BUBA & ANOR v. MAHMUD & ANOR (2020)

BUBA & ANOR v. MAHMUD & ANOR

(2020)LCN/14789(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/G/358/2019

RATIO

COURT: PRINCIPLES GUIDING THE COURT IN THE EVALUATION OF EVIDENCE

It has been held in a plethora of cases that in the evaluation of evidence, the trial Courts are guided by the following principles, namely;
a. Whether the evidence is admissible
b. Whether the evidence is relevant
c. Whether the evidence is credible
d. Whether the evidence is conclusive and
e. Whether the evidence is more probable than that given by the other party.
Mogaji vs Odofin (1978) 4 SC pg 91, Akad Industries Ltd vs Olubode (2004) 4 NWLR pt 862 pg 1. PER NDUKWE-ANYANWU, J.C.A.

EVIDENCE: WHO CAN VALIDLY ADMINISTER AN OATH

This invariably means that their counsel, not being a notary public is not in a position to administer an oath. The law provides that the written deposition must be made on oath before a Commissioner for Oaths.
It is on record that the four witnesses of the Appellants signed their deposition in their lawyer’s office. The law is that such deposition on oath must be signed in the presence of the person authorized to administer oaths. The witnesses by themselves gave in evidence that they signed their witness statement in their lawyer’s office.
Such statements offend the Oaths Law and S. 112, 117 of the Evidence Act and S. 19 of the Notaries Public Act. See Chidubem vs Ekenna (2008) LPELR 3913 Aliyu vs Bulaki (2019) LPELR 46513. PER NDUKWE-ANYANWU, J.C.A.
APPEAL: MAIN FUNCTION OF AN APPELLATE COURT

The main function of an Appellate Court is to re-examine and re-evaluate the evidence received by the trial Court. This is achieved by examining the whole record of Appeal before the Court per Tobi JSC in Dada vs Bankole (2008) LPELR 907, Akeredolu vs Akinremi (1989) where Kawu JSC held:
“The main function of an Appeal Court, in my view, is in the first place, to determine whether an error has been committed, it will then consider its gravity and magnitude to justify the reversal of the judgment of the trial Court. It is not every error committed by a trial Court that would automatically lead to the reversal of its decision. Such an error must have substantially and materially affected the decision of the trial Court.”
Ordinarily an Appellate Court is not entitled to substitute its view for that of the trial Court. However, where it appears that the lower Court admitted inadmissible documents, the Appellate Court would re-evaluate these documents as an Appellate Court is in as good a position as a trial Court in the evaluation of documentary evidence. Per Edozie in Gonzee (Nig) Ltd vs NERDC (2005) LPELR 1332. PER NDUKWE-ANYANWU, J.C.A.

LAND LAW: ONUS IN A CLAIM FOR DECLARATION OF TITLE TO LAND

In a claim for declaration of title to land the onus is on the plaintiffs/Respondents to establish their claim upon the strength of their own case and not upon the weakness of the case of the defendants/Appellants. The Respondents must therefore, satisfy the Court that upon their pleadings and evidence adduced by them, they are entitled to the declaration sought. Gbadamosi vs Dairo (2007) 3 WURLR pt. 1021 pg 282, Dada vs Dosunmu (2006) 18 NWLR pt 1010 pg 134, Onisaodu vs Elewuju (2006) 13 NWLR pt 998 pg 517, Ajiboye vs Ishola (2006) 13 NWLR pt 998 pg 628. PER NDUKWE-ANYANWU, J.C.A.

LAND LAW: EFFECT OF THE PAYMENT OF THE PURCHASE PRICE BY A PARTY

The payment of the purchase price by a party for a property automatically confers a right on the party which right is enforceable unless otherwise determined. EFP. CO Ltd vs NDIC (2007) pt 1039 pg 216.
Similarly a purchase of land can be proved by a purchase receipt or by an agreement of sale, or by any fact that shows such transaction did take place. ADEPATE Vs BABATUNDE (2002) 4 NWLR pt 756 pg 96. PER NDUKWE-ANYANWU, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

1. DR. ABBA BUBA 2. ABBA UMMATE MANDARA APPELANT(S)

And

1. AMBASSADOR MAHMUD 2. KORIMI SULEIMAN RESPONDENT(S)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Borno State delivered on 30th May, 2019 by Hon Justice A.G Kwajaffa. The brief facts of this appeal is that the Respondent as claimant in the Lower Court claimed the following:
a. A declaration that 1st claimant is the rightful and the legal owner of the 4 plots of land which share border by the north with Ba’musa by the south with Mallam Umar by the west with Ba’saleh and by the east with main road linking Wadiya Village lying and situate at Ajajari fogori galtimari ward, Maiduguri Borno State.
b. A declaration that the defendant is a trespasser.
c. An order for perpetual injunction restraining the defendant whether by himself, heirs, agents, servants, privies or whosoever from further trespassing onto the 1st claimant land
d. N500,000 as general damages
e. Cost of the suit.

The 1st Respondent claimed that the brother of the 2nd Respondent Babagana Suleiman sold four (4) plots of land to him. This transaction was evidenced in a document of 2nd June, 2010, Exhibit A. The land was sold

for One Million Naira (N1,000,000.00). The Appellant and defendant/counter claimant in the lower Court claimed he bought three (3) plots for Seven Hundred and Fifty Thousand Naira (N750,000.00) from one Ya-Bulama Wayimata. This transaction was reduced into writing and tendered as Exhibit B. The Appellant further registered the said sale in Jere Local Government Council as JRLG/CAND/2995 on 22nd November, 2010 in Vol. 65 pg 47 of the Register. This Certificate of Occupancy was for a term of 99 years.

The Appellants erected a wall and put a gate before the Respondent sued them in Court claiming the reliefs already recapped.

The Respondents called 2 witnesses and tendered Exhibit A. 1st Appellant testified himself as Dw1. The 2nd Appellant as defendant called 4 witnesses and tendered Exhibits B and C. At the end of the trial, written addresses were filed and adopted. The learned trial judge thereafter, delivered his considered judgment in favour of the Respondents. Being dissatisfied the Appellants filed their notice and 6 grounds of Appeal on 25th June, 2019.

The Appellants filed their Appellants’ brief on 7th November, 2019. The reply

brief was filed on 21st January, 2020, in the Appellant’s brief they articulated two (2) issues for determination as follows
1. Whether from the pleadings and the evidence, adduced by the parties, the Respondents as claimants have joined issue with the Appellants and proved their case to warrant the trial Court enter judgment in their favour. Distilled from grounds 1, 3, 4 and 5.
2. Whether having regard to the evidence adduced before the trial Court, the Court has properly evaluated the issue raised by the parties before entering judgment for the Respondents. Distilled from Ground 2 and 6.

The Respondents filed their brief on 3rd December, 2019 and articulated two (2) issues also for determination:
i. Whether or not from the evidence before the trial Court, the Respondents are entitled to the reliefs sought.
ii. Whether or not Appellants has put a credible defence and the 2nd Appellant counter claim is competent.

ISSUE 1
The Appellants’ Counsel submitted that the 1st Appellant is just a trustee for the 2nd Appellant who was not joined in the earlier suit. The 1st Appellant sought and obtained an order of Court and

joined the 2nd Appellant. Thereafter, the 2nd Appellant filed his statement of defense and counter claim. The Respondent/counter/Respondent did not file a reply or respond to the counter claim. It therefore, meant that the counter claim was not defended by the Respondents. It is trite law that any averment in a pleading that is not challenged are deemed admitted and the Court should act upon it. See Malle vs Abubakar (2007) All FWLR pt 360 pg 1569.

Counsel submitted that Respondent’s root of title is traced to the 2nd Respondent. A person seeking for a declaration of title must plead and prove the root of title of his grantor. Ukaegbu vs Nwololo (2009) All FWLR pt 466 pg 1852.

The 2nd Respondent testified that the land in dispute is the late brother Babagana Suleiman’s portion he bought from their father. He also claimed that Babagana Suleiman the 2nd Respondent’s brother the supposed vendor is dead. However, the same Babagana Suleiman whose deposition on oath was filed and he actually testified as Dw1 and Dw4 and stated that he has no land neither does their late father have land around the area of the disputed land. This assertion

was not challenged during the trial of the main suit and that of the counter claim.

Counsel submitted that once the Respondents did not challenge this evidence, it would be deemed admitted and require no further proof, see Malle Vs Abubakar (supra). Counsel argued that in civil cases, it is the duty of parties to prove their case as presented in their pleadings.
Therefore, the Court is expected to act on such evidence as presented.

Counsel referred the Court to the holding of the trial judge which he said was wrong. The judge held inter alia
“it is further submitted on behalf of the claimants and quite rightly too in my humble view that the second Defendant who did not testify called 4 witnesses and tendered 2 exhibits but failed to call Ya-Baulama Wayimta and Ali Shuwa who he claimed are vital witnesses whom he is tracing his title. As it stands there is no evidence linking with the said land which is in dispute to the second defendant.”

Counsel re-iterated that the party reserved the right to call as many witnesses as it wishes to prove its case.

Counsel argued that the Respondents used more of traditional history

rather than document to prove his case. Babagana Suleiman is the witness of 2nd Appellant and claimed no knowledge of Exhibit A. See Jodi vs Salami (2009) All FWLR pt 458 pg 385. Counsel urged the Court to hold that Exhibit A was not authentic with all the flaws on it and not capable of establishing the Respondent’s case.

Counsel finally urged the Court to hold that the Respondents did not prove their case to entitle them to a declaration they sought.

ISSUE 2
Appellant’s Counsel submitted that the trial Court did not evaluate the evidence placed before it by the parties before reaching its decision. See AHMED VS REGD. TRUSTEES of A.K.R.C.C (2007) All FWLR pt 347 Pg 632. From the evidence of the Respondents as Pw1 and Pw2 there was no clear description of the 4 plots of land bought and in dispute. See NRUAMA VS EBUZOEME (2007) All FWLR pt 347 pg 723.

Counsel recapped to the Court the following facts that were not disputed.
a. The 2nd Appellant was joined as necessary party for the just determination of the matter at the trial Court, see pages 28 to 33 of the record of Appeal.
b. The 2nd Appellant entered appearance and

filed his statement of Defence and counter claim but the Respondent did not reply to it. See page 35 to 81 of the Record of Appeal.
c. The statement of defence and counter claim of the 2nd Appellant Remain unchallenged and uncontroverted.
d. Failure to challenge the 2nd Appellant position means admission of the claim.

Counsel submitted that the trial judge did not evaluate the evidence proffered by the parties in reaching his decision. Counsel urged the Court to re-evaluate the evidence proferred by the parties in reaching a just conclusion.

RESOLUTION
The Respondents in their response hammered greatly on the evaluation of relevant evidence placed before the Court. It has been held in a plethora of cases that in the evaluation of evidence, the trial Courts are guided by the following principles, namely;
a. Whether the evidence is admissible
b. Whether the evidence is relevant
c. Whether the evidence is credible
d. Whether the evidence is conclusive and
e. Whether the evidence is more probable than that given by the other party.
Mogaji vs Odofin (1978) 4 SC pg 91, Akad Industries Ltd vs Olubode (2004) 4 NWLR pt 862 pg 1.

The Respondents’ counsel referred the Court to the witness statements on oath of Dw1, Dw2, Dw3 and Dw4. These witnesses testified under oath in Court that they signed their witness deposition in their lawyer’s office. This invariably means that their counsel, not being a notary public is not in a position to administer an oath. The law provides that the written deposition must be made on oath before a Commissioner for Oaths.
It is on record that the four witnesses of the Appellants signed their deposition in their lawyer’s office. The law is that such deposition on oath must be signed in the presence of the person authorized to administer oaths. The witnesses by themselves gave in evidence that they signed their witness statement in their lawyer’s office.
Such statements offend the Oaths Law and S. 112, 117 of the Evidence Act and S. 19 of the Notaries Public Act. See Chidubem vs Ekenna (2008) LPELR 3913 Aliyu vs Bulaki (2019) LPELR 46513.
The witness statements of the Dw1 – Dw4 signed in the lawyer’s office are all incompetent and inadmissible. It is hereby expunged having failed the statutory

test of authenticity and admissibility. See Erokwu vs Erokwu (2016) LPELR 41515.

Having struck out the witness statements of the witnesses, the cross-examination and the Exhibits B and C tendered by them are all expunged from the record of proceedings.

the Appellate Court would re-evaluate these documents as an Appellate Court is in as good a position as a trial Court in the evaluation of documentary evidence. Per Edozie in Gonzee (Nig) Ltd vs NERDC (2005) LPELR 1332.

After expunging the deposition of the Appellants’ witnesses, their cross-examination and the Exhibits tendered, it would mean that the Appellants had no defence and counter claim. What is left now is the claim of the Respondent which only requires minimum proof.

The Respondents as plaintiffs gave evidence that they bought four (4) plots of land from the 2nd

Respondent’s brother, Babagana Suleiman.
The transaction was reduced into writing, Exhibit A. Both parties to the transaction including their witnesses signed. Even if it was not registered, it manifestly showed an equitable interest in the land that only someone with a better title can defeat.
The payment of the purchase price by a party for a property automatically confers a right on the party which right is enforceable unless otherwise determined. EFP. CO Ltd vs NDIC (2007) pt 1039 pg 216.
Similarly a purchase of land can be proved by a purchase receipt or by an agreement of sale, or by any fact that shows such transaction did take place. ADEPATE Vs BABATUNDE (2002) 4 NWLR pt 756 pg 96.

Like I said earlier on, there is no defence to this suit as the sworn depositions of the Appellants’ witnesses have been expunged together with their evidence under cross examination and the two Exhibits B and C. I have no doubt in my mind that the Respondents have succeeded in proving their claim by minimum proof.

This appeal is unmeritorious. It is dismissed. The judgment of the lower Court is affirmed.
No orders as to costs.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the lead Judgement of my learned brother, Ndukwe-Anyanwu, J.C.A., and I agree with her conclusion that the Appeal is lacking in merit.

From the facts of the case, the entire witnesses’ statements on oath made by the Appellants’ four (4) witnesses, having been expunged from the record along with the documentary evidence offered in proof of their title, i.e. Exhibits B and C respectively, the Respondent’s claim stands uncontested.
As a result, the Respondents, having tendered Exhibit A as evidence of the transaction of their purchase of the land, it remained as evidence of their equitable interest in the land. In the absence of a better title to the land produced by the Appellant, the Respondents were entitled to Judgement in their favour.
See Ishola V Oluwalogon (2013) LPELR-22206(CA) 48, per Tsammani, JCA; Enadeghe V Eweka (2014) LPELR-24479(CA) 9, D-E, per Ogunwumiju, JCA; Ero V Tinubu (2012) LPELR-7869(CA) 25-26, D-B, per Mshelia, JCA; Ayorinde V Fayoyin (2001) FWLR (Pt. 75) 483.

In the result, I also find the Appeal bereft of merit. It is accordingly dismissed. I abide by the consequential Orders in the lead Judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA. I adopt the reasoning and conclusion reached in the Judgment that the appeal is unmeritorious.

I should want to state that even though the failure of the Respondents to file a reply to the statement of defence and defence to the 1st Appellant’s Counter-claim left the said counterclaim undefended, the 1st Appellant still bore the same burden as the Respondents to prove his Counterclaim though cogent and reliable evidence, and to succeed on the strength of his own case and not rely on any weakness in the Respondents case.
However, there was a complete failure on the side of the 1st Appellant to discharge that burden. The witness statements on oath of Appellants’ witnesses were incompetent and liable to be expunged, and when so expunged, the Appellants’ case was exposed unsupported by any evidence. Thus, the burden of proof on the Respondents became minimal. From the evidence on record the evidence was sufficient to prove the Respondents’ claims.

That leads me to the conclusion as reached in the lead Judgment that the appeal is devoid of merit, and deservedly dismissed. In consequence, the Judgment of the lower Court is affirmed.

Appearances:

YUNASA, ESQ. For Appellant(s)

S. BABAGUBI, with him, A. AHMED and C. YANTA, ESQ. For Respondent(s)