) pg 650; Kyari v. Alkoli (2001) FWLR (pt. 60) 1487 (2001) 11 NWLR (pt. 724) 412 and Dabo v. Abdullahi (2005) 29 WRN 11 (2005) 7 NWLR (pt.923) pg 81.” Per. IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES:
SOTONYE DENTO-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGEBE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
ALHAJI MOHAMMED ABUBAKAR – Appellant(s)
AND
1. MRS. ELIZABETH MOSES ANOBIH
2. MR. MOSES ANOBIH – Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the leading Judgment): On the 3rd day of August, 1999, the Appellant as Plaintiff in the High Court of Adamawa State, Holden at Yola, in suit Number ADSY/40/99; took out a Writ of Summons initially against the 1st Respondent (then sole Defendant) and by the endorsement or “Memorandum to be subscribed to Writ” and Statement of Claim sought for two declaratory and injunctive Reliefs as contained in pages 2, 3, 4, and 7 of the Records. In an Amended Writ of Summons dated the 12th day of May, 2000; Mr. Moses Anobih was joined as the 2nd Defendant and by the endorsement therein and the Amended Statement of Claim, sought for the following Reliefs against the Defendants jointly and severally as follows:-
“i. A declaration of title to the piece of land (together with all the development thereon) known as No.39, Mohammed Mustapha Way Jimeta-Yola covered by Yola Local Government customary Certificate of Occupancy YLG No.002127 consisting of structures contained in the Soles Agreement between Plaintiff and Mr. Moses Anobih dated 6th January, 1992.
“ii. A declaration that the Plaintiff is the rightful owner of the property known as No.39, Mohammed Mustapha Way Jimeta-Yola and is therefore entitled to a statutory right of occupancy and peaceful possession of the property to the exclusion of all others particularly the defendants and their privies.
“iii. A perpetual injunction restraining the Defendants, their agents, privies, relations and any other person claiming under them or for them from interfering with or, entering into, disturbing or using the property known as No.39, Mohammed Mustapha Way Jimeta-Yola or any port thereof in any manner whatsoever.
“iv. Any other Order the Court may deem fit to make in the circumstances.
“v. Cost of the action”.
It would also be recalled that in a motion dated 11th day of May, 2000, and filed on 15th May, 2000, the Plaintiff/Appellant was granted leave to serve the 2nd Defendant/Respondent with all the processes of Court by substituted means (advertising them in one of the National Newspapers circulating within the jurisdiction of the lower Court); and to deem such advertisement as proper service on the 2nd Defendant. On the 4th day of October, 2000, the 1st Defendant who had been served with both the Original Writ of Summons together with the Amended Statement of Claim filed her Statement of Defence and Counter-Claim dated 3rd October, 2000. Thereafter, by a motion dated 14th day of September, 2004 and filed on the 21st day of September, 2004, the 1st Defendant also sought for amendment of paragraphs 1, 2, 4, 7, 8, 10, 12, 14, 15, 16, 17 and 20 of her Statement of Defence and Counter-Claim and to deem same as duly filed and served. In the Defendant’s Amended Statement of Defence and Counter-Claim she sought for the following Reliefs:
“a. An Order of the Honourable Court directing the Plaintiff to give an account of all rents received by him or his in respect of and concerning house No.39 Mohammed Mustapha Way, Jimeta-Yola from 1996 until possession is given back to the first Defendant
“b. A declaration that the counter claimant is the rightful owner of the entire house known and identifiable as house No.39 Mohammed Mustapha Way, Jimeta-Yola.
“c. A declaration that the counter claimant is entitled to received all rents accruable or received by the Plaintiff in respect of house No.39. Mohammed Mustapha Way, Jimeta-Yola from 1996 until possession is handed over back to her.
“d. An order directing the Plaintiff to pay over to the counter-claimant all rents received by him in respect of house No.39 Mohammed Mustapha Way, Jimeta-Yola
“e. A perpetual injunction restraining the Plaintiff, agents, prives, and any other person claiming through him from interfering with, or entering into, or disturbing the counter-claimant’s ownership, possession and quite enjoyment of her property known as house No.39 Mohammed Mustapha Way, Jimeta-Yola.
“f . The cost of this action.
Also from my perusal of pages 55 to 60 of the Records, the Plaintiff had filed a Motion dated 22nd January, 2001 praying for extension of time within which to file his Defence to the 1st Defendant’s Counter-Claim. That Motion was filed on the 25th of January, 2001. It is also pertinent to further note that the Plaintiff earlier commenced this action in the Upper Area Court 1, Yola in Suit Number UAC1Y/CV/F1/48/96 and judgment was entered in his favour on the 23rd day of June, 1998. Not satisfied with the judgment of that Court, the Defendant brought an Application before the High Court of Adamawa State in Suit Number ADS/98M/98 for an Order of Certiorari to quash the proceedings of the Upper Area Court 1, for want of jurisdiction which application was granted by the Ruling of Honourable Justice T. Oluoti delivered on the 3rd day of August, 1999. See pages 17, 18, 19, and 20 of the Record of Appeal.
In the course of reading through the Records (see page 121 – 123), I came across a Ruling delivered on the 28th day of March, 2000, in respect of Application and Counter-Application for interlocutory injunctions restraining each other from doing one thing or the other on the subject matter of the suit. The learned trial Judge after reading through the motions and the Exhibits annexed thereto by the respective parties and found that:
1. One Moses M. A. Anobih who was the husband to the 1st Defendant ought to be party because all the issues connected with the Applications and indeed with the Suit could not be resolved without joining him;
2. The said Moses Anobih was the purported owner of the property the subject matter in dispute and which property was allegedly sold to the Plaintiff;
3. The facts of the case showed that the Plaintiff had taken possession of the premises in dispute, an issue which the defendant was contesting; and
4. The said Moses Anobih from the facts in the motions and substantive suit was no more resident within Yola or in the premises the subject matter in dispute;
ordered the said Moses Anobih to be joined as 2nd Defendant in order for the suit to be effectively and justly tried and determined.
Following this order of joinder by the Court and the futile efforts to serve Mr. Moses Anobih with the Court processes, an application for substituted service was made and granted on the 15th of June, 2000 and the said Moses was then duly served on the 23d July, 2000. Issues having been joined by the parties except Mr. Moses Anobih who from the Records did not show appearance, the case was heard between the Plaintiff and 1st Defendant. At the hearing, the Plaintiff testified as PW5, called other six witnesses and tendered three documentary Exhibits marked 1, 2 and 3 respectively.
The 1st Defendant on the other testified as DW3, called three other witnesses making a total of four witnesses and also tendered documentary Exhibits marked 4 and 4A, 5, 6 and 7 respectively. At the close of the parties’ cases and adoption of the Written Addresses of Learned Counsel on their behalf, the learned trial Judge adjourned the case for judgment which he delivered on the 17th day of May, 2007, dismissing the claim of the Plaintiff and granting Reliefs 4 and 5 of the Defendants/Counter-Claimant’s claims in their entirety.
Dissatisfied with the Judgment of the lower Court, the Plaintiff/Appellant gave Notice of Appeal with eight Grounds dated 27th July, 2007 but filed on the 30th July, 2007. With the leave of Court granted him on the 8th day of November, 2012, an Amended Notice and Grounds of Appeal dated 2nd day of November, 2012 but filed on the 5th November, 2012, was deemed filed and served. The Further Amended Notice contains a whopping twelve Grounds which for want of space I shall hereunder reproduce without their particulars.
GROUND ONE.
The learned trial Judge erred in low, when having only summarized the case of the parties he held as follows:-
“I have indicated above that the failure of the Plaintiff to get the 2nd defendant to come and give weight to his contention make his claim and case hollow,” and thereby occasioned a miscarriage of justice.
GROUND TWO.
The learned trial Judge misdirected himself in law when he held without evaluating the evidence adduced before him, that
“…since the Plaintiff could not get the 2nd Defendant to come and confirm his claim, it is my view that the Plaintiffs claim must fail,” and thereby occasioned a serious miscarriage of justice.
GROUNDTHREE.
The learned trial Judge erred on the facts when without considering the Plaintiffs case as presented, he held that:
“…by the evidence of DW2 and that of the 1st defendant read along with exhibits 4, 4A and 5, the story of the 1st Defendant is more to be believed than of the Plaintiff.
GROUND FOUR.
The trial Judge misdirected himself in law, when he held as follows;
“I have above indicated that the best evidence in proof of this sole is 2nd Defendant.”
GROUND FIVE.
The judgment of the learned trial Judge is perverse and against the weight of evidence.
GROUND SIX.
The learned trial Judge erred in law, when he relied on inadmissible evidence to find that the ownership of the land in dispute is in the 1st Defendant.
GROUND SEVEN.
The learned trial Judge erred in law when he refused to place reliance on the Sale Agreement and the certificate of Occupancy tendered by the Plaintiff on the grounds that the Plaintiff did not call the 2nd Defendant to testify in proof of the documents.
GROUND EIGHT.
The learned trial Judge erred in law when he relied on Exhibits 5 and 6 (minutes of meeting of Adventist Church and Sale Agreement between Baba Usman and the 1st Defendant) respectively on the sole ground that they are relevant to the suit despite legal objection raised by the Plaintiff’s Counsel as to their admissibility.
GROUND NINE.
The learned trial Judge erred in law, when he granted to the 1st Defendant leave to amend her statement of defence and counter claim at the time when the Plaintiff has closed his case.
GROUND TEN.
The learned trial Judge erred in law when he held as follows:-
“So on the 1st issue formulated by the Court, the Plaintiff has failed to proof his claim and same is accordingly dismissed because even the contention that the Upper Area Court proceedings have helped the Plaintiff is not true. The Upper Area Court proceedings became ineffective by the contents of Exhibit 7. The claim of the Plaintiff is therefore bound to fail and having failed it ought to be dismissed and is accordingly dismissed.”
GROUND ELEVEN.
The learned trial Judge misdirected himself on the facts when he held as follows:-
“I have looked at Exhibit 5 the minutes of the meeting of the Executive Committee of Seventh Day Adventist. It has thrown some light to show that when 1st Defendant reported the activities of 2nd Defendant the 2nd Defendant was not comfortable and he eventually left, so by the evidence of DW2 and that of 1st Defendant read along with Exhibit 4, 4A and 5, the story if the 1st Defendant is more to be believed than that of the Plaintiff.”
GROUND TWELVE.
“The Judgment of the learned trial Judge was a nullity having been delivered 4 months after the adoption of written addresses by Counsels.”
Upon transmission of the Record of Appeal to this Honourable court, Briefs of Arguments were duly exchanged pursuant to our Rules and in the Amended Brief settled by S. S. Obende Esq. for the Appellant which is dated 1st November, 2012 but filed on 5th November, 2012 and deemed duly filed on the 8th November, 2012 by Order of this Honourable Court, four Issues were formulated for determination couched as follows:-
“a. Whether the learned trial Judge was right to have dismissed the Plaintiff’s claim for the 2nd Defendant’s failure to defend the Plaintiffs claim against him?
“b. Did the lower Court undertake the evaluation of the evidence adduced before it?
“c. Are Exhibits 5 and 6 admissible, reliable and capable of establishing the Defendant’s claim to ownership of the land in dispute?
“d. Did the Plaintiff prove his claim to be entitled to judgment?”
As for the 1st Respondent’s Brief of Argument dated 15th August, 2012 and filed on 19th of September, 2012, but deemed filed on the 15th day of October, 2012, J. Olabode Makinde, Esq. for the Respondent who settled the same having given Notice of Preliminary Objection on the competence of Grounds 6, 8, 9, 11 and 12 of the Appellant’s Grounds of Appeal, distilled the following Issues as calling for determination:
1. Whether the learned trial judge was right to have dismissed the Plaintiff’s Claim for the failure of the 2nd Defendant to defend the title he purportedly passed to the Plaintiff? (Distilled from Grounds 1, 4 and 7 of the Grounds of Appeal).
2. Did the lower Court undertake the evaluation of the evidence adduced before it? (Distilled from Ground 2 of the Grounds of Appeal).
3. Whether the Plaintiff proved his claim to be entitled to judgment? (Distilled from Grounds 3, 5 and 10 of the Grounds of Appeal).
The facts of the case as can gleaned from the pleadings of the respective parties are that the Plaintiff/Appellant is said to be a business man residing in Yola within jurisdiction and that at all material times relevant to the case claimed to be the owner of all the piece of land situate and lying at No.39 Mohammed Mustapha Way, Nassarawo, Jimeta-Yola. According to him, on the 5th day of January 1992, he was approached by the 2nd Defendant to buy his (2nd Defendant’s) house known as No.39 Mohammed Mustapha Way, Nassarawo,Jimeta-Yola. The Plaintiff/Appellant then went to the said house and inspected it and agreed to buy the house at N310, 000.00 (Three Hundred and Ten Thousand Naira) only. After having satisfied himself that the house belonged to Moses Anobih (the 2nd Defendant) the 1st Defendant’s husband, he paid the purchase price and signed an Agreement letter in that respect. The said Agreement was tendered admitted and marked Exhibit 1.
It was his further case that at the time of purchasing the house, the property consisted of three stores in front, one bedroom and parlour, one single room, two rooms, one kitchen, one toilet and a bathroom as clearly stated in the Sales Agreement. The Plaintiff/Respondent also claimed that he paid the money (purchase price) for the said house to Moses Anobih (2nd Defendant) in the presence of witnesses who signed the Agreement including the 1st Defendant/Appellant, Mohammed Baba Iya and the Ward Head of the Area. After signing the Agreement, he was handed over a copy of same and Exhibit 2, the Yola Local Government Customary Right of Occupancy issued in favour of Moses Anobih in respect of the property. The Appellant further claimed that after concluding the Sales, the 2nd Defendant called all the tenants in the presence of the 1st Defendant/Respondent and informed them about the sale with the instruction that henceforth all the tenants shall deal with the Appellant directly in respect of the house.
It was also the contention of the Appellant in his Statement of Claim that immediately after payment, he took over possession, of the two stores in front of the house and the 2nd Defendant’s room which he renovated and converted into his (Appellant’s) Office, placed his signboard “ALHAJI MOHAMMED ABUBAKAR & SONS LIMITED” and fixed his office equipments including his telephone No.625008 there at. He had also pleaded that Mohammed Mustapha Way was called Nassarawo/Numan Road before it was renamed Main Street and now Mohammed Mustapha Way and that after about six months the 2nd Defendant (Moses Anobih) informed him (Appellant) that he had secured accommodation and would soon leave with his wife (1st Defendant/Respondent) and Defendants’ family which they subsequently did and relocated to their (Defendants’) Village. Later the 1st Defendant came back and refused to hand over the key to the store, room and parlour which they were occupying, to the Appellant.
The 1st Defendant/Respondent, according to the Appellant, also made several appeals to him for extension of time within which to vacate the premises and begged him personally and through his (Appellant’s) friends which the Appellant obliged but that when it became too much he (Appellant) recovered his key through legal process. He alleged that the 1st Defendant now claims that the house belongs to her and continued threatening his peaceful stay and those of other occupants of the house hence his claim for declaration of title and ownership/statutory right of occupancy and peaceful possession of the property to the exclusion of all other persons particularly the Defendants/Respondents and further for a perpetual injunction to restrain the Defendants their agents, privies, relations and other persons claiming through them from interfering with or entering, disturbing or using the said property in dispute.
The case of the 1st Defendant/Respondent on the other hand as can be gathered from her Amended Statement of Defence and Counter-Claim, is that she is also known as Mama Maria and that to the extent that she cohabited with the 2nd Defendant as husband and wife she could be called the 2nd Defendant’s wife although both of them were not formally married. According to her, the 2nd Defendant had no other business except that he oversaw her 1st Defendant/Respondent’s business. They also attended the Seventh Day Adventist Church in Jimeta-Yota and 2nd Defendant was an Elder in the Church.
She was initially married to one Soldier who put her into the premises now in dispute as a tenant but as a result of the disagreement between the Soldier and her family he left her in the premises and never showed up again. Thereafter, she lived alone at No.39 Mohammed Mustapha Way, Jimeta-Yola (the disputed property) as a tenant doing business she being then a beneficiary of defunct National Directorate of Employment (NDE) Programme, teaching tailoring as well as engaged in retail and wholesale of coca cola soft drinks and in fact the major distributor in Jimeta-Yola as at then . The 1st Defendant/Respondent averred that with the income from the above businesses she was able to buy the premises in dispute where she lived as tenant from the owner (one Pius Usman) and rebuilt the place before Mr. Anobih/2nd Defendant came and lived with her in the disputed premises.
In answer to paragraph 4 of the Appellant’s Amended Statement of Claim, the 1st Respondent Claimed that she is the beneficial owner of the piece of land as well as the building there upon known as No.39 Mohammed Mustapha Way, Jimeta-Yola having bought the land together with the mud house thereon sometime in 1980 and thereafter erected the building comprising three shops, room and parlour, three single rooms, one kitchen, one toilet and bathroom. The Agreement for the purchase of the land was pleaded tendered and marked Exhibit 6. The 1st Respondent further claimed that thereafter another piece of vacant land was bought without Agreement and she built additional six rooms, one toilet, one bathroom and one kitchen on the land which existing building and new one now form the compound known as House No.39 Mohammed Mustapha Way, Jimeta-Yola in which she lived and exercised various acts of possession and control including renting the rooms to various tenants and collecting rent for over thirteen years without being challenged by anybody.
On the claim by the Appellant that he was approached by the 2nd Defendant to buy the house, she denied same and claimed that the house does not belong to the 2nd Defendant adding that the Appellant did not care to find out the real owner of the property in dispute but that she shall contend at the hearing that the Appellant connived with the 2nd Defendant and actively encouraged him to defraud her. The particulars of fraud were stated to include the following:
1. The Appellant kept the purported sales transaction between himself and 2nd Defendant secret for four years and
2. Appellant deliberately waited until the 2nd Defendant absconded before revealing the alleged sale transaction to her (the 1st Respondent).
On the contention by the Appellant that she witnessed the transaction and payment of money to the 2nd Defendant, she denied ever witnessing the payment of money from Appellant to 2nd Defendant neither was she a signatory to the Agreement nor was she present when the Appellant and 2nd Defendant purportedly negotiated and entered into the Agreement for the sale of the disputed house. According to her, to the best of her knowledge, the property was not covered by any Certificate of Occupancy for as far back as 1991, the 2nd Defendant engaged in a lot of fraudulent acts against her (1st Defendant/Respondent) who was an illiterate.
For instance, she added, in 1991, while the 1st Respondent was away, the 2nd Defendant sold about 240 crates of soft drinks belonging to her; received a total of N200,000.00 from the 1st Respondent on the pretext of going to build a Filling station for the 1st Defendant/Respondent on her land close to the Federal Government Girls College, Numan Road, Jimeta-Yola which fraud was discovered after the 2nd Defendant had absconded.
Thirdly, the 1st Defendant/Respondent’s house opposite the Vehicle Inspector’s Office at Nassarawo Ward; was used by the 2nd Defendant to secure a loan from a bank without her (1st Respondent’s) knowledge the 2nd Defendant having taken advantage of the title documents to the land which were in his possession. Fourthly, the 2nd Defendant secretly sold her (1st Defendant/Respondent’s) Toyota Crown Car under the pretext that the car was impounded by the defunct African Continental Bank, Yola.
Still on the Customary Right of Occupancy, the 1st Respondent also alleged that the said Certificate No.002127 does not relate to house Number 39 Mohammed Mustapha Way, Jimeta-Yola and that the 2nd Defendant and Appellant connived to rip her off her said house having taken advantage of her illiteracy. She further alleged that the Appellant knew the where about of the 2nd Defendant and they are still acting in concert as she has never set eyes on the 2nd Defendant since he absconded and it would have been impossible for her to the accompany of the 2nd Respondent to plead with the Appellant over the property.
On the description of the disputed plot as Nassarawo/Numan Road, the 1st Respondent also stated that while Mohammed Mustapha Way is in Nassarawo Ward in Jimeta, it is quite distinct from Numan Road, as there was never a time Mohammed Mustapha Road was ever described as Nassarawo/Numan Road. Still on the allegation that she was aware of the transaction, she pleaded that when she started hearing rumours about the sale of the house, she reported the matter to the Seventh Day Adventist Church Board but the 2nd Defendant denied the allegations before the Church Board meeting. She relied on the Minutes of the Meeting held on the 6th October, 1995 which she tendered as Exhibit 5. As regards the allegation that she sought for time from the Plaintiff and his friends to vacate the premises, the 1st Respondent denied same and stated that the Plaintiff/Appellant knew fully the inappropriateness of the transaction with 2nd Defendant, avoided her for about four years before letting her know of the transaction.
In response to paragraph 19 of the Plaintiff/Appellant’s Amended Statement of Claim as to her claim to the property, she admitted that fact to the extent that she had always claimed the ownership of the house which she acquired by her own sweat even before the 2nd Defendant came to live with her but she denied ever threatening Appellant or the occupants of the house. Finally, she averred that she shall contend at the trial that she had not at any time in her capacity as the owner of that house entered into any transaction with the Plaintiff/Appellant nor had she authorised the 2nd Defendant to dispose of No.39 Mohammed Mustapha Way, Jimeta-Yola and that as an illiterate she sought the protection of the Court under the relevant illiterate protection Laws.
As for the Reliefs sought for by the Appellant she denied same stating that the Plaintiff/Appellant could not have maintained the action against her as the owner of the property in dispute and he was not entitled to any of the Reliefs Sought as his Claims were all misconceived, lacking in merit and should be dismissed. She therefore Counter-Claimed as in pages 70 and 71 of the Record of Proceedings.
ARGUMENT AND DETERMINATION OF PRELIMINARY OBJECTION: Whereas in the course of adopting their written Briefs, the learned Counsel for the Appellant had intimated the Court that he did not file a Reply Brief in response to the Preliminary Objection of the learned Counsel for the 1st Respondent, because the amendment he was granted leave to make on the Notice and Grounds of Appeal and the Appellant’s Brief on that 8th day of November, 2012, had taken care of the Preliminary Objection; the learned Counsel to the 1st Respondent maintained and adopted the Arguments on the objection as incorporated in the 1st Respondent’s Brief at pages 6 – 13 except on Page 8 paragraphs 1.1 to 1.3 and the first paragraph of page 9 thereof, which he sought the leave of the Court to abandon. These paragraphs of the Argument of the 1st Respondent’s Preliminary Objection were and are accordingly struck out living the rest of the arguments.
Ordinarily, having not proffered any Reply to the Preliminary Objection, the objection ought to have been upheld without much ado and the offending Grounds of Appeal as well as the Issues formulated there from and the arguments on those issues struck out. Following the contention of the learned Counsel for the Appellant that the leave granted the Appellant to amend or file the Amended Notice and Grounds of Appeal had cured the defects inherent in the Grounds, Issues and arguments canvassed by the Appellant; I shall proceed to consider the arguments on the preliminary Objection on their merits.
The gravamen of the 1st Respondent’s Objection is that Grounds 6, 8, 9, 11 and 12 of the Appellant’s Grounds (now Amended Grounds) are grossly incompetent or being abandoned by the Appellant. The Grounds of the Preliminary Objection are stated at pages 7 and 8 of the Appellant’s Brief. Beginning from Ground 5 which is alleged not to be a complaint against the decision or judgment of the lower court, the argument on that ground is articulated in Paragraphs 1.1, 1.2 and 1.3 of page 8 of the Appellant’s Brief and page 9 (first paragraph thereof). Those arguments are the ones abandoned by the learned Counsel for the 1st Respondent and are accordingly struck out.
On Issue Number 4 which the learned Counsel for the Respondent contends does not arise from Grounds 8 and 9, the said Ground 8 of the Amended Grounds complain that the trial Judge committed an error of law when he relied on Exhibits 5 and 6 (Minutes of the Seventh Day Adventist Church and Sale Agreement between Baba Usman and the 1st Defendant) on the sole ground that they are relevant to the suit despite legal objection by the Plaintiff’s Counsel to their admissibility. As for Ground 9, it complains that the learned trial Judge erred in law when he granted the 1st Defendant leave to amend her Statement of Defence and Counter-Claim at the time when the Plaintiff had closed his case.
Issue Number 4 however, as formulated in the Appellant’s Amended Brief of Argument which is whether the Plaintiff proved his claim so as to be entitled to judgment, is said to relate to Grounds 5, 7 and 10 of the Amended Grounds of Appeal. Ground 5 of the Amended Grounds complains of the learned trial Judge’s judgment being perverse and against the weight of evidence; Ground 7 on the error of law committed by the Court below when the learned trial Judge refused to place reliance on the Sale Agreement and Certificate of Occupancy tendered by the plaintiff because he (Plaintiff) did not call the 2nd Defendant to testify in proof of the documents; while Ground 10 also complains of the error of law committed by the learned trial Judge in holding that on the first issue formulated, that the plaintiff failed to prove his claim and same was accordingly dismissed as the proceedings of the Upper Area Court (Exhibit 7) did not help the said Plaintiff’s case.
From the foregoing, the Objection to Issue Number 4 is not tenable as same is rightly formulated from Grounds 5, 7 and 10 which in the main complain of the perverse nature of the Judgment of the Court below; the learned trial Judge’s refusal to place reliance on the documentary evidence tendered by the Appellant to prove his title to the property in dispute and the dismissal of the plaintiff/Appellant’s case on the ground that the Appellant failed to prove his case. I shall therefore discountenance this Ground of the objection.
As for the objection on Issue Number 3 of the Amended Brief of the Appellant which learned Counsel complains does not arise from Ground 11 of Amended Grounds; that Issue poses the question whether Exhibits 5 and 5 are admissible, reliable and capable of establishing the Defendant’s claim to ownership of the land in dispute. The issue is said to relate to Grounds 5, 8 and 11 of the Amended Grounds of Appeal. For the avoidance of doubt, Ground 5 complains that the learned trial Judge erred in law when he relied on inadmissible evidence to find that the ownership of the land in dispute is in the 1st Defendant. Ground 8 is repetitive of Ground 6 and complains that the learned trial Judge erred in law in relying on Exhibits 5 and 6 as the sole ground that they are relevant to the suit despite the legal objection raised by the Plaintiffs Counsel as to their admissibility. Finally Ground 11 complains of misdirection of the learned trial Judge on the facts when he held that Exhibit 5 had thrown light on the fact that the 1st Defendant reported the activities of the 2nd Defendant to the Executive Committee of the Seventh Day Adventist Church and that the 2nd Defendant became uncomfortable and eventually left such that by the evidence of the DW2 and that of the 1st Defendant read together with Exhibits 4, 4A and 5, the story of the 1st Defendant was more plausible and to be believed than that of the Plaintiff.
All these Grounds go to the issue of admissibility of Exhibits 5 ad 6 and other documentary exhibits tendered by the 1st Defendant which the Court below believed and relied upon in awarding title to the disputed property in favour of the 1st Defendant/Respondent. Thus issue Number 3 arises from those Grounds and the Amendments to the Notice and Grounds of Appeal and the Issues formulated in the Amended Appellant’s Brief have cured whatever inherent defects in the Grounds, Issues and arguments that may have been canvassed or not canvassed in the Original Grounds and Brief of Argument. Accordingly, I shall also discountenance Ground IV of the Respondent’s Preliminary Objection.
The learned Counsel for the Respondent has also argued that no Issue was formulated from Ground 12 of the Amended Grounds of Appeal. That Ground complains that the Judgment of the learned trial Judge was a nullity having been delivered 4 months after adoption of Written Addresses by counsel. I have taken a cursory look at all the Issues formulated and juxtaposed them with the Grounds of Appeal from which they arose and it is clear that Issue Number One (1) is tied to Grounds 1, 3, and 4 of the Amended Grounds of Appeal; Issue Number 2 (Two) to Ground 2; Issue Number 3 (Three) to Grounds 6, 8 and 11; Issue Number 4 married to Ground 5, 7 and 10. There is no doubt that no issue was formulated from Ground 12 which is deemed abandoned on the authorities of Adelekan v. Ecu-Line NV. (2006) 5 SC (pt. 11) 32 per Onnoghen, JSC; Ukiri v. Geco-Prakla Nig. Ltd. (2010) 6 – 7 SC 192 at 205 and Patience Omagbemi v. Guinness Nig. Ltd. (1995) 2 NWLR (pt. 377) 258; per Uwais, JSC; (as he then was), ably cited by the learned Counsel to the Respondent. The said Ground 12 is accordingly struck out since no issue was formulated there from and has been deemed abandoned.
The learned Counsel has also argued that Ground 9 of the Appellant’s Amended Grounds of Appeal is a complaint against interlocutory decision of the lower Court following the grant of the motion for extension of time whereby the 1st Respondent was granted leave to amend her Statement of Defence and Counter-Claim and that the Appellant never sought leave to Appeal against that decision. It is indubitable from the Records as has been rightly submitted that the learned trial Judge granted the 1st Respondent leave to amend her Statement of Defence and Counter-Claim on the 17th of March, 2005 but the Original Grounds of Appeal were filed on the 27th July, 2007, about two years after the Ruling of the learned trial Judge.
Sections 241(1) and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) provide for circumstances under which an Appeal shall lie as of right and with leave from the decision of the High Court to this Court. Again see Sections 14(1) and (2) and 24(2)of the Court of Appeal Act, 2004. Section 24(2) thereof specifically provides that “the periods for giving Notice of Appeal or Notice of Application for leave to appeal are in on appeal in a civil cause or matter, fourteen days where the Appeal is against interlocutory decision and three months where the Appeal is against a final decision.” In this case, the Appellant was expected to appeal within fourteen days against the interlocutory Ruling of the learned trial Judge but he failed so to do. He also did not seek for extension of time either in the lower Court on in this Court to so appeal at the expiration of the statutory period within which to appeal.
The cases of Onwe v. Ogbunya (2001) FWLR (pt. 37) 1033; Ogunleye v. Military Administrator of Ondo State (1996) 9 NWLR (pt. 471) 176 and Orunola v. Adeoye (1995) (pt. 401) 338; cited by the learned Counsel for the 1st Defendant/Respondent are very instructive and are to the effect that the said Ground 9 is incompetent assuming any issue was formulated there from, which is not the case. However, it would appear that the learned Counsel to the Appellant alluded to this Ground at page 15 (particularly paragraph 6.2 to page 16 paragraph 1) of the Appellant’s Brief. This argument ought to and it is hereby expunged as no issue was formulated from Ground 9 of the Amended Ground of Appeal. Accordingly this Ground of Objection and the one relating to Ground 12 of the Amended Ground of Appeal shall succeed. On the whole the Preliminary Objection shall succeed only in part.
ARGUMENT ON ISSUE NUMBER 1 OF THE APPELLANT: Arguing this Issue, the learned Counsel for the Appellant reviewed the history of the case right from when the suit was instituted by Appellant culminating in the motions for interlocutory injunction and restraining orders by the learned trial Judge filed by the competing parties which eventually led to the Ruling of the learned trial Judge on the 28th day of March, 2000 and the Order made at pages 120 and 121 of the Records; pursuant to Order 11 Rule 2 of the Rules of Court by suo motu joining Moses Anobih as 2nd Defendant. The learned Counsel for the Appellant also explained the essence of the joinder order made by the learned trial Judge which was to enable the said Moses to answer to the questions intended by the Counter-Claimant in her intended Counter-Claim and recalled the efforts of the Appellant to serve the 2nd Defendant which led to the motion for substituted service granted by the Court below and eventually service of the 2nd Defendant on the 21st of September, 1999 in the Newspaper called “Weekly Scope” dated 23rd – 25th July 2000 at page 10 thereof.
The learned Counsel for the Appellant noted that it was after the Court had satisfied himself that all parties in the suit had been served that he proceeded to hear the case with the parties eliciting evidence in proof of their respective cases. It was therefore his submission from the foregoing, that the effect of joinder of the 2nd Defendant is that the Defendant had been automatically taken away from position of a witness to be a Defendant against whom the Plaintiff sought reliefs having highlighted the role of the 2nd Defendant in the transaction leading to the case in paragraphs 3, 5, 7, 12, 13, 16 and 19 of the Amended statement of claim of the Plaintiff.
He maintained that the 2nd Defendant even though refused to file a response to or denial of the allegations made against him by the Statement of Claim, he accordingly was deemed to have admitted the facts contained therein. Mohammed v. Abdulkadir (2005) 4 NWLR (pt. 1076) 111 at 156 and Esiegbe v. Agholor (1990) 7 NWLR (pt. 161) 234 at 246; were cited to submit that in this case the burden of proof on the Plaintiff against the 2nd Defendant is minimal and has been discharged on the unchallenged evidence of the Plaintiff and his witnesses. Consolidated Resources Ltd. v. Abofar Ventures Nig. Ltd. (2007) 6 NWLR (pt. 1030) 221 at 236 referred.
Again it was the contention of the learned Counsel for the Appellant that the defence filed by the 1st Defendant/Respondent and her evidence and those of her Witnesses did not meet the case of the Plaintiff hence the learned trial Judge adopted a perspective as to how the burden of proof was to be discharged at page 215 of the Records thus posing the question herein as to whether the learned trial Judge rightly adjudged that the Plaintiff’s claim failed because the 2nd Defendant did not file a defence and did not testify. Placing reliance on Lawal-Osula v. Lawal-Osula & Ors. (1993) 2 NWLR (pt. 274) 158 at 179; per Adio, JCA (as he then was); he submitted that the Plaintiff was not obligated to call a particular Witness, if he could prove his case through other Witnesses as the learned trial Judge did not make the Order for the joinder of the 2nd Defendant to enable him (2nd Defendant) to testify in support of the Plaintiff’s case. He took the view that the learned trial Judge in his own opinion felt that the joinder of the 2nd Defendant would enable him testify on the 1st Defendant’s likely Counter-Claim and that if this be the reason for the 2nd Defendant’s joinder, then it was expected that only the 1st Defendant’s Counter-Claim should have been affected by the Order of the Court and not the Plaintiffs Claim.
Relying again on Udo v. Eshiet (1994) 8 NWLR (pt. 363) 483 at 500 per Tobi, JCA (as he then was), he maintained that the 2nd Defendant as a party, could not have been expected to testify for Plaintiff, if the Plaintiff could lead evidence through other witnesses, which the learned trial Judge unfortunately did not evaluate or consider the quality of evidence adduced by the Plaintiff and his witnesses to enable the Court below arrive at the only conclusion that the person to unravel the circumstances of the transaction was only the 2nd Defendant. We were then urged to find and hold that the Plaintiff was not bound to call the 2nd Defendant in order to prove his case and that the Plaintiff through his witnesses and quality of documents tendered proved his claim to the ownership of the land in dispute.
ARGUMENT OF THE 1ST RESPONDENT’S COUNSEL ON ISSUE NUMBER 1 (ONE) Arguing per contra on the 1st Respondent’s first Issue which is akin to the Appellant’s Issue Number One(1), the learned Counsel for the 1″ Respondent also revisited the facts leading to the institution of the suit in the High Court referring particularly to paragraphs 5 and 7 of the Plaintiffs Amended Statement of Claim at page 41 of the Record; on how the Appellant acquired the property in dispute, who sold same to the Appellant as owner; who in turn had bought same from one Pius Usman and his (Pius’) Sister.
As for the case of the 1st Respondent, he also alluded to pages 54 of the Records, 184 lines 20 – 25 thereof, where she also claimed that she bought the property in question from Pius Usman through a Sales Agreement between herself (known as Mama Maria) and Pius Usman. The Agreement dated 10/8/80 was admitted as Exhibit 5 (paragraph 4 of the 1st Defendant’s Statement of Claim and Counter-Claim at page 54 refer). Later she also bought another vacant land from Mama Aisha (Pius Usman’s Sister) this time without Agreement and added same to the land she bought in 1980 to make a single land.
From the above averments, the learned Counsel posited that it can be safely inferred that the Plaintiff/Appellant and the 1st Defendant/Respondent traced their roots of title to the same person i.e. Pius Usman and his Sister. He argued that the 1st Defendant/Respondent seriously challenged the title of the 2nd Defendant and by extension the power to transfer title which he did not have which underscored the order of his joinder of the 2nd Defendant as party to suit. Further references were made to paragraphs 4, 5, 6 and 10 of 1st Defendant’s Amended Statement of Defence at pages 54 to 59 and her evidence at page 184 line 14 to 25 of the Records; paragraph 10 of the Statement of Defence where the 1st Defendant/Respondent contended that the property was not covered with any Certificate of Occupancy and her going further to Counter-Claim submitting on the authority of Ugoji v. Onukogu (2005) ALL FWLR (pt. 271) 66; that given the facts of the case the joinder of the 2nd Defendant was for him to defend or confirm the title of the 2nd Defendant passed unto the Plaintiff/Appellant and which the Appellant was relying on in seeking a declaration.
Learned Counsel insisted that the Court below realizing that the 2nd Defendant did not appear to defend the suit the Plaintiff strove unsuccessfully to convince the Court that the property in dispute belongs to 2nd Defendant and not 1st Defendant. He recalled that the Plaintiff also tendered and retied on Customary Certificate of Occupancy (Exhibit 2) as the 2nd Defendant’s title document given him by the 2nd Defendant in order to establish that the property in dispute belongs to the 2nd Defendant, submitting that Exhibit 2 in the circumstances of this case where the title of the 2nd Defendant is seriously dispute, is not conclusive proof of ownership by the 2nd Defendant. Per Oguntade, JSC quoting with approval the dictum of Iguh, JSC in Uche v. Eke (1998) 9 NWLR (pt. 564) 24 at 35 was further relied upon to buttress the above submission and to justify the decision by the Court below that the failure of the 2nd Defendant to defend or confirm that title passed to the Plaintiff/Appellant left a hollow gap in the case of the Appellant and that the Appellant failed woefully to prove title  against the 1st Defendant/Respondent having testified as PW5 and called PW1 – PW4 and PW7 none of whom was able to prove without doubt or on the balance of probability how the Appellant acquired title to the land in dispute.
The learned Counsel for the 1st Respondent then referred us to the testimonies of the aforesaid witnesses for the Appellant and their answers to the cross examination of Counsel to the 1st Respondent at pages 131 lines 15 to 16; 134 fines 16 – 17; pages 142 lines 24 to 25 and 143 lines 1 to 3 of the Records and contended that the PW2 did not know when who and how the house in dispute was built whereas the evidence of the PW3 is hearsay and that as for the PW5 who testified that there is an alleged Agreement between Pius Usman and the 2nd Defendant, that Agreement was not tendered. Thus the oral testimonies of witnesses other than the 2nd Defendant run through the entire gamut of Appellant’s evidence throughout the trial which underscored the importance and effect of the failure of the 2nd Defendant to show up to defend the title he claimed to have passed to the Appellant.
Thus, the learned Counsel for the 1st Defendant posited that from the foregoing, whether as a witness or as party, the failure of the 2nd Defendant to appear is fatal to the case of the Plaintiff/Appellant. Citing Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt. 7) 392; he maintained that the Plaintiff/Appellant who traced his title to an overlord and sought a declaration of title, cannot be allowed to ignore the proof of his overlord’s title. On the principles ingrained and the legal expectation of a party seeking declaration of title, the learned Counsel sought support in the cases of Mohammed v. Abdulakadir (2005) 4 NWLR (pt. 1076) 111 at 156. Esiegbe v. Agholor (1990) 7 NWLR (pt. 161) 234 at 246; Lawal Osula v. Lawal Osula (1993) 2 NWLR (pt. 274) 158 at 179 and Udo v. Eshiet (1994) 8 NWLR (pt. 363) 500 per Tobi, JSC; to submit that the party seeking declaration must make out a strong case for it, as declaratory reliefs are not granted on mere admissions of parties but at the discretion of the Court taking into consideration the demands of equity. Eke v. Okwaranyai (2001) 4 SCNJ 300 at 305 ratio 7, 8 and 9 per Uwaifo, JSC, was cited to buttress the above submission.
Taking the above circumstances into consideration, the learned Counsel for the 1st Respondent countered that the submission of learned Counsel at page 6 para 4.11 of the Appellant’s Brief that the Court below adjudged the Plaintiff’s case to have failed because he could not call the 2nd defendant to testify, is erroneous as rather the reason for adjudging the Plaintiff’s case as having failed was that he (Plaintiff/Appellant) could not prove his title to the property in dispute. The 1st Defendant/Respondent on the other hand, learned Counsel argued, proved better title as captured in the judgment of the learned trial Judge. We were therefore urged to resolve the Issue against the Appellant but in favour of the Respondent.
ISSUE NUMBERS 2 OF BOTH THE APPELLANT AND 1ST RESPONDENT: WHETHER THE LEARNED TRIAL JUDGE/LOWER COURT DID UNDERTAKE THE EVALUATION OF THE EVIDENCE?
On this issue which borders on the evaluation of the evidence adduced before the learned trial Judge/the lower Court, the learned Counsel for the Appellant recalled that the Appellant in proof if his case called seven witnesses in addition to his testimony and tendered Exhibits 1 – 3 whereas the 1st Defendant called four witness in proof of her case and tendered Exhibits 4 – 7 respectively. References were made to pages 157, 161, 162, 175 – 198 of the Records and the fact of the visit to the locus inquo as reflected in pages 175 – 202 of the Records and pages 209 – 217 thereof to submit that a careful appraisal of the judgment of the lower Court delivered on the 17th of May, 2007 will show that the trial Court totally abandoned his duty of evaluation of the oral and documentary evidence tendered before it neither did he attempt a summary of the evidence or testimonies of the witnesses at all but that the only attempt at summarising the evidence of the parties are as contained in pages 211 and 212 of the Records and that the Court below never alluded to the evidence of the Plaintiff and witnesses nor made any findings except for the terse remark that the PW1 – PW4 “testified to the effect that the 2nd Defendant was the owner of the property”.
The learned Counsel for the Appellant also drew our attention to pages 129 – 154 of the Records and submitted that the trial Court did not evaluate the evidence of the Plaintiff/Appellant and his witness in order to determine whether they established the root of title of the Appellant before the Court drew the conclusion at page 215 of the Records that the claim of the Appellant must fail. As regards the evidence of DW3 (1st Respondent) at page 186 -190 that she did not sign Exhibit 1, he submitted that apart from this ipse dixit of the Respondent no other evidence was led to challenge the authenticity of Exhibit l and that as to the question whether the said Exhibit T was executed by the 1st Defendant/Respondent, the PW1, PW4 and PW5 also led unchallenged evidence as to the execution of the said document by the 1st Defendant/Respondent. He then referred us to the provision of section 101(1) of the Evidence Act on prove of the existence and making of Exhibit 1.
Still on the holding of the Court that Appellant failed to prove his case because the 2nd Defendant was not called, the learned Counsel for the Appellant argued that even though the Court abandoned its duty of evaluating the evidence of the Appellant and witnesses, the Appellant had no burden or duty to call the opposite party as a witness or any particular witness in order to prove a particular fact if he could prove same by other witnesses.
It was submitted that the learned trial Judge would have been fortified in his reasoning had he given any reason for not finding the evidence of the other witnesses of the Appellant worthy of consideration or credit worthy even though he conceded that the Judge had the prerogative of ascribing his opinion to the credibility of witnesses. Citing the case of Ndem v. Nkpinang (2001) 2 NWLR (pt.698) 451 and Chukwu & Ors v. Nneji & Ors. (1990) 5 NWLR (pt. 155) 353 at 375; on the difference between evaluation of evidence and summary of evidence, he submitted that the Court below knew that the burden was on it to evaluate the evidence adduced on both sides by adverting its mind to Mogaji v. Odofin (1978) 3 SC 91; per Fatayi-Williams; which is the locus classicus on evaluation of evidence but added that what the learned trial Judge did was not a semblance of evaluation as demonstrated in pages 211 to 215.
Still on this question of evaluation he contended that apart from not giving any consideration to the Plaintiff/Appellant’s case, the learned trial Judge gave more consideration to the case of the 1st Defendant/Respondent by considering her acts of possession and claim of ownership, Exhibit 5, the Evidence of the DW2, Exhibit 4, and 4A before arriving at the conclusion that 1st Respondent had title to the land. The Court below, according to learned Counsel for the Appellant considered the evidence of the 2nd Defendant sacrosanct as the only means by which the Appellant could establish the genuineness of the Sale agreement and Certificate of Occupancy whereas these were not the issues that arose for determination in the suit. Plateau Publishing Co. v. Adophy (1936) 4 NWLR (pt.134) 205; was cited to pose the question as to whether the authenticity of Exhibit 1 and Certificate of Occupancy are in issue, he answered the question by referring to the pleadings of the Appellant in paragraphs 7 and 11 of his Amended Statement of Claim, paragraph 6 of the 1st Respondent’s Amended Statement of Defence and her bare denial of the Appellant’s averment in paragraph 7 of his Amended Statement of Defence.
The learned counsel for the Appellant then alluded to the testimonies of the PW1 under Cross-examination at page 133, the remark by the court at page 131 below on the evidence of the PW1, the evidence of the PW3 at page 138, that of the PW5 at pages 141 – 147 all of the Record of Proceedings and submitted that the evidence of these witnesses were directly in proof the existence of the Sale Agreement and that Exhibit 1 was made, executed and witnessed by the PW1, PW3 and PW5 but that the trial Judge did not say whether these witnesses were not reliable nor did the Court make finding as to the probative value of the evidence; his main concern being the presence of the 2nd Defendant.
As for the position of the 1st Respondent on the authenticity of the Agreement, learned Counsel referred us to the evidence of the DW1 called by the said Respondent which evidence of the witness supported the case of the Appellant. He then urged us on the authority of Onisaodu v. Elewaju (2006) 13 NWLR (pt. 998) 517 at 529 – 530 to believe the evidence of DW1 moreso as according to the learned Counsel for the Appellant, the 1st Defendant/Respondent did not plead nor deny the existence of Exhibit 1or the making thereof. The 1st Defendant/Respondent, learned Counsel further noted, did not also deny the genuineness of the Exhibit I and its authenticity except her denial that she did not execute the said Exhibit as a witness to the transaction in paragraph 8(a) of her Amended Statement of Defence.
Finally, references were made to the evidence of the PW1 at pages 129 and 130 of the Records as to his having witnessed the transaction between the Appellant and 2nd defendant with himself and 1st Defendant/Respondent as witnesses along with other witnesses who signed the Agreement after payment of the purchase price for the property in dispute. Learned Counsel concluded on this issue that even though the DW3/1st Defendant/Respondent denied attesting to Exhibit 1, by Section 106 of the Evidence Act, the evidence of PW1, PW4 and PW5 were sufficient to prove the execution of the said Exhibit 1. We were therefore urged to resolve the Issue in favour of the Appellant.
ARGUMENT OF LEARNED COUNSEL TO THE 1ST RESPONDENT ON ISSUE NUMBER 2 (TWO)
Reacting to the above submissions of the learned Counsel for the Appellant, Mr. J. Olabode Makinde for the Respondent argued the contrary that it is not correct as contended by the Appellant’s Counsel that the court did not evaluate the evidence. He noted that the Plaintiff/Appellant’s case in the lower Court was that the property in dispute belongs to the 2nd Defendant and the evidence of the PW1, PW3 – PW5 is principally that the Appellant bought the property from the 2nd Defendant. Learned Counsel to the 1st Respondent referred to the evidence of the PW2 and under Cross-examination at page 131 lines 7 to 8 of the Records on how the Plaintiff was introduced as the landlord of the house but did not know how the Plaintiff became the new landlord to the disputed property.
Learned Counsel also alluded to the evidence of the PW6 who merely tendered Exhibit 3 the Record of Proceeding of the Upper Area court which the court below found did not help the case of the Appellant as the said proceedings became ineffective by the contents of Exhibit 7. He added that the Appellant did not appeal against this finding. As for the evidence of PW7, the learned Counsel also submitted that it is principally about Exhibit 2 (the Customary Certificate of Occupancy) which the 2nd Defendant gave to the Appellant tending to show that the 2nd Defendant is the owner of the disputed property which is in line with the summation of the trial Judge at page 207 lines 21 – 24 of the Records. According to learned counsel to the 1st Respondent, the above summation of the evidence even though it omitted to mention PW2, PW6 and PW7 as argued by the Appellant, such omission has not occasioned a miscarriage of justice to the Appellant and the Appellant has also not shown that the approach of the trial Judge in the evaluation of evidence even though inadequate, is perverse.
Turning to the submission of the learned Counsel to the Appellant in paragraph 5.5 to 5.6 of the Appellant’s Brief, the learned counsel to the 1st Respondent drew our attention to the pleadings and evidence adduced by the parties and contended that what was crucial to the resolution of the case was as between the 1st Defendant/Respondent and the 2nd Defendant, who had title to the disputed property and not the authenticity of Exhibit 1 (the sales Agreement) or the validity thereof but whether the 2nd Defendant who executed Exhibit 1 in favour of the Appellant, has/had the requisite vires to sell the property in dispute.
The learned counsel for the 1st Respondent also further argued that Exhibits 6, 4, and 5 have seriously and effectively rendered the Customary Certificate of Occupancy tendered by the 2nd Defendant’s title document quite worthless. Still on the submission by the learned counsel for the Appellant that the evidence of the Appellant and witnesses were not evaluated but jumped to the conclusion that the plaintiff’s case must fail because the 2nd Defendant failed to confirm his title, the learned counsel for the Respondent referred us to the reasoning of the learned trial Judge at page 208 lines 2 to 11 and the advise and warning of himself on the standard of proof required in such a case before so concluding as he did that the plaintiff/Appellant’s case must fail.
He also recalled the finding of the fact that the evidence of 1st Defendant/Respondent and DW2 show that 1st Respondent was in occupation possession and ownership of the property in dispute before the 2nd Defendant met the Respondent after her soldier husband whom they started staying in the premises had left. In addition the court also held that by the evidence of the 1st Respondent and DW2 read along with Exhibits 4, 4A and 5, the story of the Respondent was more believable than that of the Plaintiff/Appellant and witnesses. On the necessity of the court placing such premium on having the 2nd Defendant in court, he explained that it was to enable the genuineness of the title passed to the Appellant to be ascertained since none of the witnesses called by the plaintiff/Appellant including himself, could explain how the property in question was acquired, the year of sale between Pius Usman and 2nd Defendant and the cost price of the land. Pages 143 lines 1 to 20 of the Records refer.
On the other hand, he insisted that only the 1st Defendant/Respondent produced and tendered evidence (Land/Plot Agreement (Exhibit 6)) between her and Pius Usman who the Appellant admitted was the original owner of the land. Also all the indirect oral evidence of the Appellants witnesses that Pius Usman sold the land to the 2nd Defendant cannot stand in the face of Exhibit 5 and even the evidence of DW1 which the Appellant appears to rely on is not helpful because Appellant had testified that he saw an Agreement in the defunct Yola Local Government of Land Sale transaction between Pius Usman and the 2nd Defendant. Learned Counsel for the Respondent then maintained that if the above assertion by the Appellant is true then oral evidence of the sale is inadmissible moreso when the Appellant failed to put such vital document in evidence. On the whole, we were urged to resolve the issue in favour of the Respondent and dismiss the Appellant’s Appeal.
ISSUE NUMBER 3: “WHETHER EXHIBITS 5 AND 6 ARE ADMISSIBLE, RELIABLE AND CAPABLE OF ESTABLISHING THE DEFENDANTS. On this issue, the learned Counsel for the Appellant addressed us specifically about Exhibit 6 the Agreement for sale of plot, and submitted that the learned trial Judge heard the respective counsel to the parties on the admissibility of same and how the learned counsel for the Appellant argued that Exhibit 6 was inadmissible for being in contravention of Section 15 of the Land Registration Instrument Law, Northern Nigeria whereas the learned counsel for the 1st Defendant/Respondent argued on the contrary that the document was pleaded in paragraph 4(5) of the statement of Defence and Section 15 of the Land Instrument Registration Law does not make the document absolutely inadmissible because the doctrine of registration is one legal requirement but that the document can be admitted in Equity.
The learned Counsel for the Appellant, maintained that the learned trial Judge did not consider the objection but proceeded to admit the document on grounds of relevance and for being pleaded in paragraph 4(b) of the statement of Defence. He referred to the evidence of the DW3 and Exhibit 6 which are to the effect that the document was not tendered as purchase receipt but as Sales Agreement for land which must mandatorily satisfy the requirements of Section 15 of the Land Registration Law for it to be admissible. Citing Lawanson v. Afani Continental Co. Ltd. (2002) 2 NWLR (pt. 752) 585 at 613, he submitted that there is no evidence that Exhibit 6 was registered and that the non registration of the said Exhibit rendered same inadmissible.
The learned Counsel again posited still on this score, that Exhibit 6 formed the basis of the lower Court’s finding in favour of the 1st Defendant/Respondent’s title to the disputed property as can be gleaned from page 216 of the Records and that where the Court relied on inadmissible evidence, this Court on the authority of Shanu v. Afribank PLC. (2002) 5 SCNJ 454 at 475; has powers to expunge such evidence. On the reliance also placed on Exhibits 4, 4A and 5 tendered by the 1st Defendant/Respondent, in adjudging title in favour of the 1st Defendant/Respondent, the learned Counsel for the Appellant asserted that they are receipts of payment of rent from Seventh Day Adventist Church and were tendered through DW2 whose Church was a tenant in the premises (page 257 refers) but that there is nothing in those Exhibits linking the DW3 (1st Defendant/Respondent) to the document, so as to warrant the learned trial Judge’s decision at page 215 of the Records.
According to him, Rent receipts are not documents of title or proof of ownership as documents of title include Deeds of Conveyance, Sale Agreements and Certificate of Occupancy.
As regards Exhibit 5 (the Minutes of the Defendants’ Church, the learned Counsel for the Appellant submitted that the Appellant was not part of the proceedings or minutes, moreso, where by Exhibit 1, the 2nd Defendant/husband to 1st Defendant/Respondent had already divested himself of any interest in the property as at the date of Exhibit 5. According to learned Counsel for the Appellant, the 1st Defendant/Respondent was obliged to call the 2nd Defendant since the said Respondent alleged that the land sold to the Appellant does not belong to the 2nd Defendant. Thus, in his view, the said Exhibit 5 cannot be an admission against interest as to affect the Plaintiff/Appellant’s interest. To constitute admission against interest he further argued, the evidence of the 2nd Defendant must contain the eleme.nts of Section 19 of the Evidence Act, more so the said Exhibit is also not evidence of title to land. For what constitutes evidence of title to land, he placed reliance on the case of Mbani v. Bosi (2000) 11 NWLR (pt. 991) 400 at 412.
Finally the learned Counsel submitted that DW1 testified that ownership of the property resides in the 2nd Defendant, DW2 testified that the land belongs to the 1st Defendant/Respondent while the testimony of the DW2 is not one of the evidence required to prove title to land as he was not a witness to any Sale transaction neither is he an owner of any connected or adjacent land. As for the DW4, it was submitted that his evidence has nothing to do with land in dispute but relates to rental value and not ownership of the land. The learned Counsel then concluded that the trial Court relied only on the evidence of the 1st Defendant (DW3)/1st Respondent and believed same together with Exhibits 4 and 5 in preference to that of the Appellant.
For the above reasons, we were urged to resolve this Issue in favour of the Appellant. It would appear that the learned Counsel to the Respondent did not respond to the arguments of the learned Counsel for the Appellant on the above Issue and the said learned Counsel for the 1st Respondent, ought to be deemed to have conceded to the argument of the learned Counsel for the Appellant. However, the above position notwithstanding we shall consider the validity of the learned Counsel to the Appellant submission on the merits.
ISSUE NUMBER 4 OF THE APPELLANT AND ISSUE NUMBER 3 OF THE 1ST RESPONDENT: ”WHETHER THE PLAINTIFF PROVED HIS CLAIM TO BE ENTITLED TO JUDGMENT?”
ARGUING THIS Issue, the learned Counsel for the Appellant referred to paragraphs 7, 8, 9, 10, 11, 12 and 13 of the Appellant’s Amended Statement of Claim where the Appellant pleaded facts of purchase and possession of the land, ownership of the property and in the course of eliciting evidence called witnesses and tendered documentary Exhibits 1 and 2 (the sale Agreement between him and the 2nd Defendant/husband to the 1st Respondent); and the Customary Right of Occupancy from Yola Local Government Council. He then submitted that by Exhibit 2 there is presumption of ownership in favour of 2nd Defendant who executed Exhibit 1 – the sales Agreement. Apart from the documentary evidence aforementioned, the learned Counsel contended that by Section 91(4) of the Evidence Act, PW1 is the maker of Exhibit t having signed same and his oral evidence is also direct as to where the document was made and the fact that the 1st Defendant/Respondent also signed same as witness to the sale. According to learned Counsel, the evidence of the PW1 was neither challenged nor discredited (pages 129 – 133 of the Records refer); and accordingly his evidence is credible and reliable and sufficient to prove the Plaintiff’s ownership of the land.
Learned Counsel alluded to the evidence of the PW2 at pages 134 – 137 which was to the effect that he was a tenant when the house was sold and he vacated the premises after the Appellant gave possession of the property in dispute after sale. He further referred to his evidence under Cross-examination on the deposition of the 1st Respondent when the Appellant was introduced as the new landlord adding that the evidence of the said PW2 under Cross-examination at page 135 – 135 was not contradicted or impeached.
As for the PW3 and Village Head of the Area where the property in dispute is situated, learned Counsel referred us to page 138 – 139 submitting that it was also not challenged or discredited as regards the 1st Respondent’s knowledge of the transaction between the Appellant and her husband the 2nd Defendant and therefore the evidence of the PW1 – PW3 were consistent as to the purchase of the property by the Plaintiff and to the knowledge of the 1st Respondent who signed Exhibit 1 thus their evidence and Exhibits 1 and 2 are proof of ownership of the property in line with established legal authorities.
The learned counsel argued that the learned trial Judge did not make any findings on the probative value of the evidence of the PW1 as an eye witness to the transaction, did not consider the evidence of PW3 who as Ward Head confirmed the transaction and the appending of the 1st Respondent’s signature to Exhibit 1 and also did not consider the evidence of the PW2 who was a tenant in the disputed property during the sale.
He then submitted that the Plaintiff not only led unchallenged evidence in proof of the transaction but also led evidence to show payment of purchase price and handing over of the property to him (the Appellant). Page 131 of the Records, and the evidence of PW1 were further referred to in submitting further that, that piece of evidence was corroborated by PW2 at page 135 of the Records adding that having led such unchallenged and uncontradicted evidence of purchase and handing over, the burden shifted to 1st Respondent to show the contrary that there was no purchase price, that the 1st Respondent did not sign the Agreement or that the Appellant was not in occupation of the house in dispute but the 1st Respondent did not lead such rebuttal evidence.
Referring again to pages 213 – 215 where the learned trial Judge made his findings it was contended again that he never considered the evidence of the Appellant on these respects nor did he make any reference to the evidence of the PW1 – PW3 Exhibits 1 and 2 but all he did was find that the failure of the 2nd Defendant to testify left the Appellant’s Claim without proof and accordingly the finding is perverse. For the above submission he placed reliance on Adepate v. Babatunde & Ors. (2002) 4 NWLR (pt 756) 99 at 117 – 118. Per Onnoghen, JCA (as he then was) on what is required to prove purchase of land.
In the instant case the learned Counsel was of the view that the Appellant did not call the vendor (2nd Defendant) but he however tendered the Purchase Receipt and Certificate of Occupancy in the name of the Vendor after payment of the purchase price. Accordingly, the Appellant satisfied the requirements as stated in the decision of the Court of Appeal above cited when in addition to those documents he called witnesses to the transaction, adding that the Appellant cannot be held liable for not calling the 2nd Defendant or Defendant’s refusal to attend Court.
Learned Counsel observed that the 1st Defendant only made feeble attempts to deny knowledge of Exhibit 2 in paragraph 8(b) of her Amended Statement of Defence (page 50 refers) as against paragraph 11 of the Appellant’s Amended Statement of Claim at pages 51 – 52 to which the PW7 also testified in line with the Plaintiff’s evidence that Exhibit 2 exists and was issued by Yola Local Government and that from the Record of title of the land he confirmed the root of title to be in Aishatu Demsawo and Mr. Pius Usman and Mr. Moses Anobih respectively. The above testimony of PW7 is said to have been corroborated by the PW4 at page 140 of the Records who testified that Pius Usman his elder brother and Aishatu Demsawo who originally owned the land sold some to the Moses Anobih (2nd Defendant). The said witness also testified to the purchase price of N7,650.00 which evidence was not challenged by the 1st Defendant/Respondent nor was any contrary evidence so led.
Referring us to the evidence of the 1st Respondent as to her root of title which she traced to Baba Usman and subsequently to Pius Usman, it was conceded that both the Appellant and 1st Respondent traced their roots of title to the said Pius Usman who is now late but he argued that whereas unlike the Plaintiff/Appellant who led evidence through a witness to the transaction (PW4) the 1st Respondent did not call any witness in Exhibit 5 neither did her witnesses give any explanation as to their where about. The learned Counsel also noted that under Cross-examination the DW3 at page 192 of the Records, it became clear that the location of the property to which Exhibit 6 relates is not shown and accordingly the said Exhibit and the transaction of which the 1st Respondent testified are not related.
On the strength of the above submissions he asserted that the Plaintiff/Appellant proved his claim to the ownership of the land in dispute on the balance of probability and that the absence of the 2nd Defendant is not sufficient to justify the trial Court’s finding that the Appellant did not prove his title. Accordingly, we were urged to resolve this Issue in favour of the Appellant.
ARGUMENT OF THE LEARNED COUNSEL FOR THE 1ST DEFENDANT/RESPONDENT ON ISSUE NUMBER 4.
Responding to the submissions of the learned Counsel for the Appellant above, the learned Counsel for the 1st Respondent reiterated that the Plaintiff/Appellant failed to prove his claim in the lower Court. He noted that the Plaintiff’s claim before the lower Court was principally for declaration of title to the property in dispute and to prove his claim the Appellant relied on the Sale Agreement dated 6th January, 1992 between him and 2nd Defendant (i.e. Exhibit 1); Exhibit 2 the title document of the 2nd Defendant i.e. the Customary Right of Occupancy dated 22nd October, 1984 and he called PW1 to PW4 and testified as PW5.
On the part of the 1st Respondent learned Counsel noted that she denied the Plaintiff/Appellant’s claim and countered and proved by cogent, credible and unchallenged evidence that:-
1. She is the rightful owner of the property in dispute;
2. She acquired the land with two round huts where she and her former husband were living at the cost of N2,500.00 in 1980. At that time she was not yet married to the 2nd Defendant;
3. She tendered in evidence the Sales Agreement dated 10th August, 1980 (Exhibit 6).
4. She tendered Exhibit 4, 4A and 5 which clearly proved her acts of ownership over the disputed property;
5. DW2 gave detailed and unchallenged evidence showing various acts of ownership the 1st Respondent had exercised even when she was yet to be married to the 2nd Respondent; and
6. She denied ever signing Exhibit 1, and the Plaintiff/Appellant failed to prove that the signature on Exhibit 1 belongs to the 1st Defendant/Respondent, all to which the learned trial Judge found at page 211, lines 5 to 7 of the Records as facts and which facts/finding were not and have not been challenged.
Referring to the last paragraph of Exhibit 5 at page 254 of the Records, where the allegation of sale of the property in dispute is contained; he submitted that the learned trial Judge cannot be faulted when he held as he did at page 212 lines 21 to 23 of the records that the 1st Respondent had shown that she has proved the title in respect of the disputed property better than the Plaintiff/Appellant. The said finding of the Court, the learned Counsel further argued, effectively rebutted the presumption of ownership in favour of the Appellant relying on Exhibit 2 maintaining that having challenged the title of the Appellant, the Appellant cannot rely on presumption of ownership raised by the Local Government Customary Certificate of Occupancy (Exhibit 2).
On the weight and reliance placed by the learned Counsel to the Appellant on the evidence of the pW1 and PW2 in his Brief of Argument, learned Counsel for the Respondent submitted that their evidence are unreliable on the issue of title between 1st Respondent and the Appellant’s supposed predecessor-in-title (2nd Defendant). He alluded to the response to cross-examination of the PW2 at page 131 lines 15 to 16 of the Records submitting that the learned trial Judge was therefore right to have ignored their evidence/testimonies in so far as the title to the property in dispute is concerned. Further reference was also made to the finding of the learned trial Judge at page 211 lines 11 – 13 of the Record to submit that the argument of the Appellant in paragraph 7.6 to 7.8 of his Brief is misconceived in that what was the central and fundamental issue to the resolution of dispute is whether the Plaintiff/Appellant was able to convince the lower Court that the property in dispute as sold to the Appellant was actually the property of the 2nd Defendant as property could not have passed to the Appellant where the property did not belong to the 2nd Defendant.
The learned Counsel for the 1st respondent therefore argued finally that the evidence of the PW1, PW2 and PW3 in so far as they were directed to proving the truth of the Sale of the property by 2nd Defendant is greatly unreliable and largely irrelevant. The trial Judge, according to him, was therefore right to have ignored their Plaintiff/Appellant’s testimonies in so far as it concerns the ownership of the property in dispute by the 2nd Defendant/Respondent.
The arguments canvassed on Issue Number 2 were adopted together with the reasons already highlighted to urge us to resolve all the issues against the Appellant and in favour of the 1st Respondent.
RESOLUTION OF ISSUES
ISSUE NUMBER 1 (ONE): “WHETHER LEARNED TRIAL JUDGE WAS RIGHT TO HAVE DISMISSED THE PLAINTIFF’S CLAIM FOR THE 2ND DEFENDENT’S FAILURE TO DEFEND THE PLAINTIFF’S CLAIM AGAINST HIM?”
In attempting to resolve the first issue of the respective parties; the learned Counsel for the Appellant has submitted rightly in my view that the learned trial Judge joined the 2nd Defendant in accordance with Order 11 Rule 3 of the Gongola State High Court (Civil Procedure) Rules, 1987; to enable him give answers to questions that may come from the Plaintiff and/or the 1st Defendant particularly if the 1st Defendant had counter-claimed as she had done. In other words, for the case to be effectively, effectually and completely tried and so that the orders that may be made by the Court should not be made behind the 2nd Defendant or so that the 2nd Defendant may be bound by such orders; or to enable him defend the title he claimed by Exhibits 1 and 2 to have passed to the Plaintiff, he was either a necessary Party to be joined by the Plaintiff or a necessary witness to be called by the Plaintiff/Appellant. See Akanbi & Ors v. Fabunmi & Anor (1985) 2 SC 431; Oduola & Ors v. Coker (1981) 5 SC 197; Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1 at 52 per Idigbe, JSC and Uku & ors v. Okumagba & Ors. (1974) 3 SC 35.
Thus, as a Defendant who the 2nd Defendant was; having been so joined by Order of Court, and the Plaintiff having duly served him with the necessary Court processes by substituted means with leave of Court to enable him defend the title he passed to the said Plaintiff, the said 2nd Defendant ought to have appeared in Court but he failed, refused and/or neglected to so do, in order to defend the claim of the Plaintiff/Appellant against him. Accordingly, having so failed to appear to join issues with the Appellant; he (2nd Defendant) was deemed to have admitted or conceded to the Plaintiff/Appellant’s case and judgment ought to be entered against the said 2nd Defendant in favour of the Plaintiff/Appellant on minimal proof, particularly after the Plaintiff/Appellant had led his evidence, tendered Exhibits 1 and 2 which purportedly emanated from the 2nd Defendant and further called other witnesses to testify in his (Appellant’s) favour. See Mohammed v. Abdulkadir (2005) 4 NWLR (pt. 1975) 111 at 156; Esiegbe v. Agholor (1990) 7 NWLR (pt. 161) 234 at 246 per Uche Omo, JCA; who held that it is trite law that what is admitted need not be proved.
See also Tyonzughul v. A.G. Benue State (2005) 5 NWLR (pt. 918) 226 at 253 paras. C – E, 254 para A; where Per Obadina JCA delivering the Judgment of this Court, Jos Division, restated this principle of law after citing Section 75 of the Evidence Act, 2004; and the cases of Olugbode v. Sangodeyi (1996) 4 NWLR (pt.444) 500 at 516; Okpareke v. Egbuonu (1941) 7 WACA 53 at 55; Lawal Owosho & Others v. Dada (1984) 7 SC 149 at 163 – 164 and Ebo v. NTA (1995) 4 NWLR (pt.442) 314 at 332 per Achike, JCA (as he then was); that: “It is trite law that what is admitted need no further proof.” For the avoidance of doubt Section 75 of the old Evidence Act (now replicated in Section 123 of the Evidence Act, 2011); provides thus:-
“No fact need be proved in any civil proceedings which the parties to the proceedings or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings;
Provided that the Court may, in its discretion, require facts admitted to be proved otherwise thon by such admission”.
In the instant case, the 2nd Defendant as was rightly submitted by the learned Counsel for the Appellant did not lead any evidence contrary to the pleadings of the Appellant and the evidence elicited in support of the Plaintiff/Appellant’s Claim. Consequently therefore, the evidence of the Appellant against him as a Defendant remained unchallenged and ought to be treated as reliable and acted upon by the learned trial Judge. The case of Consolidated Resources Ltd. v. Abofar Ventures Nig. Ltd. (2007) 6 NWLR (pt 1030) 221 at 235 cited and relied upon by the learned Counsel for the Appellant to buttress his submission in this respect, is very clear on this issue and to the point. See further Apatira v. L.I.L.G.C. (2006) 17 NWLR (pt. 1007) 46 CA; Basil v. Fajegbe (1990) 6 NWLR (pt. 155) 172; Kupoluyi v. Philips (1996) 1 NWLR (pt. 427) 9; Balogun v. Babalola (1974) 1 ALL NLR 66 and Temile & Ors v. Awani (2001) 6 NSCQR 1081 where Kabiri-Whyte, JSC held thus:-
“In respect of facts in the Statement of Claim which are admitted or not disputed by the defence and accordingly no issue was joined between the parties, no proof of such facts is required and no evidence is necessary or admissible in further proof of such admitted facts. See Chief Okpareke of Ndiakere & Ors v. Obidike Egbuonu & Ors (1941) 7 WACA 53; Pioneer Plastic Containers Ltd. v. Commissioner of Customs & Excise (1968) CH 597; Onwuks v. Ediala (1989) 1 NWLR 182 SC and Igwe v. ACB PLC (1999) 6 NWLR (pt. 605) 1.”
I therefore agree with the learned Counsel for the Appellant that the Appellant having pleaded facts in paragraphs 3, 5, 7, 12, 13, 16 and 17 of the Amended statement of claim on the role played by the 2nd Defendant/Respondent and that the Court below having suo motu joined him as a party, the 2nd Defendant was automatically transformed to the position of Defendant whom the Plaintiff sought relief against. However, that did not preclude him from testifying as a witness either for himself or in favour of the Appellant. This is because if he had appeared, he would have either debunked the claims of either the Appellant or the 1st Defendant/Respondent as to the ownership of the property now in dispute. To that extent, the finding and conclusion in the Judgment of the learned trial Judge that the absence of the 2nd Defendant left a yawning gap in the case of the Plaintiff/Appellant cannot be faulted.
However, since the Plaintiff/Appellant claimed jointly and severally against the 1st and 2nd Defendants/Respondents, the Defendants could be liable either jointly or severally. In the case of the 2nd Defendant, since he refused to appear to defend the claim, he was liable as an individual and judgment ought to be entered against him in that capacity. In the same vein, since the 1st Defendant/Respondent counter-claimed, her case was like a Cross-action and as between him and the Appellant; each of them had to prove his or her case on the balance of probabilities. Furthermore, and like all declaratory actions, each was to rely on the relative strength of his or her own case and not on the weakness of the other. This brings me to the contention of the learned Counsel for the Appellant on the authority of Lawal-Osula v. Lawal-Osula & Ors. (1993) 2 NWLR (pt. 274) 158 at 179; per Adio, JCA (as he then was), that the Appellant was not bound to call a particular witness if he can prove his case otherwise which decision along with Udo v. Eshiet (1994) 8 NWLR (pt. 363) 483 at 500; per Tobi; JCA, (as he then was); is the law.
The above position of the law notwithstanding, the learned Counsel for the 1st Respondent has rightly submitted that even though the Appellant would be said to have established his claim against the 2nd Defendant because of the refusal of the 2nd Defendant to appear or join issues with the Appellant, since Appellant’s claim is for declaration of title to the disputed house, the onus was on him to establish the 2nd Defendant/Respondent’s title as against that of the 1st Defendant/Respondent with concrete and reliable evidence, since Courts do not form the habit of granting declaratory reliefs even upon the admission of the rival party.
The learned Counsel for the 1st Respondent was also on very solid ground when he posited and I completely agree with him that the Courts have the discretionary powers to refuse to grant such relief where it would be inequitable to so do. In this wise, the dictum of Uwaifo, JSC in Eke v. Okwaranyia (2001) 4 SCNJ 300 at 321 is quite instructive that:-
“The law is established that to obtain a declaratory relief as to a right, there has to be evidence which supports an argument of such right. The right will not be conferred simply upon the state of pleadings or admission thereon.”
See also Agbaje & Ors v. Agboluaje & Ors (1970) 1 ALL N.L.R. 21 at 26; Chief Odofin v. Isaac Ayoola (1984) 11 SC 72 at 119 to 120; Oni & Ors. v. Arimoro 3 ECSLR 395 at 403; Ibeneweka v. Egbuna (1954) 1 W.L.R. 219 at 225 per Lord Radcliff and Abaye v. Ofili & Anor (1986) 1 S.C. 231 at 320 to 322.
Now, from the arguments of the learned Counsel for the Appellant, it would appear that the decision of the Court below at page 218 of the Records that: “It is therefore my view that the production of the said document without the 2nd Defendant its purported owner called leaves the case of the Plaintiff without proof. The Plaintiff’s has therefore failed to proof (sic) his claim”, is the only basis for dismissing the Plaintiff/Appellant’s case. This cannot be so if a cursory look is taken at the same page (218) of the Records, from lines 5 – 13 where the Court had earlier found and held that:-
“The evidence of the 1st Defendant and that of the DW2 showed that she was in occupation, possession and ownership of the property before 2nd Defendant met her after her soldier husband whom they started staying within the premises had left. I have looked at Exhibit 5 the minutes of the meeting of the Executive Committee of Seventh Day Adventist. It has thrown some light to show that when 1st Defendant reported the activities of 2nd Defendant the 2nd Defendant was not comfortable and he eventually left, so by the evidence of DW2 and that of the 1st Defendant read along with Exhibit 4, 4A and 5, the story of the 1st Defendant is more to be believed than that of the Plaintiff.”
The above finding apart, the learned trial Judge also found and held at page 219 of the Records that: “The 1st Defendant’s evidence has shown that she has proved the title in respect of the disputed property better than the attempt the Plaintiff made.”
Although the learned trial Judge placed much emphasis on the absence of the 2nd Defendant who according to him would have been the best evidence in proof of the Sale of the property to the Appellant and had also held that:
(a) the failure of the Plaintiff to call the 2nd Defendant rendered his case hollow and without legal basis;
(b) that if the 2nd Defendant were called he would have been asked questions as to the genuineness of the Sale Agreement since the Agreement and Customary Right of Occupancy were being queried by the 1st Defendant/Respondent;
It is glaring from the Record of Appeal (pages 218 lines 5 – 13 and 219 lines 21 – 23 thereof) that the learned trial Judge also based his decision on the credibility of the evidence of the 1st Defendant, that of the DW2 and efficacy of the documentary Exhibits tendered by the said 1st Defendant/Respondent which he believed in dismissing the claim of the Plaintiff/Appellant and granting the 1st Defendant/Respondent’s the reliefs in her Counter-Claim.
From the foregoing, the learned Counsel for the Appellant was partly right to have submitted that since the Appellant had testified, called other witnesses to establish the facts contained in Exhibits 1 and 2, if the Court had found reliable evidence particularly in respect of his (Appellant’s) case against the 1st Defendant, judgment could be entered in his (Appellant’s) favour after evaluation of the totality of the evidence and ascription of probative values to the testimonies of the witnesses and documents tendered in support of each other’s case. However, the learned trial Judge found that as between the Appellant and 2nd Defendant on the one hand and 1st Respondent on the other, the 1st Respondent proved that she had better title to the house in dispute and accordingly gave her judgment on her counter-claim.
Therefore, going by the facts of this case and what transpired at the lower Court, although I agree that the Appellant was not bound to call the 2nd Defendant in order to prove his case, as I said earlier, it was left for the learned trial Judge in the Court below who was the master of the facts by virtue of his peculiar advantageous position of being seized with the opportunity of hearing and watching the demeanour of the witnesses to evaluate or assess the totality of the evidence elicited by the parties and draw his inferences. Having discharged his primary function as aforesaid, this Court in its appellate jurisdiction should not ordinarily fault or interfere with the learned trial Judge’s findings unless such findings are perverse or not borne out of the evidence on Record.
The position I have taken herein finds considerable support from the decisions of the Supreme Court in a long line of cases amongst which are Fashanu v. Adekoya (1974) 6 SC 83; Sagay v. Sajere (2000) 6 NWLR (pt. 661) 360; Ebba v. Ogodo (1984) 1 SCNLR 372 and Nnordim v. Ezeani (2001) 5 NWLR (pt. 706) 203.
Indeed Musdapher, JSC; (as he then was) delivering the lead Judgment of the apex Court with whom Belgore, Kutigi, Kalgo, Akintan, Onnoghen and Ogbuagu, JSC; concurred, endorsed this settled position of the law in Agbi v. Ogbeh (2006) 5 SCNJ 314 at 337; when he held thus: “The determination of the credibility of a witness is within the province of the trial Judge. Where the veracity of a witness is in doubt, his evidence should carry no weight. It is trite law that the appraisal of evidence and the ascription of probative value of such evidence is the primary function of the trial Court. Thus where the issue turns on the credibility of witnesses on appellate Court which has not seen the witnesses must defer to the opinion of the trial Court. In such cases, the opinions of the trial Court ought normally to be preferred.
The observation of the demeanour and the reaction of a witness to questions which are essential factors in the determination of the credibility testimony and the evaluation of the weight of evidence cannot he reproduced in the printed record. About these important factors, an appellate Court is only left to guesses and surmises.
It is trite law, that a trial Court is the best Judge of his domain as it relates to believing or disbelieving a witness. An appeal Court will not interfere unless it is shown that the inference drawn by the trial Judge was not supported by the evidence and the facts before him or was perverse.”
I adopt the dicta of the emeritus Chief Justice and his learned and distinguished brothers and hold the considered view that from the totality of the facts of this case, it is clear that the Court below dismissed the Plaintiff’s claim not only on the ground that the Appellant failed to call the 2nd Defendant or that the 2nd Defendant would have been in a better position to establish the genuineness of the title he passed to the Appellant. Apart from the foregoing reasons, the learned trial Judge also found that the evidence of the 1st Defendant/Respondent and witnesses were not only more credible, cogent and compelling than those of the Appellant and witnesses but he believed the 1st Defendant/Respondent and disbelieved the Appellant. The Court also in spite of the inelegance of the judgment had found that the 1st Defendant had proved better title to the property in dispute.
On the authorities above cited I therefore refuse to hold that the learned trial Judge was wrong to have dismissed the claim of the Plaintiff/Appellant even though he may have been wrong in holding that the Plaintiff’s case must fail for the failure of the 2nd Defendant to defend the Plaintiff’s claim against him. This Issue shall partly be resolved in favour of the Appellant.
ISSUE NUMBER TWO: “WHETHER THE LEARNED TRIAL IUDGE DID UNDERTAKE THE EVALUATION OF THE EVIDENCE ADDUCED BEFORE HIM?”
The grouse of the Appellant herein is that the Court below did not evaluate the totality of the evidence and even if it did, the evaluation was not adequate in view of the fact that eleven witnesses testified. Moreover, learned Counsel for the Appellant has contended that the trial Court did not evaluate the evidence of the Appellant and his witnesses to determine if they established the Appellant’s root of title and did not give reason for not finding the evidence of the Plaintiff’s witnesses not worthy of consideration. The learned counsel has also argued that the learned trial Judge gave more consideration to the case of the 1st Defendant/Respondent.
I have looked at the Record of proceedings and the judgment of the learned trial Judge as contained in pages 213 to 220 thereof. The law is settled that the judgment of a Court must not follow a particular pattern or rule of the thumb. Commenting on the format of judgment writing; in Usiobaifo v. Usiobaifo (2005) 3 NWLR (pt. 913) 563 at 592 paras. E – H; Tobi, JSC; observed thus:
“There is no constitutional requirement as to a particular format in the writing of a judgment. Being on art, it needs the peculiar and personal dexterity of the Judge who is the “artist”…… “no two Judges write judgment using exactly same house style and the same coloration, and all that. Each Judge has his own peculiar style and once the judgment contains the major attributes of a good judgment, an appellate Court will not interfere.
………..
A Judge is not bound to follow the method or methodology stated by Counsel in his Brief. Once a judgment of a trial Judge states the claim or relief of the Plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of Counsel, if Counsel are in the matter, reactions of the Judge to the arguments and the final order, an appellate Court cannot hold that the judgment is not properly written.”
However, a judgment must of necessity include the reasons or ratio for so deciding. Thus, where the reasons for a judgment are non-existent or broadly defective because the issues in controversy have not been resolved, such a judgment is bereft of its basic or bare essentials and therefore susceptible to being jettisoned on Appeal. This is so because a judgment in the true sense of it, is meant to finally dispose/resolve all the issues in controversy between the parties to the extent that none of the issues should be left in our local parlance as “an overnight” for further adjudication. See per Nnaemeka -Agu JSC of blessed memory in Adeyemo v. Arokopo (1983) SSCNJ 1 at 16.
In the celebrated case of Polycarp Ojugbue & Anor v. Ajie Nnubia & 4 Ors. (1972) 6 S.C. 227 at 236, the Supreme laid down the essentials of an ideal judgment per Coker, JSC that: “A judgment of the Court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the results of such an exercise.” Since it would appear that the Judgment of the learned trial Judge now on Appeal is the subject of caustic and intense pillory, it is necessary to reflect and draw inspiration from the opinion of our erstwhile judicial oracles for guidance. Oputa, JSC; when confronted with a similar situation as we have found ourselves where the manner the judgment of the learned trial Judge was written was criticised, laid out the three steps a judgment ought to follow although in a criminal case (Isaac Stephen v. The State (1986) 12 SC 450 at pages 504 – 506) and posited that the most important and crucial stage is that stage when the trial Court deals with perception of facts, belief or disbelief of witnesses and findings and conclusions based on the evidence accepted by the trial Court. Here his Lordship:-
“Having exercised his prerogative to believe or disbelieve having made his findings of fact the trial Court will draw conclusion from the facts as found. Finally, the trial Court would then discuss the applicable law against the background of the facts as found. Any judgment that follows the above pattern or something similar to it will be of invaluable help to the Courts of appeal as well as to the parties to the appeal. One would only wish that our trial Courts do approach the difficult task of writing judgment in some methodical and orderly fashion”.
See also per Craig, J.S.C; in Theophilius Onuoha v. The State (1988) 7 SCNJ (pt. 1) 20 at 24 – 25; who also opined on this vexed subject that while most judgments start with a review of the case for the prosecution (Plaintiff in Civil matters) followed by that of the defence, followed by a Statement of the law and concluded by a finding on the facts, it is admitted that writing a judgment is an art in itself and there are more than one way of going about it. Accordingly, he posited that it is possible to have as many variations of judgments as there are Judges.
His Lordship then advised that “What is essential is that a Judge should allow a clear understanding of the facts in the case, of the issues involved, of the law applicable and from all these, he should be able to draw the right conclusion and make a correct finding on the evidence before him.”
Coming home to the big question as to whether the learned trial Judge did evaluate the evidence, the Oxford Advanced Learner’s Dictionary defines the word “evaluate” as “vires to form an opinion of the amount, value or quality of something after thinking about it carefully”. It is also defined as synonymous with “assess”.
At page 216 of the Records the learned trial Judge alluded to Mogaji v. Odofin (1978) 3 SC 91; which is the locus classicus on evaluation of evidence although the dictum of Fatayi-Williams, JSC; (as he then was) was jumbled in the course of reproducing same. I shall now reproduce what the learned judicial icon of blessed memory said where, as in that case the Plaintiff (as in this present Appeal) claimed for Declaration of title and perpetual injunction, against the Defendants, but the learned trial Judge non-suited the Plaintiff. The parties appealed on the common ground that the judgment was against the weight of evidence as the present Appellant has posited in Ground 5 of the Amended Notice and Grounds of Appeal herein. His Lordship stated the position of the law inter alia:
“Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge after a summary of all the facts must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate low to it, if that law supports it bearing in mind the cause of action, he will then find for the Plaintiff. If not the Plaintiff’s Claim will be dismissed.”
He continued:
“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party but by the quality or probative value of the testimonies of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore in determining which is heavier, the Judge will naturally have regard to the following:-
a. Whether the evidence is admissible;
b. Whether it is relevant;
c. Whether it is credible;
d. Whether it is conclusive; and
e. Whether it is more probable thon that given by the other party.”
See again Bello v. Eweka (1981) 1 SC 101 at 118 – 120 where Kayode Eso, JSC (now of blessed memory) approved the above dictum also in his lead Judgment. Having gone through the entire gamut of the judgment of the learned trial Judge, I am of the candid view that the learned trial Judge had met all the Criteria as laid down by the leading authorities on the question of evaluation of evidence.
As had been held in the cases earlier cited the learned trial Judge need not put down the testimonies of all the witnesses in the evaluation process before arriving at his findings and conclusion. Besides, the learned Counsel for the Appellant seems to base his case on the quantity of witnesses called but as I had said earlier, the Court below had the advantage of seeing and hearing the witnesses and was accordingly in the best position to assess their credibility and ascribe probative value to their testimonies. Once the Court had come to the right Judgment, the reason for the judgment (Whether wrong) is immaterial. In the case at hand the learned trial Judge summarised the respective cases of the Appellant and the 1st Respondent and came to the inevitable conclusion that the evidence of the 1st Defendant/Respondent and witnesses preponderated that of the Appellant and his witnesses.
It has to be noted that the learned trial Judge had assessed the respective claims of the parties and the evidence led and although the summary of evidence is inadequate, and evaluation inelegant; by insisting that the 2nd Defendant ought to be called, it can be reasonable inferred that the evidence of the Plaintiff and his witnesses as to how the 2nd Defendant got the title of the house transferred to him were insufficient, and unreliable incredible and were accordingly rejected.
Moreover, as the learned Counsel for the 1st Respondent rightly submitted, the learned trial Judge found as a fact the testimony of the 1st Respondent and witnesses on the antecedents of ownership of the property before she met the absconding 2nd Defendant. The learned trial Judge also believed her evidence that she was a business woman and major distributor of Coca cola in Jimeta-Yola; that she was an agent of the National Directorate of Employment (NDE) who trained apprenticed tailors; that from the proceeds of those businesses she was able to acquire other property like a house and Petrol Filling Station, and the house which the 2nd Defendant mortgaged for a loan without her knowledge as well as her Toyota car which the 2nd Defendant mortgaged or sold and indeed, the fact that she tendered Exhibit 6, (the Agreement between her and Pius Usman) who was the common denominator between her and the 2nd Defendant, as far as the root of titled to the property in dispute is concerned.
The Appellant on the other hand only tendered Exhibits 1 and 2 (the Agreement of Sale of the property and the spurious Customary Right of Occupancy without any root), which all go to buttress the findings of the learned trial Judge, that the Appellant’s case apart from not calling the 2nd Defendant, lacked merit and ought to be and was accordingly dismissed.
The learned Counsel has relied on Section 101 (1) of the Evidence Act, on the proof of the existence of the maker of Exhibit 1 (the 2nd Defendant) and that the PW1, PW4 and PW5 led unchallenged evidence to show that DW3/1st Respondent signed same. I am of the considered view that no amount of/or type of unchallenged evidence, that was elicited by the Appellant and witnesses could have displaced the fact that the said Agreement and Customary Certificate of Occupancy lack any foundation when juxtaposed with Exhibit 6, 4, 4A, 5 and 7; and accordingly the oral evidence of the said witnesses for the Appellant were rightly rejected. The same goes for the cases of Ndem v. Nkpinang (supra), Chukwu v. Nneji (supra), Plateau Publishing v. Adophy (supra) and Jadcom Ltd. v. Ogun Electricals (supra), cited by learned Counsel for the Appellant which may have been decided on their peculiar facts and circumstances.
On the authority of Onisaodu v. Elewuju (2006) 13 NWLR (pt. 998) 517 at 529 – 530 as relates to the evidence of the DW1 which evidence rather supports the case of the Plaintiff, the fact still remains that the signing of that agreement is without foundation for if the 2nd Defendant had bought the land from Pius Usman the Agreement between 2nd Defendant and Pius ought to have been handed over to the Appellant. Assuming that the said Agreement had been lodged with the Yola Local Government which purportedly issued the Customary Right of Occupancy, same was not tendered before the court even though the PW1 purported that he conducted the search at the Local Government Office and confirmed its genuineness. Moreover, the PW5 testified that the PW1 who conducted the search at the Local Government Office confirmed the genuineness of the Customary Right of Occupancy Certificate.
Even then, the said Right of Occupancy was not accompanied by any site plan of the property, and PW1 in both his evidence Chief and under cross-examination confirmed that he did not see any site plan, not to talk of any Agreement between Pius Usman and the 2nd Defendant. It is trite that no Certificate of Occupancy or Customary Right would have been issued by the Local Government Authorities without the site plan of the property and the original title documents from whom the 2nd Defendant derived his root of title which he purportedly transferred to the Appellant.
Before rounding up the resolution of this Issue, I shall not fail to commend to learned the Counsel for Appellant, the illuminating exhortation of His Lordship, the erudite Honourable Justice Karibi-Whyte, JSC; to Appellate Courts in I.P.D. Abaye v. Ikem Uche Ofili & Anor (1985) 1 S.C. 231 at 329 – 330; that:
“It is well settled in our jurisprudence that where the judgment of the Court is right, and only the reasons for the judgment are wrong, the appellate Court will not interfere with the judgment merely because of the wrong reasons. What the Appeal Court is concerned with is whether the decision of the Judge was right not whether the reasons were. In Ukejianya v. Uchendu 13 WACA of P. 46 Blackall P. said,
“It seems to me, however, that what this Court has to decide is whether the decision of the Judge was right not whether his reasons were. It is only if the misdirection had caused him to come a wrong decision that it would be material.”
On the whole, I am satisfied that the learned trial Judge evaluated the evidence of the witnesses to the best of his ability and came to the inevitable decision that the Plaintiff/Appellant did not prove his claim. This Issue shall be resolved against the Appellant.
ISSUES NUMBERS 3 AND 4: WHETHER EXHIBITS 5, AND 6 ARE ADMISSIBLE, RELIABLE AND CAPABLE OF ESTABLISHING THE DEFENDANT’S CLAIM TO OWNERSHIP OF THE LAND IN DISPUTE? AND WHETHER THE PLAINTIFF PROVED HIS CLAIM TO BE ENTITLED TO JUDGMENT?
In attempting to resolve these issues let me restate the time honoured and established legal principle as was decided in the celebrated case of Kodilinye v. Odu (1935) 2 WACA 336 at 337 – 338 per Webber, CJ; which has been followed in a litany of cases by the apex Court and this Court on claims for declaration of title to land that: “The onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the 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 o judgment decrees no title to the Defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somehow confused, and there is little to choose between the rival traditional stories, the Plaintiff fails in the decree he seeks and judgment must be entered for the Defendants.” See Kaiyaoja v. Egunla (1974) 12 SC 55; Enigwe v. Akaigwe (1992) 8 LRCN 486; Adeyeri v. Okobi (1997) 51 LRCN 1529 and Adeniran v. Alao (2001) 92 LRCN 3253 at 3267 and 3268 per Uwaifo, JSC.
This onus as laid down in the above dictum is, like in all civil matters, always discharged on the preponderance of evidence adduced by the party and on the balance of probability.
It is also trite that, the Plaintiff must in the discharge of this burden/onus rely on the strength of his case and not on the weakness of the Defendant’s case. If the onus is not discharged the weakness of the Defendant’s case ordinarily will not assist his case and the proper order to make in the circumstance is to dismiss the Plaintiff’s case. See Kaiyojola v. Egunla (1974) 12 S.C. 55; Enigwe v. Akaigwe (1992) 8 LRCN 486; Adeyeri v. Okoli (1997) 51 LRCN 1529, Adeniran and Usman v. Joda (1998) 13 NWLR (pt. 581) at 383 – 384.
Again, in the recent cases of Nwokorobia v. Nwogu & 2 Ors. (2009) 4 – S.C. (pt.11) 145 at 185 (2009) 38 NSCQR 142 and Onisaodu & Anor v. Elewuju (2006) 13 NWLR (pt. 998) 529 -530 paras. A – B; Per Tabai; the Supreme Court has also established that in land matters like the one in this Appeal, which is for declaration of title and where the Respondent also Counter-Claimed; the parties were expected to establish with concrete evidence the declaratory Reliefs they claimed. However, although each of the parties was expected to depend and succeed on the strength of his or her case, each of the parties can rely on the evidence of the other that supports his case in line with the concept of admission against interest.
The law is also trite that there are five ways of establishing title to land or as in this case the property in dispute. See the land mark case of Idundun v. Okumagba (1976) 1 N.M.L.R. 200 (1976) NSCC (vol.10) 445 at 455 and the often quoted dictum of Fatayi Williams, JSC (as he then was); who enumerated the five ways to include:-
1. By traditional evidence;
2. By production of title documents;
3. By acts of person(s) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it extending over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner (Ekpo v. Ita 11 NLR 68);
4. By Acts of possession and enjoyment of the land;
5. Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
In the instant case, apart from the oral testimonies of parties and their witnesses, each of the parties has anchored his or her case on documents of title and acts of numerous possessions and enjoyment of the house in question. The basic question that calls for an answer from Issue Number 3 of the Appellant is whether the documents tendered by the 1st Defendant/Respondent as Exhibits 5 and 6 are admissible, reliable and capable of establishing the Defendant’s ownership of the property in dispute. It would be recalled that when Exhibit 6 was tendered in the Court below the learned Counsel raised an objection against its admissibility on the ground that the Agreement is for the sale of land which must mandatorily satisfy the requirement of section 15 of the Land Instruments Registration Law of Northern Nigerian and therefore ought to be registered before it could admitted in evidence.
In response to the objection, the learned Counsel for the 1st Defendant/Respondent submitted that the document was pleaded in paragraph 4 (5) of the Statement of Defence and that Section 15 of the Land (Customary?) Instruments Registration Law does not make the document absolutely inadmissible because the doctrine of registration is one legal requirement but the document can be admitted in equity. He also reminded the Court that Exhibit 1 of the Appellant which is also Agreement of transferring title to land was earlier admitted by the Court. As rightly submitted by the learned Counsel for the Appellant, the Court in its ruling at page 191 of the Records simply remarked without ruling on Section 15 of the Land Instruments Registration Law thus:
“Court: I have heard Counsel about the admissibility or otherwise of the agreement of sale of a plot. It is a fact in issue and by the strength of the provision of section 8 of the evidence low 2004 notwithstanding the objection raised is admissible because same is relevant, the said document is admitted and to be marked as Exhibit ADSY/40/99 -6.”
Now, Section 15 of the Land Instruments Registration Law provides that:
“No instrument shall be pleaded or given in evidence in any Court affecting land unless the same shall have been registered…”
In the recent case of Ayanwale v. Odusami (2011) 18 NWLR 328 at 348 – 349, Adekeye, JSC supporting the lead Judgment of Rhodes-Vivour, JSC; held thus;
“Production of a deed of conveyance or document of title is one of the five ways of acquiring ownership, of title to land. Even then production of a deed of conveyance or any document of title does not automatically entitle a party to a claim in declaration. Before the document of title is admitted as sufficient proof of ownership, the Court must satisfy itself that:
(a) The document is genuine or valid,
(b) It has been duty executed, stamped and registered.
(c) The grantor has authority and capacity to make the grant.
(d) The grantor has in fact what he proposes to grant.
(e) That the grant has the effect claimed by the holder of the instrument.
Romaine v. Romaine (1992) 4 NWLR (pt. 238) pg 650; Kyari v. Alkoli (2001) FWLR (pt. 60) 1487 (2001) 11 NWLR (pt. 724) 412 and Dabo v. Abdullahi (2005) 29 WRN 11 (2005) 7 NWLR (pt.923) pg 81.”
A look at Exhibit 6 would reveal that it is captioned “LAND/PLOT AGREEMENT” but there is no indication that it has been registered although it is stamped and executed by Pius Usman – the original owner of the land and Mama Maria – the purchaser, with the names and signatures of the witnesses Amadu Usman, Joseph Onyike and Baba Bera. There is no indication that Pius Usman had no authority to make the grant or sale and from the Agreement, it is clear that he transferred his absolute and legal interest to Mama Maria now known as Elizabeth Moses. From the pleadings of the 1st Respondent in paragraphs 4(a) – (e) of her Amended Statement Defence and her evidence and those of his witnesses, she became the beneficial owner of the land as well as erected the buildings in the premises now in dispute; lived in the compound now known as No. 39 Mohammed Mustapha Way Jimeta-Yola and exercised acts of ownership, possession and control such as renting the rooms to various tenants and collecting rent for over thirteen years without being challenged. Exhibits 4 and 4A dated 25th January, 1984, and 17th January, 1987, respectively were tendered as evidence of possession and control over the premises.
It should be noted also that the 1st Respondent had pleaded and elicited evidence to the effect that the property was not covered by any Customary Certificate of Occupancy and that the Appellant connived with the absconding 2nd Defendant to rip her off her hard earned property because of her illiteracy. Exhibit 5 dated 5th October, 1995, the Minutes of the Emergency Board Meeting of the Seventh Days Adventist Church Box 1243, Yola, which heard the complaint of the 1st Respondent against the 2nd Defendant whom she alleged sold her house at Mohammed Mustapha Way which she acquired many years before knowing the 2nd Defendant was also tendered by the 1st Respondent.
In the said minutes the 2nd Defendant in response to the allegations amongst which was the selling of the property in dispute, was recorded to have denied the allegation and pointed out that he had no moral right to sell a property that does not belong to him. He also was said to have advised his wife to forget such rumour in other not to destroy their marriage. They were also other allegations of fraud against the said 2nd Defendant contained in the said Exhibit 5 which the Board of the Church also heard. See page 5A thereof and paragraphs 7 and 8 of the Amended Statement of Defence and the evidence of the DW2 and DW3 in support of the 1st Respondent’s pleadings on the documents relied upon to establish her title to the property in dispute.
The bone of contention herein and the Court below by the learned Counsel for the Appellant is that Exhibit 5 being a registrable instrument which has not been registered cannot be pleaded and if pleaded is not admissible in evidence. In Lawson v. Afani Cont. Co. Nig. Ltd. & Anor (2002) 2 NWLR (pt 752 585 at 613; Salami JCA (as he then was) while commenting on the provisions of the Land Registration Law, CAP 85, Laws of Kaduna State of Nigeria (1991) which is in pari materia with the provisions of the Land Instruments Registration Law of Northern Nigeria relied on the cases of Registered Trustees of NMHC V. Adeagbo (1992) 2 NWLR (pt. 226) 690 and Eso v. Adeyemi (1994) 4 NWLR (pt 340) 558; to hold that: “Exhibit 1 purports to transfer interest in land. It is for that reason a registrable instrument by virtue of Section 3(2) of the Land Registration Law, CAP 85, Laws of Kaduna State of Nigeria, 1991 which requires all instruments including power of Attorney affecting land to be registered. It provides that all documents transferring or affecting interest in land are registrable and should he registered. A Registrable Instrument which is not registered cannot be pleaded and if pleaded it is not receivable in evidence but where through inadvertence it is admitted it should be expunged. This proposition of law is encouraged by Section 15 of Land Registration Law Cap. 85.”
The decision of my Lord above cited notwithstanding, the Supreme Court, in the recent case of Agboola v. U.B.A. Plc. (2011) 11 NWLR (Pt.1258) 375 at 406, paras. E – F and 407 para. H has put it beyond peradventure that an unregistered registrable instrument can be admitted in equity was evidence of transaction or even purchase receipt for the property in dispute. In the above cited case Per Mukhtar, J.S.C. (as he then was), delivering the lead judgment of the apex Court when confronted with a similar scenario as we have found ourselves, intoned:
“I am satisfied that even though the document was not registered, and was so not admissible in view of the provision of sections (2) and (15) of the Land Instrument Registration Law, it was admissible for the purpose of establishing the transaction between the vendor and the purchaser. In this respect, I endorse the finding of the learned Court of Appeal which reads thus:
“It is my considered view that Exhibit D2 is admissible in evidence to prove the fact that some money exchanged hands between the parties in exhibit D2 – in this case N1,000.00 on account of the land transaction testified thereto.”
Tabai, J.S.C. on his part while concurring with the position taken by his learned brother, held thus: “For the 3rd defendant who is respondent herein there is Exhibit D2 a Deed of Conveyance which though stamped, was not registered. Having regard to the fact that it was not registered, it was inadmissible as evidence of title. It was however admissible in proof of the transaction between the within named parties in which the sum of N1,000.00 was paid for the land.”
Adekeye J.S.C. in his contribution also supported the views expressed by his learned brothers citing the cases of Nsiegbe v. Mgbemena (2007) 10 NWLR (pt. 1042) 364 and Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (pt.4) 783; and went a little further to posit that even though Exhibit D2 the Deed of Conveyance is an unregistered registrable instrument it is however, trite law that a purchaser of land who has paid and taken possession of the land by virtue of the unregistered registrable instrument has thereby acquired an equitable interest that can only be defeated by a purchaser of the land for value without notice of prior equity.
From the foregoing dicta of their Lordships of the Supreme Court, it is clear that the 1st Defendant’s Exhibit 6 was admissible in spite of its non-registration at least to show that there was a transaction between her (the 1st Defendant) and Pius Usman in respect of the property in dispute. In the same vein, she acquired an equitable interest which is as good as a legal interest on the said property. As regards Exhibit 5 even though it is a certified photocopy of the minutes of the Board Meeting of the Seventh Day Adventist Church Jimeta-Yola which the 1st and 2nd Defendants were members; it is not a public document as purported by the learned Counsel for the Respondent and it is admissible by the combined effect of Sections 95(b), 97(g), 109 and 110 of the old Evidence Act. See the cases of Esso West Africa Inc. v. Y. Alli (1968) N.M.L.R. 414, R. v. Whyte (1983) 76 Cr. App. R. 110; Lafone v. Griffin (1909) 25 T.L.R. 308 and R. Taoridi Lawani (1959) L.L.R. 97; on the ground of relevance and in any case because the custodian and member of that Church has testified and buttressed the fact that such a meeting was held so as to deliberate on the complaints made by the 1st Defendant/Respondent against the 2nd Defendant that amongst others, the said 2nd Defendant had sold her house which the 2nd Defendant denied, Exhibit 5 was admissible more particularly as the learned trial Judge had relied on Section 8 of the old Evidence Act to admit the document. See also Section 7 of the Act and the cases of Holmes v. Newman (1931) 2 Ch. 112 and 120 and Otti v. The State (1991) 8 NWLR 103 at 119. In the celebrated case of Dr. T. U. Torti v. Chief Chris Ukpabi & 2 Ors. (1934) 1 SC 370 at pp. 412 and 413; Eso, J.S.C. commenting on the bases of admissibility held that: “I think that admissibility should be based on relevance…… Once a matter….. For evidence, documentary or otherwise, to be admissible, it is sufficient that proper ground of its relevance is laid.”
Going by all the above analysis, the submissions of the learned Counsel on this issue and particularly in paragraphs 6.5 to 6.8 of the Appellant’s Brief that Exhibits 4, 4A and 5 tendered by the 1st Defendant/Respondent are not documents of title may be correct to some extent but as I had said earlier those Exhibits go a long way to buttressing the facts that the 1st Defendant/Respondent purchased that land, built the houses on the premises; occupied same and exercised positive acts of ownership and possession as laid down in Idundun v. Okumagba (supra) as some of the modes of proving title to land or property. The Court below was therefore right to have admitted those documents together with the testimonies of her witnesses in declaring title for 1st Respondent.
Turning to ISSUE NUMBER FOUR (4) which is whether the Plaintiff proved his claim so as to be entitled to judgment, I adopt into, to my stance on Issue Number 2 and reiterate on the authority of Ayanwale v. Odusami (2011) 18 NWLR 328 at 348 – 349, Per Adekeye, JSC supporting the lead Judgment of Rhodes-Vivour, JSC; which position has been re-echoed in Agboola v. U.B.A (supra) at 413 paragraphs A – D per Adekeye JSC; (see further Ayorinde v. Kuforiji (2007) 4 NWLR (pt. 1024) at 341; Dosunmu v. Dada (2002) 13 NWLR (pt.783) 1 and Dabor v. Abdullahi (2005) 7 NWLR (pt. 923) 181); that mere production of Exhibits 1 and 2 does not automatically entitle the Appellant to the ownership of the property in dispute. One may be tempted based on the dictum of his Lordship Adekeye JSC; at page 416 of Agboola v. UBA (supra) that there is no title to land better and stronger than the title granted to the holder by a statute once the words of the statute granting the title are clear and unambiguous as the Court is enjoined to give effect to the unambiguous intention of the legislature (Din v. A.G. Federation (2004) 12 NWLR (pt. 888) 454 referred); to agree with the learned Counsel for the Appellant that there is presumption of ownership in favour of the Appellant.
In Uche v. Eke & Ors. (1993) 9 NWLR (pt.564) 24 at 35 paragraphs B – E; Iguh, JSC; contributing to the lead judgment of Belgore, JSC; where the fundamental issue that fell for determination as in this case was as between the Appellant and Respondent who had established better title to the land in dispute, succinctly expounded the position of the law thus:
“The main issue that arises for resolution in this Appeal is which of the parties that established o better title to the land in dispute. In this regard, the foundation of the Appellant’s claim to the land in dispute is based wholly on the deed of lease, Exhibit A and the deed of surrender, Exhibit B. The Appellant, as Plaintiff in the trial Court, and on the state of the pleadings was entitled to succeed in his claims only if he established a better title to the land in dispute than the Respondents who were the Defendants in the suit. The crucial question for determination is whether the deeds, Exhibit A and B transferred any title to the land in dispute to the Appellant. Both Courts below proffered answers to this question in the negative and I respectfully agree with them on this issue.
In the first place, it has been stressed times without number that it would be wrong to assume that all a person who resorts to a grant as a method of proof of his title to land needs do is simply to produce his deed of title and rest his case thereon. Without doubt the mere tendering of such document of title may be sufficient to prove such grant where the title of the grantor to such land is either admitted or not in dispute. Where, however, as in the present case, an issue has been seriously raised as to the title of such a grantor to the land in dispute, the origin or root of title of such a grantor must not only be clearly averred in the pleadings, in must also be proved by evidence. See Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745 at 782 and 783.”
Thus, ordinarily, the Customary Right of Occupancy (Exhibit 2) handed over to the Appellant should be better and stronger title than Exhibit 6 tendered by the 1st Defendant/Respondent provided that the said Right of Occupancy was regularly Issued by a competent authority in which case it raises the presumption of ownership and exclusive possession in favour of the Appellant. Again, going by the same dictum of Agboola v. UBA PLC and other cases cited on the nature of equitable interest, Exhibits 1 and 2 ought to have conferred legal and equitable interests on the Appellant and defeated the prior interest of the 1st Respondent assuming the appellant was not aware (as a purchaser for value of the property) of the prior interest of the 1st Respondent and/or the fraudulent intent of the 2nd Defendant in selling what does not belong to him to the Appellant.
However, from the totality of the facts of this case and the surrounding circumstances, Exhibits 1 and 2 are questionable as it is clear from the evidence which the Court below believed that the 2nd Defendant had no authority and capacity to sell out the property; did not have what he purportedly sold to the Appellant and the grant or sale by the 2nd Defendant has no effect as claimed by the Appellant because the 1st Respondent by Exhibit 6 and other documentary Exhibits, her testimony and those of her witnesses have rebutted the presumption of ownership in his disfavour. Moreover, and this is very crucial, the Customary Right of Occupancy lacks any foundation as there is no agreement between 2nd Defendant and Pius Usman and his sister Demsawo to whom both the 1st Respondent and 2nd Defendant traced their root of title. PWL purported that he investigated the root of title at the Local Government Office but he never tendered the Land Sale Agreement between the Original owners of the land and the 2nd Defendant.
Even the evidence of PW7 who purported that: “Page 1586 is the approval (sic) ad page 1587 is the land plot agreement between Aishatu Demsawo and Mr. Pius Usman and Mr. Moses M. A. Anobih”, and the so called corroboration of the evidence of the PW1 by the host of witnesses for the Appellant including DW1 who testified against the interest of the 1st Respondent, did not help the case of the Plaintiff because the so called agreement did not exist for if it did, it would have been tendered by the said PW7. Still on Exhibit 2, PW1 admitted that he did not see any site plan which should have accompanied the agreement before due registration and issuance of the purported Customary Right of Occupancy.
On the whole I reiterate that irrespective of the inelegance of the learned trial Judge’s judgment, he was right to have held that the Plaintiff/Appellant failed to prove title to the property in dispute and that the 1st Respondent from the preponderance of evidence established her counter-claim, thus warranting the dismissal of the Appellant’s claim and granting the l-” Respondent’s Counter-Claim in its entirety. I am therefore reluctant to interfere with the judgment of the lower Court. Issues Numbers 3 and 4 are hereby resolved in favour of the 1st Respondent and against the Appellant Ordinarily, Judgment would have been entered in favour of the Appellant if his claim was brought against the 2nd Defendant/Respondent only. Since the 1st Respondent has proved better and superior title to the property in question and her Counter-Claim has succeeded, the claim of the Appellant is hereby dismissed in its entirety with N50,000.00 costs in favour of the 1st Respondent. I affirm the Judgment of Honourable Justice B. P. Lawi of the Adamawa State High Court of Justice, Yola Division in suit No.ADSY/41/99 delivered on the 17th day of May, 2007, and further order accordingly in terms of the orders made therein by the learned trial Judge.
SOTONYE DENTON-WEST, J.C.A.: I have had the pleasure of perusing through the illuminating and well articulated Judgment of my distinguished learned brother Ignatius Igwe Agube (JCA) just delivered. I wholistically concur with my lord. Nevertheless, it interests me by way of addendum to state as follows;
It is now a principle beyond dispute and argument in our Nigerian legal jurisprudence that the onus lies on a person who asserts to prove the existence of facts asserted and the standard of such proof in civil cases especially the one culminating in this appeal is on the preponderance of evidence. (See Section 134 of the Evidence Act, 2011).
In a claim declaration of title to landed property, the Plaintiff must succeed on the strength of his evidence and must not at all depend on the weakness of the Defendant. (See Atuanya v. Onyejekwe (1975) 3 SC 115, Dari Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Pt.2) 299 at 318, Kodilinye v. Odu (1935) 2 WACA 336).
In the case of Ayanru v. Mandilas Ltd. (2007) 10 NWLR (Pt. 1043) 462, the Apex Court held thus:-
“The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant in the present case is trite. A claim for relief of declaration, whether of title to land or not, is not established by an admission by the Defendant, because the Plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a court does not grant declaration on admission of parties because the court must be satisfied that the Plaintiff on his own evidence is entitled to the relief claimed. See David Fabunmi v. Abigail Agbe (1985) 1 NWLR (Pt.2) 299 at 318, Kodihinye v. Odu (1935) 2 WACA 336, and Woluchem v. Gudi (1981) 5 SC 291, Ogundairo & Ors. v. Okanlawon & Ors. (1963) 1 All NLR 358, Bello v. Eweka (1981) 1 SC 101, Motunwabe v. Orungbe (1988) 5 NWLR (Pt. 92) 90, Ogunjuwon v. Ademola (1995) 4 NWLR (Pt.387) 254, Kwajaffa v. Bank of the North Ltd. (2004) 13 NWLR (Pt.889) 146 at 172 and Ndayako v. Dantaro (2004) 13 NWLR (pt. 889) 187 at 214”.
Where a Plaintiff fails to prove the base upon which he founded his title, the claim will fail. See Adole v. Gwar (2008) 11 NWLR (Pt.1099) 562, Ekpo v. Ita 11 NWLR 68, Ajani v. Ladepo (1986) 3 NWLR (Pt. 28) 276, Mogaji v. Cadbury (1985) 2 NWLR 393 ratio 9 at 395 and 430, Odolin v. Ayoola (1984 11 SC and Primate Adejobi’s case (1978) 3 SC 65.
In our legal system, one of the recognized ways of proving title to land is by the production of valid documents evidencing grant. This however does not mean that once a registered instrument is tendered in court it automatically proves that the property sought to be conveyed by that instrument belongs to the grantee.
See Ngene v. Igbo (2000) 4 NWLR (Pt.657) 131, Piaro v. Tenala (1976) 12 SC 31 P.37, Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.
It is not disputable that if a Plaintiffs claim is found on conveyances as the legal basis of ownership, his duty is simply to produce the documents of the title or the title deeds. See Aigbobobi v. Aifuwa (2006) 6 NWLR (Pt.976) 270. However, where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the claimant to go further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the Plaintiff fails to discharge this onus, his claim must fail. (See Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) 1.
I agree with my Lord’s opinion that ordinarily the customary Right of Occupancy Exhibit 2 handed over to the Appellant should be better and stronger title than Exhibit 6 tendered by the 1st Defendant/Respondent provided that the said Right of Occupancy was regularly issued by a competent authority in which case it raises the presumption of ownership and exclusive possession in favour of the Appellant.
The 2nd Respondent is regarded as an incompetent authority in this appeal because his authority, title or interest over the property, the subject matter of this appeal, was not established through out the proceedings at the court below. Worst still, the said 2nd Respondent absconded from participating in proceedings at the court below to justify the transaction between him and the Appellant. This therefore means that he parted with the property which does not belong to him thereby running foul of the legal principle:
nemo dat quod non habet – Which means you cannot give what does not belong to you or what you do not have.
Furthermore, it is my view that before parties can execute transactions of this nature, proper inquires and search should be conducted. This is because we are in a society where human actions are unpredictable. Had the Appellant in this appeal made a proper search as regards the subject matter of dispute, his conviction and conclusion perhaps, could not have been the same.
It is not untrue that a whole lot of witnesses ought not be brought in proof of the Appellant’s claim at the court below, but there are material witnesses whose evidence are indispensable for the just and equitable determination of the case at the court below, one of whom is the 2nd Respondent. It is equally undoubtable that the Appellant tried to reach the 2nd Respondent but impracticable but the fact remains that the absence of the said 2nd Respondent is catastrophic to the Appellant’s case. Similarly, the Appellant’s failure to trace the root of title of the 2nd Respondent whom he acquired the property is to my mind fatal to his case.
It is on this basis and the fuller reasons proffered by my Lord, that I found this appeal as lacking in merit and is accordingly dismissed.
I abide by all the orders made including order as to cost.
ABUBAKAR ALKALI ABBA, J.C.A.: I have the honour and privileged to read the lead Judgment of Hon. Justice I. I. Agube, JCA.
I am in agreement with my learned brother Agube, J.C.A. that;
1. The trial Judge rightly held that Plaintiff/Appellant failed to prove title to the property in dispute.
2. That the 1st Respondent from the preponderance of evidence established her counter-claim thus warranting the dismissal of the Appellant’s claim in its entirety.
3. That I also agree that Judgment of trial court cannot and should not be interfered with.
4. That I also resolve issue No.3 and 4 in favour of the Respondent against the Appellant.
5. That I also dismiss this appeal with N50,000 (Fifty thousand naira) cost in favour of the 1st Respondent.
6. I also affirm the Judgment of Hon. Justice B. P. Lawi of the Adamawa State High Court of Justice Yola. Decision in Suit No.ADS/40/99 delivered on the 7th day of May, 2007 and further order accordingly in terms of the orders made therein by the learned trial Judge.
Appeal dismissed.
Appearances
S. S. Obende Esq. – Appellant For Appellant
AND
J. Olabode Makinde Esq. with him M. J. Ifegwu for the 1st Respondent For Respondent
