DUTSE v. ARDO & ORS
(2022)LCN/16385(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, May 24, 2022
CA/YL/36/2020
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
BITRUS MAZAN SARKIN DUTSE (For Himself & Dangu Family) APPELANT(S)
And
1. YUSUF ARDO 2. BALA MAKERI 3. USMAN VELEN 4. BATURE ALHAJI RESPONDENT(S)
RATIO:
POSITION OF LAW ON THE DECLARATION OF TITLE TO LAND
It is a long-settled principle of land law, that in an action for declaration of title to land, the onus lies on the party claiming title to satisfy the Court, that he is entitled on evidence adduced by him to declaration of the piece of land claimed. That is to say, it is the duty of the party who seeks a declaration of title to land to establish and prove his claim by credible evidence. The onus, therefore, lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. He must of necessity rely on the strength of his own case and not on the weakness of the defendant’s case. See EZULUMERI OHIAERI & ANOR. VS. ADINNU AKABEZE & ORS. (1992) 2 SCNJ 76; OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326; ELEMA VS. AKENZUA (2000) 6 SCNJ 226; YUSUF VS. ADEGOKE & ANOR. (2007) 4 SCNJ 77. FATIMA OMORO AKINBAMI, J.C.A.
POSITION OF LAW WHERE DECLARATION SOUGHT OVER TITLE TO LAND FAILS
Simply put, once the identity of the land over which declaration is sought is not clear, the case of the plaintiff is doomed to fail. See BENEDICT OTANMA VS. KINGDOM YOUDUBAGHA (2006) 1 SCNJ 94; IJAMA OTIKA ODICHE VS. OGALI CHIBOGWU (1994) 7 – 8 SCNJ (PT. 11) 317; MIDFORD EDOSOMWAN VS. KENNETH I. OGBEYFUN (1996) 4 SCNJ 21. FATIMA OMORO AKINBAMI, J.C.A.
POSITION OF LAW ON FAILURE TO GIVE THE EXACT EXTENT AND IDENTITY OF THE LAND IN DISPUTE
It is therefore basic that where a plaintiff claims a declaration of title to land, and fails to give the exact extent and identity of the land in dispute, his action is bound to fail because the issue of identity of the land is a sine qua non to the success of such claim. See IYAMA OTIKA ODICHE VS. OGALI CHIBOGWU supra and IORDYE VS. IHYAMBE (2000) 12 SCNJ 117; JOSEPH OLUSANMI VS. HENRY OSHASONA (1992) 6 SCNJ 287. FATIMA OMORO AKINBAMI, J.C.A.
POSITION OF LAW ON A CLAIM FOR DECLARATION OF TITILE BASED ON TRADITIONAL EVIDENCE WITHOUT ROOT OF TITLE
It is however trite that where a claimant relies on traditional evidence and fails to establish his root of title his claim for declaration based on such traditional history will fail. See Owoeye v Oyinlola (2012) 15 NWLR (Pt 1322) 84 at 89 ratios 2,3, and 4. FATIMA OMORO AKINBAMI, J.C.A.
POSITION OF LAW ON FAILURE TO PROVE THE IDENTITY OF A LAND IN DISPUTE
However as earlier addressed in this judgment, where a claim is for ownership of land, the plaintiff must prove the identity of the land in dispute, failing which his claim must collapse, because the issue of identity of land is germane and paramount in such claim and as such must be ascertained with certainty. See PETER OKONKWO VS. BERNARD & ORS. supra; CHIEF D.M. OKOCHI & ORS. VS. CHIEF A. ANIMKWOI & ORS. (2003) 6 SCM 113. FATIMA OMORO AKINBAMI, J.C.A.
POSITION OF LAW ON THE CLAIM FOR TRESPASS AND INJUNCTION TO SUCCEED
Furthermore, for a claim for trespass and injunction to succeed, it must be tied to an identified or ascertained area and such claim must be refused if the area to which it relates is vague or uncertain. See UGBO VS. ABURIME (1994) 9 SCNJ 23 and NWOKIDU VS. OKANU (2010) 1 SC (PT. 1) 136. FATIMA OMORO AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Taraba State High Court of Jalingo Judicial Division delivered by Hon. Justice A.B Abbare on the 18th day of October 2019, in favour of the Respondent. Dissatisfied with the judgment the Appellant appealed to this Court, via Notice of Appeal dated 8/01/2020 and filed on 9/01/2020, upon four grounds of appeal.
The Appellant who was Plaintiff instituted this suit against the Respondents who were Defendants via a Writ of Summons before the trial Court wherein he Claimed as follows:
1. A declaration that the plaintiff and his family members are the owners of the disputed land.
2. A declaration that the defendants are trespassers on the land.
3. An order of perpetual injunction restraining the defendants, their agents, privies or how so ever called from further acts of trespass on the land.
4. General damages of five million Naira (N5,000,000)
5. The sum of five hundred thousand naira (N500,000) as costs of litigation.
STATEMENT OF MATERIAL FACTS
The facts of this case are that the Appellant as the Plaintiff before the trial Court, claimed via a Writ of Summons in Suit No TRSJ/10/2017 among other things, a declaration of title to the disputed land
The Appellant called two (2) witnesses; himself as PW1, and another PW2, who testified to the fact that the Appellant inherited the land in dispute from his late uncle.
Meanwhile, the Respondents neither filed any pleadings nor called any witnesses in the defense, but instead, arguing that the Appellant’s case has been discredited on cross-examination and that it fails to prove title to the disputed land.
In his decision, the learned trial Court Judge adopted the submissions of the Respondents and entered judgment in their favour by dismissing the suit, hence this appeal. Upon being served with the Appellant’s originating processes, the Respondents did not file any process in defence.
The suit at the trial Court was contested between the Appellant, and the Respondents despite the fact that the Respondents were duly served, but did not file any process in defence of the suit before the trial Court.
At the conclusion of hearing, and after the close of each Parties case, judgment was delivered by the trial Court on 8/10/2019, in favour of the Respondents against the Appellant.
The Appellant was dissatisfied with the decision. Hence, on 8th January 2020, the Appellant lodged a 4-ground notice of appeal, copied at pages 177 – 179 of the record, wherein he prayed this Court:
i. An Order of this Hon. Court allowing the appeal
ii. An order of this Hon. Court setting aside the judgment of the trial High Court delivered on 18th day of October, 2019, dismissing the claims of the Appellant
iii. An order of this Hon. Court entering judgment for the Appellant/ granting all the reliefs sought before the trial Court.
OR
iv. Any other or better order as be deemed fit to make by the Hon. Court in the circumstances of this appeal.
In compliance with the Rules of this Court, parties exchanged Briefs of Argument.
At the hearing of the appeal, Learned Counsel on behalf of their clients, adopted their respective Briefs of Argument, I. A. Jalo Esq adopted Appellant’s Brief of Argument as well as the Reply Brief, while B. Vaatsav adopted Respondents’ Brief of Argument.
Appellant’s counsel urged the Court to allow the appeal, set aside the judgment of the lower Court.
The Respondents’ Counsel in reply urged the Court to dismiss the Appellant’s appeal and affirm the judgment of the lower Court.
Appellant’s Counsel formulated two issues for determination from the (4) four grounds of appeal filed. They are:-
“WHETHER in the circumstance of this case, there could be said to be any successful challenge of the Appellant’s case by the Respondents (Distilled from grounds 1& 3 ).
“WHETHER the learned trial Judge was right in law when he held that the plaintiff/appellant did not discharge the burden of proof of title to the disputed land.” (Distilled from Grounds 2 & 4).
The Respondent’s counsel on his part formulated a lone issue for determination which by ‘a calm perusal of the Appellant’s, 4 ground of appeal, the said lone issue if determined by this honourable Court is capable of taking care of the entire appeal.
“Whether the appellant is entitled to judgment in his favour, going by the facts and circumstances of this case? (Distilled from grounds 1, 2, 3 and 4 of the grounds of appeal).”
The Appellant filed a Reply Brief. I will refer to it as the need arises. I have carefully perused the issues distilled by the parties. I am of the view that the lone Issue formulated by the Respondent encapsulates the grounds of appeal. I will determine this appeal on Respondents’ Issue.
LEGAL ARGUMENT ON THE ISSUES FORMULATED
ISSUE ONE:
Appellant’s counsel urged this Court to answer their Issue 1 in the negative. He submitted that while it is a known general principle of law that a plaintiff in a declaratory suit must prove his case, and cannot rely on the weaknesses of the defendant’s case, it is as well a cardinal principle of the law that, pleadings and evidence unimpeached and pleadings uncontroverted from veritable proof can be relied upon by the Court. However, the law is very clear that where the case of the defence supports that of the plaintiff, as in this case, the plaintiff is entitled in law to rely on such weakness in the defence in proof of his case. Therefore where a witness called by the defendant gives evidence which supports the plaintiff’’s; the evidence of such witness must be treated as an admission upon which the plaintiff is entitled to rely as further re-enforcement of his case. See ELEWUJU & ANOR V ONISAODU & ANOR (1999) LPELR-6566 (CA) (P.46, PARAS. B. Also in an action of this nature, the Appellant must bring forward cogent evidence which must tilt the imaginary scale in his favour. The Plaintiff/Appellant is not however expected to prove his case beyond reasonable doubt, as in criminal cases, nor is there a midway in the standard of proof between criminal and civil in such a claim. All that is required is that the evidence produced by the plaintiff/Appellant to support his claim of title must be such that can support a declaratory relief and which, in the end, when placed on the scale of justice, will tilt in his favour. See CYPRIAN ONWUAMA V LOISUS EZEOKOLI (2002) 9 NSCQR PG 233 AT 236 RATIO 7. As much as the plaintiff is not allowed by law to rely on the weaknesses of the defendant’s case, and must prove his case on the merits, to entitle him to a declaratory relief, this does not negate the corresponding principle of law that pleadings unchallenged are deemed admitted before the Court, and therefore, the Court can safely rely on same to attach probative value with a view to proving the plaintiff’s case. The argument that the Appellant’s evidence has been punctured and contradicted at the trial Court, which was relied upon by the lower Court, does not hold water because assuming without conceding that there is contradiction, those contradictions relate only to the testimony of PW2, and are in fact not material enough to impeach his testimony or demolish the case of the appellant. See DIAMOND BANK V. OKPALA (2016) LPELR-41573 (CA); Makinde v. Akinwale (2002)2 NWLR (Pt. 645) 435 at 450
My Lords it is the crux of the Respondents’ case before the trial Court that they relied on the testimonies of the Appellant’s witnesses on cross-examination to demolish the case of the Appellant. This, to say the least, amounts to conveniently circumventing the rules of evidence and the burden of proof known to law. It was decided in a plethora of authorities that facts elicited from a party by his opponent during cross-examination cannot be used against the party if the material fact relating to the evidence is not pleaded.
NEW NIGERIAN NEWSPAPER LTD. (1986) 2 NWLR (Pt. 25) 353 at 364. Furthermore, it has been adjudged that “it is elementary law that evidence obtained during cross-examination, but on facts not pleaded is as a matter of fact inadmissible”. See REMI ADEKUNLE V. OLOROGUN OSKAR C.Y IBRU (2018) LPELR-44119 (CA) P. 50. This same position was reiterated by the Supreme Court in OMISORE & ANOR V. GBAKEJI & ANOR (2015) LPELR-24803. See INLAND BANK NIG PLC & ANOR. V. FISHING & SHRIMPING CO. LTD (2010) LPELR-9158(CA); CHIEF AKIN OMOTOSO v. MR. ABAYOMI AKOGUN & ORS (2018) LPELR-46368(CA).
In this case, there is no challenge at all as to the identity or location of the land in dispute, as the Respondents, in this case, did not file any defence to the Appellant’s claim before the trial Court. The Appellant in this case, has the primary duty to prove clearly and unequivocally the precise area to which his claim relates. However, that burden will not arise where the identity of the land in dispute was never in issue, as in this case. Issue of identity of land will only arise where the defendant raises it in his statement of defence, and supported by evidence. So to know if the identity of the land in dispute is in issue, the Court must refer to the pleadings of the parties. See Olakunori & Ors V Sadibo (2014) LPELR-23081 (CA) PP. 19-20, PARAS. F-A
The Appellant in his statement of claim at paragraphs 3-9 of his amended statement of claim, at pages 102 to 103 of the record of appeal, has provided the location and identity of the land in dispute and that was never formally challenged by the Respondent. Learned counsel submitted that it is ultimately the duty of the Court, to weigh the evidence received from both sides and decide where the scale tilts on qualitative and compelling evidence. There is no gain saying that it is the totality of the evidence led, which are material to the case that the Court considers and this ultimately tilts the scale of balance in favour of the party that adduced it, based on the preponderance of evidence. See IKYEREVE IORDYE v. IHYAMBE (2000) 15 NWLR (PT. 692) 675. There is no contradiction in this case as raised by the Respondents in their final address before the trial Court, and assuming there is, contradictions are not material enough to affect the evidence adduced on the merit by the Appellant, before the trial Court. He therefore urged this Court to resolve this issue in the appellant’s favour.
LEGAL ARGUMENT/SUBMISSION ON ISSUE TWO
In arguing issue two learned counsel submitted that, it is an age long position of the law that a claimant or the plaintiff in a civil suit can only be entitled to judgment on the strength of evidence he placed before the Court in proof of his/ her case, but not on the weaknesses of the case of the Defendants. See ADEWUYI VS ODUKWE (2005) 13 LRCN 2510. Proof in civil matters is by the preponderance of evidence, and on the balance of probability. See EYO VS ONUOHA & ANOR (2011) 195 LRCN 38 AT44 RATIO 2 See SECTION 134 OF THE EVIDENCE ACT, 2011. A careful perusal of the record of appeal will reveal that the Appellant, has discharged this burden by presenting pleadings and leading evidence as to his ownership of the land in dispute. It is not in dispute that the Appellant led clear and uncontroverted evidence that points to the family of Dangu as the owners of the disputed land, same having been founded, deforested and settled on by the appellant’s uncle Maruban Mashumbi. This can be clearly seen on the face of the appellant’s uncontroverted amended Statement of Claim in paragraph 3, 4, 5, 6, 7 and 8 at pages 102-103 of the printed record of appeal. This is further reinforced by PW1’s evidence-in-chief in paragraphs 3, 4, 5, 6, 7 and 8 of the Witness Statement on Oath of Bitrus Mazan Sarkin-Dutse, as seen on pages 108-109 of the record of appeal. Learned counsel reiterated the fact that vital evidence adduced at the trial Court, that goes to support the above assertions, is the evidence-in-chief of PW2, as contained in paragraphs 2, 3, 5, 6 and 8 of the witness statement on oath of Adamu Ardo Maisukuni, as can be seen on pages 112-113 of the record of appeal, and which was adopted on 8/5/17. Part of the testimony of PW2, states that; “That Maruban Mashumbi and his younger brothers who are now late founded, deforested, settled and farmed on the verse land… that sometimes I have to help Maruban Mashumbi to harvest his guinea corn on the land…that in my 70 years on this earth and at Dangu, I have never seen anybody farming on the said land apart from the family members of the plaintiff” All of these go to prove an act of first settlement which was not in any way disputed or controverted by the Respondents in this appeal, not to mention the leasing of the disputed land by the plaintiff to the 4th defendant, and collection of portion of harvest as consideration, which is clear act of ownership. The position of the law is clear from an avalanche of authorities that an act of first settlement can be accepted as a satisfactory means of proving title to land. We refer my lords to the decision in ABISOYE ATALOYE & ORS v. SUNDAY BANJO FABONMI & ANOR (2018) LPELR-44871(CA), where it was held that “It is established in law that where traditional evidence including evidence of first settlement is satisfactorily placed before the Court and is accepted, title to the land can be declared on such evidence alone” See also the cases of Odofin V. Ayoola (1984) II SC 22; Alli V. Alesinloye (2000) 6 NWLR (Pt.660) 172 AT 196.
My lords, it raises miscarriage of justice that the learned trial Court Judge narrowed the proof of title to land in this case based on the yardstick of the principle spelt out in IDUNDUN v. OKUMAGBA (1976) 1 NMLR (Pt. 200) which borders on traditional evidence as a means of proving title. Assuming that this is the only means by which the defendants can assert and prove title, he submitted that the three (3) criteria to wit: (a) who founded the land; (b) how the land was founded and (c) the particulars of intervening owners through whom he claims would have been satisfied. The gamut of evidence points unequivocally to Maruban Mashumbi, the uncle of the plaintiff who first founded and deforested the land along with his brothers Zodni Mashumbi, Sanya Mashumbi, Gasa Mashumbi, Maashowase Mashumbi, Maazan Mashumbi and Mado Mashumbi. As to the particulars of intervening owners, it is in evidence that the said land has been a family land on which the family members of the plaintiff have been farming for over 70 years, as stated by both PW1 and PW2, and it is noted that none of the above was materially contradicted on cross-examination or elsewhere. In such cases, the Appellant been the chief and family head has the requisite standing to sue in defence of the family land on the authority of SAPO v. SUNMONU (2010) All FWLR (Pt. 531 14091 142. Learned counsel submitted that even if, without conceding, the claim for title does not succeed under the above principle, without equivocation, that the law has laid out various means by which title to land can be proved and it was not proper for the trial Court to select a preferred means of proof and dismiss the appellant’s case based on same. See CHIEF AKIN OMOTOSO v. MR. ABAYOMI AKOGUN & ORS; Alli v. Aleshinloye (2000) FWLR Pt.2610 at 263 -264.
My lords, the Supreme Court of Nigeria has liberalized and widened the scope and concept of proof of title to land. See Onwuka & Ors. v. Ediala & Anor (1989) 1 SC (pt. 11) 1.
SUMMARY AND CONCLUSION
Based on the evidence adduced by the Appellant before the trial Court, the trial Judge decided against the weight of evidence. The Appellant has successfully discharged his burden by his pleadings, and through credible evidence to prove his claim before the trial Court, and such evidence remains unchallenged and uncontroverted. The Respondents had every opportunity to at least file or formally respond to the Appellant’s claim, but they chose otherwise. Learned counsel urged this Court to allow this appeal and set aside the decision of trial High Court and enter judgment for the Appellants.
The Respondent’s counsel in arguing their lone issue urged this Court to answer the issue in favour of the Respondents as against the Appellant, dismiss this appeal and proceed to affirm the judgment of the trial Court.
The Appellant instituted this case before the trial Court for, amongst other things, a declaration of title to him and his family in respect of a piece of land said to be situated somewhere in Ardo Kola L. G. A. Taraba State. And by law, the burden of proof is strictly on him to prove his case. See Sections 131 (1) and (2),132 and 133 of the Evidence Act, 2011.
Learned counsel contended that in a claim for declaration of title to land, the law recognizes five (5) ways by which a claimant can establish root of title to land. That is:
a: Proof by traditional evidence.
b. Proof of various acts of ownership and possession numerous and positive to warrant inference of ownership.
c. Proof by production of documents of title which must be authenticated.
d. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done.
e. Proof of possession of connected adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See BELLO VS SANDA (2012) 1 NWLR (PT. 1281) P. 219 AT 223 R. 2. See also YUSUF VS. ADEGOKE (2007) 4 S.C (PT. 1) P. 126 AT 137 R. 2. Learned counsel submitted that by the scanty pleadings, and evidence on record, in this case, it is very difficult, if not impossible, to state categorically which one of the above methods of proof of title to land has been picked, and chosen by the Appellant in this case, in his attempt to prove his title to the disputed land. Nevertheless and be that as it may be, one may slightly gather here and there from the pleadings of the Appellant and become of the conclusion that the Appellant has attempted to base his claim of title in this case on traditional history. It is submitted that, it is mandatory as a point or requirement of law, for the Appellant to not only plead, but to prove with sufficient evidence the traditional history relating to his acclaimed root of title to the disputed land. In the case of ODUBOTE VS. OKAFOR (2012) 11 NWLR (PT.1312) P.419 AT 439CH & 439-440H-B R. 6 the Court of Appeal (Ibadan Division) held as follows:
“A party who relies on traditional evidence in proof of title to land must plead and prove who founded the land, how the land was founded and particulars of the intervening owners. In this case, the appellant did not plead traditional history in line with the requirements of the law.”
It is further submitted that the trite law is that the burden of the proof of title to land by traditional history, is said to have been discharged only if a party, in this case the Appellants (the plaintiff), has met up with the conditions as was stated by the Supreme Court in the case of ANYAFULU VS. MEKA (2014) All FWLR (PT. 731) 1510 AT 1523 H-B R.1. In view of the above requirement of the law, the question therefore is that did the Appellant, in this case, prove his case as required by law so as to be entitled to any judgment in his favour? The answer is a capital ‘NO’. And the reasons for this are as outlined and argued below
The first reason why the case of the Appellant is basically a subject for dismissal is that going by the record, the only witnesses’ statements on oath of the PW1, and PW2 found on pages 10 – 12 and 13 – 14 of the record respectively, that were actually adopted before the Court are incompetent processes in law, and as such are worthless papers in view of the fact that same were thumb printed before the Appellant’s counsel other than before the proper person to administer such oath. Under cross-examination of the Appellant (PW1) on page 42 lines 16-17 of the record, he stated as follows:
“Yes, the thumb print in my statement on oath is the one I made in the office of my lawyer.”
The PW2 has the following to say under his cross-examination at page 43 lines 15-16 of the record:
“Yes, I thumb printed on my statement in the office of the plaintiff’s counsel”.
Learned counsel submitted that the above answers by the PW1, and PW2 have rendered their respective statements on oath defective and the entire evidence, in this case, have become useless in law and as good as no evidence. See BUHARI VS. INEC (2008) 19 NWLR (PT. 112) 246. See also Section 119 of the Evidence Act, 2011 which provides that: “Where the deponent makes a mark instead of signing the jurat shall state that fact, and that the mark was made in the presence of the person before whom it is taken.”
Section 112 of the Evidence Act, 2011 states out who and who an affidavit which is the same as deposition on oath should not be taken before them. The section provides that:
“An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner”.
See CHIDUBEM VS. EKENNA (2009) All FWLR (PT.455)1692.
On the strength of the above therefore, counsel submitted that the statements on oath of the PW1, and PW2, who were the only witnesses of the Appellant are completely defective and have no probative value whatsoever and he urged this Court to so hold and discountenance with same.
The second reason why the Appellant is not entitled to judgment in his favour in this case, is related to the first reason stated above and it is to the effect that, since the PW1, and PW2, have no legally accepted statements on oath before the Court, in view of the fact that they thumb printed same in the Appellant’s counsel’s office, such statements therefore stand and remain invalid in law; they are no evidence and cannot be cured even by any amendment. This is because having admitted that the said statements were made in the presence of the Appellant’s lawyer, to turnround and amend same would actually be an attempt to outsmart the Respondents, thus occasioning miscarriage of justice to them. See INAKOJU VS. ADELEKE (2007) VOL. 143 LRCN P.1 AT 108 KP, R. 37 where the Court held that:-
R.37:
“A party who decides to present his case miserly, cunningly, or by deliberate instalments to win by all means in litigation has himself to blame when the strategy backfires.”
But assuming without conceding that amendment is capable of curing any such defect as complained of above then, counsel submitted that going by the applicable principles of law relating to or guiding the conduct of civil proceedings through pleadings and amendment of the said pleadings, the Appellant has totally failed, neglected and refused to call any evidence in this case to support his pleadings especially after he had amended the said pleadings alongside with the statements on oath of the PW1, and PW2, who had earlier testified before the said amendment was effected. This failure, counsel submitted, is very fatal to the case of the Appellant.
Order 38 Rule 1 (1) of the Taraba State High Court (Civil Procedure) Rules, 2011 provides that:
“Subject to these Rules and any other enactment relating to evidence, any fact required to be proved at the trial of any action, shall be proved by written deposition and oral examination of witnesses in Court.”
The Taraba State High Court (Civil Procedure) Rules, 2011, strictly provides to the effect that the statement on oath of witnesses, and such other processes to be filed by a plaintiff (Appellant) alongside with his Writ of Summons and Statement of Claim. See Order 1, Rule 2 (2) of the Taraba State High Court (Civil Procedure) Rules, 2011. And the same Rules again provide for amendments to be made in the course of trial of an action but before a party closes his case. See particularly Order 26 Rules 1, 2, 5 & 6 of the Taraba State High Court (Civil Procedure) Rules, 2011.
It is on record and beyond doubt that after the Appellant had long closed his case and final written addresses were already filed, exchanged and ready for adoption by parties then, on 6/02/2019 the Appellant then filed Motion No. TRSJ/78M/2019, and was accordingly granted leave by the trial Court, based on the prayers of the said motion wherein amendments were made on the Appellant’s Writ of Summons, statement of claim, all the respective witnesses’ statements on oath and list of witnesses in line with the provisions of the said Rules. In view of the said amendments made by the Appellant in this case particularly with respect to the witnesses’ statements on oath therefore, it follows that for whatever reason or defect, the plaintiff was not satisfied with the earlier statements on oath of his witnesses in this case hence the amendment of the said witnesses’ statements on oath including that of the PW1, and PW2 who had earlier, before the said amendments, testified and were both cross-examined on the 8/5/2017.
The Appellant having effected amendments particularly on the witnesses’ statements on oath of the PW1, and PW2 and same, deemed as having been properly filed then, the earlier statements on oath of the PW1 and PW2 found respectively on pages 10 – 12 and 13 – 14 were automatically substituted or replaced with their respective witnesses’ statements on oath later amended, re-sworn and filed on 6/2/201 found particularly on pages 127 – 130 and 131 – 133 of the records respectively.
In view of the above therefore it is trite law, that the legal effect of an amended process is that upon such amendment the affected or original process(es) automatically becomes impotent and officially dead process(es). See UZODINMA VS. IZUNASO (2012) 211 LRCN P.253 AT 213 UJJ & 214A R.12; AHMED VS. REGD. TRUSTEES OF A.K.R.C.C. (2007) All FWLR, (PT.347) P.623 AT 637F, R.2; ORJI VS. DORJI TEXTILES MILLS (NIG.) LTD (2010) 182 LRCN P.129 AT 154 R.7.
By the very application to amend the statements on oath of the Appellant’s witnesses PW1, and PW2, who had earlier testified and the case of the Appellant closed, the Appellant was deemed in law to have intended to recall the PW1, and PW2 to come and give life to their new statements on oath by again adopting their amended statement on oath in Court, as their evidence in chief so that they could still be cross-examined afresh, based on the new/amended statement since their earlier statements on oath and their evidence under cross-examination thereto became moribund and lifeless by virtue of the amendment. This, the Appellant however grossly failed, neglected and refused to recall both the PW1 and PW2 for this purpose. See BUHARI VS INEC &ORS (2009) 167 LRCN 1 AT 136, R. 38. The earlier statements on oath of both the PW1, and PW2 the only witnesses called by the Appellant which were amended subsequent ones remain so amended, and dead and the failure by the Appellant to reopen his case and recall both the PW1, and PW2, to again adopt their later amended statements on oath thus giving the Respondents an equal opportunity to cross-examine the PW1, and PW2 afresh on same, means that the said amended statements on oath of both the PW1 and PW2 are lifeless and were, at best, dumped on the Court and acting on same or attaching any probative value to them is as equal as breaching the Respondents’ right to fair hearing. See Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
On the strength of the above, this Court is urged to so hold that, the Appellant has no legally acceptable evidence before this Court, in proof of the claim contained in his amended statement of claim, that can be legally acted upon by the Court and consequently, the earlier evidence of both the PW1, and PW2, both in chief and under cross-examination are lifeless and of no probative value in law whatsoever. See ABOLARIN VS OGUNDELE (2012) 10 NWLR (PT.1308) 253 AT 281D-F R. 9.
In this circumstance, the case of the Appellant has become a subject of dismissal as the Respondents did not even need to call evidence in this case, as there was none called by the Appellant to prove any point that would require the Respondents to call any in disprove of that said point the Appellant’s case had collapsed on its very arrival to the Court, and has remained so till date. See again Sections 131 (1) and (2), 132 and 133 of the Evidence Act, 2011. The position of law on the shift in the burden of proof is as was judicially stated in the case of ORJI VS. DORJI TEXT MILLS (NIG) LTD & ORS (2010) 182 LRCN P.129 AT 147KP R.3.
The Respondents never filed any pleadings in this case, and did not support the case of the Appellant in any way. As such, the submission made by the Appellant and the authority cited by him under paragraph 4.1 of the Appellant’s brief of argument is inapplicable to this case.
In response to paragraphs 4.3 and 4.4 of the Appellant’s brief of argument, in the case of BELLO VS. SANDA (SUPRA) the Court stated the 5 methods of proving title to land. And the proof of title to land has to be done by credible evidence as to who founded the land, how he founded same and the particulars of the intervening owners up to the present claimant. See ANYAFULU VS. MEKA (SUPRA).
Learned counsel further submitted in response to paragraphs 5.1, 5.2, 5.3, 5.4 and 5.6 of the Appellant’s brief of argument, in this case, a careful perusal of the pleading i.e. the statement of claim of the Appellant including the evidence thereto, the scanty traditional history of the Appellant is to the effect that the disputed land is alleged to have been single-handedly founded and deforested by an uncle of the Appellant’s known by name as Maruban Mashumbi. See particularly paragraph 3 of the amended statement of claim (page 121 of the records). However, under paragraph 3 of the statement on oath of the PW2, on page 131 of the record, he stated to the effect that Maruban Mashumbi along with his younger brothers found and deforested the land.
On the strength of the above that with the contradictions and inconsistencies as to who actually founded and deforested the land i.e. as between Maruba Mashumbi alone and Maruban Mashumbi along with his younger brothers, the case of the Appellant is struck to the very root and touches the title of the Appellant and renders same hanging, this makes this case a subject of dismissal and as such the Appellant cannot claim to have proved his case as to who founded the land as required by law. See ONYEKWELU VS. ELF PETROLEUM (NIG) LTD (2009) 173~LRC.N P. 186R.5.”
It is submitted that apart from the Appellant’s scanty and contradictory pleadings above as to who actually founded and deforested the land, the Appellant did not plead when same was founded, not to talk of proving the particulars of the intervening owners through whom the disputed land passed up to him. See ANYAFULU VS. MEKA (SUPRA). This failure is very fatal to the case of the Appellant. See ELEGUSHI V. OSENI (2005) 23 NSCQR 193 AT: 710 E – G The submission of the Appellant that civil cases are proved on preponderance of evidence, and that his pleadings were not challenged, and the Court is bound to act on same and grant his claim is highly misplaced. This is because the law relating to declaratory relief is as stated in the case of: OLUBODUN VS. LAWAL (2008) 17 NWLR (PT. 1115) P.1 AT 37B – D R. 12 where the Court held thus:
“A Court does not grant a declaration of right either in, default or admission without taking evidence and being satisfied that the evidence led is credible”.
Again, in the case of DANKULA VS. SHAGAMU (2008) All FWLR (PT.413) 128 AT 1309 H – B R. 8the Court held that:
“The burden of proof lies on the party who alleges the affirmative of a fact. In other words, it is the primary duty of the party who alleges or asserts a fact he relies on to prove it in order to succeed in the case. In the instant case, the onus is on the Appellant who asserts that an oral agreement to.
The law is that a party who claims title to land must plead and prove through cogent evidence, the nature of his title to the said land. But in this case, the Appellant failed to prove the acclaimed nature of his title to the disputed land. See ELERAN VS. ADERONPE (2008) 11 NWLR (PT.1097) P. 50 AT 74-75H-C R. 2.
On the strength of the above, counsel submitted that it is essentially impossible to determine the nature or type of title the Appellant is claiming, in respect of the disputed land. In other words, the Appellant has completely failed to plead and prove how the land devolved from Maruban Mashumbi to him i.e. either by inheritance, grant, purchase etc. And he did not plead and prove whether he has the right to inherit from or he is legal heir to the said Maruban Mashumbi. See SUNDAY UKWUESE VS GILBERT ATASIE (2000) 79 LRCN 1998 AT 2013.
It was submitted further in response to paragraphs 5.6, 5.7, 5.8, 5.9 and 5.10 that the Appellant having pleaded, but failed to prove traditional history with credible evidence, as his root of title, he cannot therefore abandon same, and resort back to acts of possession as his root of title to the disputed land. See EZE & 6 ORS VS ATASIE & 3 ORS (2000) 79 LRCN page 1993 at 2003 Ratio 6.
The Appellant did not only fail to prove any act of possession positive and numerous enough to warrant judgment in his favour, but he in particular, has the legal responsibility but has totally failed to discharge that responsibility when he neglected to plead and prove the description or identity and location of the disputed land he is claiming in this case. See ODUBOTE VS. OKAFOR (SUPRA) AT 433-434 G-A R.1.
On the issue of the Appellant’s legal responsibility to plead and prove the identity of the land. See OTANMA VS. YOUDUBAGHA (2006) All FWLR (PT.300) 1579 AT 1590 – 1591 G – B R. 1.
In the instant case, the Appellant pleaded Dangu as the location of the disputed land. See paragraph 3 of the amended statement of claim at page 121 of the record. However, in the respective statements on oath of the PW1, and PW2, the Appellant contradicted his pleadings when he again changed the location of the disputed land from “Dangu” to the “North of the road leading from Ardo Kola to Dangu Village”. See paragraphs 6 and 3 of the respective statements on oath of the PW1, and PW2 respectively on pages 128 and 131 of the records. See also the evidence of the PW2, under his cross-examination on page 43 lines 18-19 of the records when he contradicted his statement on oath and the amended statement of claim by saying:
“If somebody would come to say that the land in dispute is not situate at Sorkin Dutse that person is lying.”
It is submitted that the same land can neither be said to be located at “Dangu” nor “Sarkin Dutse” or at the same time be claimed to be at the “North of the road leading from Ardo Kola to Dangu”.
The law is trite that facts pleaded, but not supported by evidence go to no issue. In this case, the Appellant pleaded the description of the land in paragraph 7, of his amended statement of claim. See page 122 of the records. However, in the entire statements on oath of the PW1, and PW2, there is no single evidence to support the pleadings of the Appellant as to the description of the said land. And upon cross-examination on page 43 lines 24-25 of the record, the PW2 has this to say:
“Yes, the description of the land in dispute I gave if somebody would come and say differently that person most (must) people (be) lying.”
See UDO VS. EFFIOM (2008) All FWLR (PT. 414) P.1559 At. 1581 R.7
On the strength of the above, counsel urged the Court to so hold that since there is failure in proving the location of the land, and sharp contradiction as to the location and description of the disputed land, the trial Court and this Court cannot act on or ignore such self-contradictions and proceed to declare title to a land the Appellant himself does not know. See OPARAUGO VS OPARAUGO (2008) 5 NWLR (PT. 1081) P. 574 AT 595G R. 15. In particular response to paragraph 4.8 of the Appellant’s brief of argument, counsel submitted that the evidence for the Appellant on the issue of boundary or description of the land he claims, are not only at variance with his pleadings, but the PW2, contradicted himself on this very important issue. See OTANMA VS. YOUDUBAGHA (SUPRA) 1599B-C R.6 .
The legal effect of failure to prove the identity of land is therefore as stated in the case of OTANMA VS. YOUDUBAGHA (SUPRA) AT 1598 E-F R.2.
In particular response to paragraphs 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 and 4.12, learned counsel submitted that the pleadings of the Appellant in this case are not only far below the standard required in law of a plaintiff in a declaration of title to land but the relevant parts of same have been totally discredited/demolished under cross-examination by the respondents. After all, the law is trite that evidence that is not reliable, credible, sufficient etc does not need rebuttal. See FANNAMI VS. BUKAR (2004) All FWLR (PT. 19B) 1210 AT 1260-1261 H-B & F-B R.1B.
Learned counsel reiterated the fact that, it is a misconception when the Appellant submitted in his brief of argument and overemphasized that the failure of the Respondents to file defence or call evidence, in this case, makes the case of the Appellant unchallenged and subject to succeed. See AGBAJE VS FASHOLA (2008) 6 NWLR (PT. 1082) 90 AT 133-134; C.P.C. VS INEC (2011) 18 NWLR (PT. 1279) 493 AT 460.
It was submitted by counsel that this appeal by the Appellant has no merit. The Appellant has no legally acceptable evidence before the Court, and assuming without conceding he has it, same is not sufficient to sustain a claim for declaration of title to land. Therefore the Respondents do not need to have filed any statement of defence in this case, and the trial Court was right to have dismissed the claim of the Appellant for lacking in merit. He urged this Court to dismiss the appeal. and affirm the decision of the trial Court and make an order as to substantial cost.
RESOLUTION
It is a long-settled principle of land law, that in an action for declaration of title to land, the onus lies on the party claiming title to satisfy the Court, that he is entitled on evidence adduced by him to declaration of the piece of land claimed. That is to say, it is the duty of the party who seeks a declaration of title to land to establish and prove his claim by credible evidence. The onus, therefore, lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. He must of necessity rely on the strength of his own case and not on the weakness of the defendant’s case. See EZULUMERI OHIAERI & ANOR. VS. ADINNU AKABEZE & ORS. (1992) 2 SCNJ 76; OWHONDA VS. EKPECHI (2003) 17 NWLR (PT. 849) 326; ELEMA VS. AKENZUA (2000) 6 SCNJ 226; YUSUF VS. ADEGOKE & ANOR. (2007) 4 SCNJ 77.
Also of paramount importance is the proof of the identity of the land for which a declaration is sought. Therefore in a claim for declaration of title to land, the first and foremost duty on the claimant is to describe the land in dispute with such reasonable degree of certainty and precision that its identity will no longer be in doubt. In other words, the land must be identified positively and without any ambiguity. Thus the mere mention of the name of the land in dispute without stating clearly the area of land to which the claim relates is not enough description. Consequently, the failure of a plaintiff to identify or ascertain the land in dispute, its dimension and locality will result in the dismissal of the suit. An order for declaration of title to land being discretionary cannot be made by any Court when the identity of the land in dispute is not clearly and unambiguously established. Therefore, no Court will grant a decree of declaration of title to land or a decree of entitlement to a right of occupancy, or even to an injunction over a piece of land whose identity or certainty is not precise and clear. Simply put, once the identity of the land over which declaration is sought is not clear, the case of the plaintiff is doomed to fail. See BENEDICT OTANMA VS. KINGDOM YOUDUBAGHA (2006) 1 SCNJ 94; IJAMA OTIKA ODICHE VS. OGALI CHIBOGWU (1994) 7 – 8 SCNJ (PT. 11) 317; MIDFORD EDOSOMWAN VS. KENNETH I. OGBEYFUN (1996) 4 SCNJ 21.”
Where a party makes a claim on land, that land must be identified positively and without ambiguity. The land must be so described that the Court will be certain, and a surveyor would have no problem identifying its coordinate movements. It is therefore basic that where a plaintiff claims a declaration of title to land, and fails to give the exact extent and identity of the land in dispute, his action is bound to fail because the issue of identity of the land is a sine qua non to the success of such claim. See IYAMA OTIKA ODICHE VS. OGALI CHIBOGWU supra and IORDYE VS. IHYAMBE (2000) 12 SCNJ 117; JOSEPH OLUSANMI VS. HENRY OSHASONA (1992) 6 SCNJ 287. On the Appellant’s failure to show correctly the identity of the land in his evidence, the learned trial Judge held in the judgment at page 175 to 176 of the record as follows: ” The plaintiff by his said pleadings and evidence could not state the names and particulars of successive owners through whom he claims the land in dispute on behalf of the family of Dangu. The traditional history of the land as claimed by the plaintiff in the said paragraphs 3, 4, and 5 of his pleadings and evidence does not apparently meet the requirement of proof by traditional evidence for declaration of title as per the reliefs sought in the statement of claim. It is however trite that where a claimant relies on traditional evidence and fails to establish his root of title his claim for declaration based on such traditional history will fail. See Owoeye v Oyinlola (2012) 15 NWLR (Pt 1322) 84 at 89 ratios 2,3, and 4. It is the view of this Court that the evidence of the PW1 and PW2 both in chief and under cross-examination does not make the plaintiff to discharge his legal burden of proof of traditional title over the land in dispute, that could call for any defence on the part of the defendants. I therefore on that note agree with the defendants’ learned counsel’s submission in page 5 of the defendants’ joint written final address that a calm perusal of the entire statement of claim of the plaintiff particularly paragraphs 1-10 would irrefutably show that the plaintiff woefully failed to plead the particulars of the intervening owners through whom he claims title to the land. That in fact, nowhere in his statement of claim did the plaintiff plead what happened to Maraban Mashumbi (the person whom he claims to be the founder of the land in dispute).” That if Maruban Mashumbi died, when did he die, the name and identity of the persons who inherited the land from Maruban Mashumbi and when they inherited same and finally when and how the plaintiff inherited same.
Be that as it may, the case of the plaintiff in this matter as submitted by the defendants’ learned counsel has been successfully challenged, contradicted, controverted and punctured by the defendants under cross-examination. Thus rendering same incredible and bereft of probative and legal value and l so hold.
It is clear that the plaintiff, in this case, is relying on traditional evidence to claim over the land in dispute, in that PW1, pleaded in his evidence in chief under oath to wit:-
Paragraph 3:
“That sometimes long ago, my uncle Maruban Mashumbi went and founded, deforested and settled on the parcel of land and named it after our family name Dangu and the place is called Dangu.”
Paragraph 4:
“That Maruban Mashumbi being the first settler took possession of the surrounding lands and was farming on it without any disturbance from anybody and there was nobody close to the said land.
Paragraph 5
“That Maruban Mashumbi settled on the land in dispute with his younger brothers namely (a) Zodi Mashumbi (b) Sanya Mashumbi (c) Gasa Mashumbi (d) Maashowase Mashumbi (e) Gaga Mashumbi (f) Maazan Mashumbi and (g) Mado Mashumbi who all died and left behind Maruban Mashumbi and their children on the said land.”
Assuming the plaintiff acquired the land in dispute by legitimate means he has been unable to ascertain specifically where the land is, and his title to same. I cannot give the plaintiff the whole world I can only give him that which he asks for and that thing must be specific, and with land, it has to be ascertainable. PW2, in cross-examination, stated that the land in dispute is situate at Sarki Dutse village and that any person who comes to this Court to say that the land is in a village other than Sarkin Dutse village such person would be lying.
Learned counsel for the Appellant had argued that the identity of the land was never in issue because the land is known to the parties as shown in their pleadings and evidence. I have read through the pleadings and evidence of the parties and I fail to extract where it was so shown that the identity of the land was known to the Respondents.
However as earlier addressed in this judgment, where a claim is for ownership of land, the plaintiff must prove the identity of the land in dispute, failing which his claim must collapse, because the issue of identity of land is germane and paramount in such claim and as such must be ascertained with certainty. See PETER OKONKWO VS. BERNARD & ORS. supra; CHIEF D.M. OKOCHI & ORS. VS. CHIEF A. ANIMKWOI & ORS. (2003) 6 SCM 113.
Furthermore, for a claim for trespass and injunction to succeed, it must be tied to an identified or ascertained area and such claim must be refused if the area to which it relates is vague or uncertain. See UGBO VS. ABURIME (1994) 9 SCNJ 23 and NWOKIDU VS. OKANU (2010) 1 SC (PT. 1) 136. As rightly held by the learned trial Judge, the Appellant herein failed entirely to properly identify the land in dispute and this renders his claim impossible to grant.
The judgment of the learned trial Judge is the correct position of the law, therefore l shall not disturb the well reasoned judgment.
This appeal is unmeritorious consequently I dismiss it. I assess costs at N50,000 in favour of the Respondent.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance, the lead judgment just delivered by my learned brother FATIMA OMORO AKINBAMI, JCA. My learned brother has exhaustively dealt with the issues contained in the lead judgment. I agree that the appeal is unmeritorious and should be dismissed. I also dismiss the appeal with nothing further to add.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege to read the draft of the leading judgment just delivered by my learned brother, FATIMA OMORO AKINBAMI, JCA.
I agree with his conclusion and reasons in dismissing this appeal
I have nothing to add
Appearances:
I. A. JALO, ESQ. For Appellant(s)
B. VAATSAV, ESQ. For Respondent(s)