FAAN v. AHMED & ANOR (2022)

FAAN v. AHMED & ANOR

(2022)LCN/16544(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, April 28, 2022

CA/K/282/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

BitrusGyarazama Sanga Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FEDERAL AIRPORT AUTHORITY OF NIGERIA (FAAN) APPELANT(S)

And

1. ALHAJI ABDULLAHI AHMED 2. MR USMAN RINGIM RESPONDENT(S)

RATIO:

THE INTERFERENCE WITH THE EXERCISE OF DISCRETION BY THE TRIAL COURT

It is clearly at the discretion of the learned trial judge to determine whether in the light of the evidence before him, there is need to resolve, by a visit to the locus in quo, the conflict of evidence or clear a doubt as to the accuracy of a piece of evidence when there is such conflict of evidence. Even then, it is well established that an appellate Court will not in principle, interfere with the exercise of discretion by the trial Court unless that discretion is shown to have been exercised upon wrong principles or that the exercise was tainted with some illegality or substantial irregularity. See the cases of ANYAH VS. A. N. N. LTD (1992) 6 NWLR (PT. 247) 319 and UNITED SPINNERS (NIG.) LTD VS. CHARTERED BANK LTD(2001) 14 NWLR (PT. 732) 195. MOHAMMED BABA IDRIS, J.C.A.

IT WILL BE UNNECESSARY TO CONSIDER ACTS OF OWNERSHIP WHERE THE PLEADED TITLE TO LAND HAS NOT BEEN PROVED

It is important to state here that having already found somewhere in this judgment that the Appellant has failed to prove his title to the land in dispute when the burden to prove same placed on the 1st Respondent shifted to him, he cannot rely on acts of ownership and possession to prove the same title to the land claimed and it is trite that where the pleaded title to land has not been proved as in this case by the Appellant, it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass. See the case of FASORO VS. BEYIOKU (1988) 2 NWLR (PT. 76) 263 AT 271. MOHAMMED BABA IDRIS, J.C.A.

THE FUNCTION OF THE EVALUTION OF EVIDENCE IS ESSENTIALLY THAT OF THE TRIAL COURT

In the final analysis, it is a long established fact that the function of the evaluation of evidence is essentially that of the trial Court. See the cases of IGAGO VS. STATE (1999) LPELR – 1442 (SC) 27 and ONUOHA VS. THE STATE (1998) 5 NWLR (PT. 548) 118. Where the trial Court has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an appellate Court to interfere and to substitute its own views for the view of the trial Court and this is wholly my take on the case before me. This Court therefore sees no reason to disturb the decision of the trial Court in view of my findings with regard to the case before me and I therefore uphold same. In the circumstances, it is my considered view that this appeal is unmeritorious and it is hereby dismissed. I make no further orders as to cost. MOHAMMED BABA IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated the 17th day of September, 2012 and filed on the same date which was amended and filed on the 10th day of March, 2014, the 1st Respondent as Plaintiff at the lower Court claimed against the Appellant and 2nd Respondent as Defendants jointly and severally as follows:
1. A Declaration of title to all that piece or parcel of land situate, lying and being at Ifira Village New Airport Kaduna in Ifaka District of Igabi Local Government, Kaduna State, Measuring 0.325 Hac X (0.80 Acres) as shown in the sketch plan and covered by Certificate of Occupancy No GBLG ‘A’ 0586.
2. A Declaration that by virtue of the sales agreement dated 30th June, 2008, the Plaintiff is entitled to customary and/or Statutory Right of Occupancy in respect of the said piece or parcel of land.
3. A Declaration that the Defendants entry upon the said Plaintiff’s piece or parcel of land without the consent or permission of the Plaintiff amounted to trespass.
4. An Order of perpetual injunction restraining the defendants either by themselves, their servants, agents or any other persons claiming through or under them or whomsoever from entering, re-entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession, use and occupation of the land or any part thereof in derogation of the Plaintiff’s vested rights or interests therein.
5. Twenty Million Naira only (20,000.000.00) being general damages for trespass committed and being committed by the Defendants, their servants and/or agents on the said land.

It is the claim of the 1st Respondent at the trial Court that he is the owner of all that piece or parcel of land situate, lying and being at Ifira Village New Airport, Kaduna in Ifaka District of Igabi Local Government, Kaduna State, measuring 0.325 Hac X (0.80Acres) as shown in the sketch plan and covered by Certificate of Occupancy No GBLG “A‟ 0586, and that he bought the said piece or parcel of land from one Alhaji Dan Gude, Mallam Samaila, Mallam Abdulkadiri, Mallam Ado, Mallam Shago, Mallam Kari, Malama Taraba, Malama Salamatu, Malama Delu, Malama Yar Mallam and Malama Murja who inherited the said property from their deceased father, Mallam Danmori Majidadi who died sometimes in 1992 and buried in accordance with Islamic injunction as they are all Muslims.

It is the claim of the 1st Respondent that he bought the said land for the sum of N1,500,000:00 sometime in June 2008 and that upon the purchase of the said property, a sales agreement was prepared and signed by all the parties in the presence of Alhaji Shehu Ahmed Iya, Alhaji Dan Gude and his ten brothers and sisters, Alhaji GarbaIsah, SarkinIfira who all witnessed the handover of the land to the 1st Respondent.

It is the claim of the 1st Respondent that Alhaji Dan Gude’s late father had been in possession of the said plot of land until his death and thereafter his children had been exercising acts of ownership over the same plot of land which acts includes farming, cutting of weeds etc and it was based on this ownership that they sold it to the 1st Respondent.

The 1st Respondent also claims that after he purchased the said land in 2008, he had since exercised acts of possession such as cutting of weeds, farming and making arrangements to put a structure on the land. It was also claimed that he applied to the Igabi Local Government Area of Kaduna State for the Customary Right of Occupancy over the said land and same was given to him, vide the Kaduna State Local Government Certificate of Occupancy No. GBLG “A‟ 0586 dated 19th August, 2008 and since then no adverse claimant has come to dispute the property from him until 12th August, 2011 when the 2nd Respondent illegally and unlawfully trespassed on the said land.

The 1st Respondent also claims that he reported the matter to Alhaji Garba Isah, the District Head of Ifira Village where the land is situate and that he summoned the parties for a meeting where he confirmed to the hearing of the 2nd Respondent and other people present that the said land in dispute belongs to the 1st Respondent and does not in any way belong to the Appellant as purportedly claimed by the 2nd Respondent which he could not produce any document in support of the claim as the land acquired by the Federal Government for the Appellant from the owners had been fenced and does not form part of the disputed land.

The 1st Respondent also claims that when the Appellant and 2nd Respondent failed to desist from their illegal claim of the disputed property, the 1st Respondent wrote a letter to the managing director of the Appellant and copied the 2nd Respondent, Chairman Board of Directors of the Appellant and Company Secretary/Legal Adviser of the Appellant.

The 1st Respondent also claims that upon the request of the Appellant and 2nd Respondent, he sent the Original Survey Plan UTM coordinate of the land and that the Appellant and 2nd Respondent sent one of its staff to conduct the measurement of the land in dispute and it was clear that the land in dispute does not belong to them so the staff went back to Lagos and promised to get back to the 1st Respondent’s Counsel and after then the Appellant and 2nd Respondent through its legal department discussed with the 1st Respondent and his Counsel on an out of Court settlement but yet they failed to do anything about the matter but continued to trespass on the land.

The 1st Respondent opened his case on the 7th day of December, 2016 calling the following witnesses:
PW1 – Alhaji Abdullahi Ahmed (Appellant)
PW2 – Shehu Ahmed (Appellant’s brother)
PW3 – Alhaji Dangude (one of the Vendors)

The following documents were tendered, admitted and marked as Exhibits thus:
EXHIBIT P1 – Sales agreement
EXHIBIT P2 – Certificate of Occupancy dated 19th of August, 2008
EXHIBIT P3 – Letter dated 13th September, 2011.
EXHIBIT P4 – Reply to Exhibit P3.
EXHIBIT P5, P5A and P5B – Reply to Exhibit P4 wherein the 1st Respondent Counsel forwarded the sketch plan and UTM Coordinate.

The 1st Respondent closed his case on the 27th of February, 2018 and the matter was adjourned for defence. The Appellant and 2nd Respondent opened their cases on the 5th of June, 2018 and called witnesses thus:
DW1 – Garba Uaman Rigim (2nd Respondent)
DW2 – Leo Bala Ali Nuck

The following document were tendered and it was admitted in evidence and marked as Exhibit DW1 – Survey Plan.

The Appellant and 2nd Respondent closed their case on the 13th day of May, 2019 and there was a visit by the Court to the locus in quo on the 25th day of November, 2011 and the matter was subsequently adjourned for addresses.

The parties therein, filed and exchanged their respective written addresses which were adopted on the 12th day of February, 2020 and the matter was then adjourned to the 27th day of April, 2020 for judgment.

The parties however, re-adopted their written addresses on the 5th day of October, 2020 in view of the lockdown and constitutional provisions and the Court gave its judgment.

The Honourable trial Judge, Honourable Justice Hannatu A. L. Balogun after considering the evidence and addresses of parties, gave judgment in the Suit No: KDH/KAD/880/2013 on the 5th day of October, 2020 in favour of the 1st Respondent herein.

Dissatisfied with the said judgment of the trial Court, the Appellant filed a Notice of Appeal dated the 2nd day of November, 2020 comprising of 9 (Nine) Grounds of Appeal. The parties herein filed and exchanged their respective Briefs of Argument.

The Appellant‟s Brief of Argument was filed on the 6th day of January, 2021 and same was settled by its Counsel, Mutiu O. Akinsanya Esq., wherein 4 (four) issues were distilled for determination as follows:
1. Whether the trial Court was right when it held that the 1st Respondent discharged the burden of proof placed on him and the same has therefore shifted to the Appellant. (Grounds one, three, four, five and six)
2. Whether the learned trial Court was right when it held that the 1st Respondent has customary title and/or traditional ownership of the said land in dispute even though the reliefs of the 1st Respondent were not for declaration of his customary or traditional title to land. (Grounds two and nine)
3. Whether the trial Court was right when it held that the land in dispute belongs to the 1st Respondent and that the Appellant trespassed on the land even though ample evidence showed that the Appellant had been in exclusive and undisturbed possession of the said land. (Ground seven)
4. Whether the trial Court was right when he awarded the sum of Fifty Thousand Naira (N50,000.00) as cost of filing against the Appellant. (Ground Eight)

On the other hand, the 1st Respondent filed his brief of argument on the 20th day of October, 2021 and the said brief was settled by his Counsel Abiodun F. Olasupo Esq., wherein he adopted the issues formulated by the Appellant with little variations as follows:
1. Whether from the totality of evidence before the trial Court, whether the trial Court was right when it held that the 1st Respondent discharged the burden of proof placed on him and same has therefore shifted to the Appellant.
2. Whether the learned trial Court was right when it held that the 1st Respondent has customary title and/or traditional ownership of the said land in dispute when one of the reliefs of the 1st Respondent is clearly rooted on the declaration for customary title to the land.
3. Whether the learned trial Court was right when it held that the land in dispute belongs to the 1st Respondent and that the Appellant trespassed on the land.
4. Whether the trial Court was right when he awarded damages and cost to the 1st Respondent.

The Appellant also filed a reply brief of argument on the 6th day of November, 2021 and same was settled by its Counsel Mutiu O. Akinsanya, Esq., in response to the arguments of the 1st Respondent’s Counsel contained in the 1st Respondent’s Brief of Argument.

On issue one, the Appellant’s Counsel argued that the 1st Respondent’s claim as per his pleadings is predicated on purchase under the customary law and that the law is clear that to constitute a valid sale of land under customary law, the purchaser must be let into possession of the land by the vendor in the presence of witnesses and therefore it is necessary to call those witnesses when there is a dispute. On this point, counsel cited the case of AGBOOLA VS. UNITED BANK FOR AFRICA PLC & 2 ORS (2011) LPELR – 9353 (SC). The Appellant’s Counsel argued that in this case, only the 1st vendor was called to give evidence in the matter and also, that Exhibit P1 shows that only one witness witnessed the sale and although he was called as a witness, no concrete evidence was given by him to show that the 1st Respondent was let into possession by the sellers and that the 1st Respondent carried out acts of possession and thus urged the Court to expunge the evidence of PW3 as it contradicts that as contained in Exhibit P1.

The Appellant’s Counsel also submitted that the entire gamut of testimonies supplied to the trial Court by PW1, PW2 and PW3 does not lend credence to the 1st Respondent being let into possession by the sellers. It was further argued that from the entire gamut of facts put before the trial Court, the possession of the property inured in favour of the Appellant and every presumption appears in its favour.

The Appellant’s Counsel also argued that the 1st Respondent never pleaded customary law but only brought it up for the first time in his evidence when PW3 was being cross-examined and thus the trial Court was wrong to have held onto the assumption that the land was lent to the Appellant. It was further submitted that PW3 testified that the land belonged to his father but the witness failed woefully to show how the land belonged to him. On this point, counsel cited the case of FABOLUDE VS. SOBOWALE ANIMASHAUN FARMS LTD (2018) LPELR – 43878 (CA).

In conclusion, the Appellant’s Counsel argued that assuming without conceding that the burden of proof indeed shifted to the Appellant, the Appellant has sufficiently proved its possession and ownership of the land in two different ways recognized by law, to wit: by various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership and by acts of long possession and enjoyment of the land and thus urged the Court to hold that the 1st Respondent never discharged the burden of proof placed on it and never rebutted the presumption of long possession which inured in favour of the Appellant.

On issue two, the Appellant’s Counsel argued that it is trite that parties are bound by their pleadings and thus it is not the duty of the Court to by examination of the evidence speculate what the nature of a claim is and then proceed to make a declaration which the plaintiff has not sought for, and that a look at the amended writ of summons and statement of claim filed by the 1st Respondent shows that the reliefs are not hinged on customary title but statutory title and thus it was wrong for the trial Court to formulate reliefs for the 1st Respondent and hold as it did that the 1st Respondent’s case was not predicated on Exhibit P2 but on customary title.

The Appellant’s Counsel further submitted that in creating another case for the 1st Respondent, the Court in its judgment disputed that the land is in an urban area when the 1st Respondent acknowledged that the land is in an urban area which admission cannot be jettisoned by the Court. On this point, counsel cited the case of NARINDEX TRUST LTD VS. N.I.C.M.B. LTD (2001) FWLR 1546 AT 1558. Counsel further argued that the 1st Respondent on the 12th day of February, 2020 when parties adopted their respective final addresses, adumbrated before the trial Court and submitted that the 1st Respondent have proved its claim placing reliance on Exhibit P2 and thus urged this Court to hold that the trial Court exceeded its powers by making out a different case for the 1st Respondent completely different from the one the 1st Respondent made for himself.

On issue three, the Appellant’s Counsel argued that trespass is only actionable at the suit or instance of the person in possession of the land. On this point, counsel cited the case of ECHERE VS. EZIRIKE (2006) 5 SC (PT. 1) 65 AT 72 and that the Appellant made ample submission on the findings of the trial Court based on its pleadings and evidence including findings made at the visit to the locus in quo that facts pointed that the Appellant was in possession of the land but the Respondent gave evidence that he went in to cut down trees when he was challenged by the Appellant and that the trial Court lost the essence of visit to locus in quo when he entirely believed the PW3 in his evidence made at the locus in quo.

The Appellant’s Counsel also argued that the law is well settled that where someone in possession is alleged to be a trespasser, the onus is on the person so alleged to show that his better right to possession has been disturbed by the trespasser. On this point, counsel cited the case of ADEGBITE VS. OGUNFAOLU & ANOR (1990) LPELR – 93 (SC).

On issue four, the Appellant’s Counsel argued that the request for cost was made after the judgment was read out and delivered and the Appellant was not afforded the opportunity to respond to and or defend the application for cost which is no doubt a denial of fair hearing. Counsel further argued that there was no reason, event or justification that led to the award of N50, 000 costs after the judgment has been delivered and general damages awarded in cost. On this point, counsel cited the case of GUINESS NIGERIA PLC VS. EMMANUEL NWOKE (2000) LPELR – 6845 (CA) and further argued that it is unethical and an affront of public policy to pass unto another party the cost of litigation as the trial Court did. Counsel then urged the Court to allow the appeal and set aside the judgment of the trial Court on the strength of the arguments submitted.

In response to the argument of the Appellant’s Counsel on issue one, the 1st Respondent’s Counsel submitted that the 1st Respondent who testified as PW1 gave credible evidence in proof of his title to the property vide Exhibit P1 and called PW3 who sold the property to him to confirm the sales and he identified Exhibit P1.

The 1st Respondent also argued that PW3 gave cogent evidence that the said land was inherited by their late father Mallam Danmori Majidadi and that the 1st Respondent also in his relief and statement of claim stated that the sales of the land in dispute is sales under customary law and that the amended statement of claim and writ of summons and written deposition clearly shows that the 1st Respondent pleaded the names of those witnesses who witnessed the actual delivery of the land to him and thus has satisfied all the requirements in the case of ADEDEJI VS. OLOSO (2007) VOL. 3 MJSC P56 AT 76 PARAS D – E.

The 1st Respondent’s Counsel argued that the argument of the Appellant’s Counsel that it is necessary to call all those that witnessed the sale is misconceived as it is the quality of and not quantity of evidence that matters. On this point, counsel cited the case of OMONUA VS. OKPERE (1991) 5 NWLR (PT. 189) PAGE 36 RATIO 3 AT P. 50 PARA F. The 1st Respondent’s Counsel also argued that the PW3 did not give any contradictory evidence but in line with the pleadings neither was there any material contradiction in the evidence of PW3. On this point, counsel cited the case of LAWSON VS. AFANI CONT. CO. LTD (2002) 2 NWLR (PT. 752) PAGE 585 RATIO 22.

The 1st Respondent’s Counsel also argued that the visit of the learned trial judge to the locus in quo further confirmed the title of the 1st Respondent as he observed that there was no signboard of the Appellant signifying the disputed land belonged to the Appellant. The PW1 identified the land sold to him and PW3 confirmed the said land and even though the DW2 told the Court that the Appellant built a structure on the disputed land there were no traces of any structure on the disputed land. It was further submitted that the Appellant failed woefully to give credible evidence to prove all their averments in the statement of defence as to exclusive possession and thus urged the Court to uphold the judgment of the Court below in respect of issue one.

On issue two, the 1st Respondent’s Counsel submitted that the amended writ of summons and statement of claim filed by the 1st Respondent clearly shows that the 1st Respondent claimed customary title to the land in dispute. It was further submitted that the 1st Respondent bought the land in dispute under customary law vide Exhibit P1 which is evidence of purchase price and PW1, PW2 and PW3 gave evidence of customary purchase and that the plaintiff need not plead specifically that he has legal or equitable estate before the Court can hold that such title vests in him as it is sufficient if he plead sufficient facts upon which such estate can be based. On this point, counsel cited the case of OBIJURU VS. OZIM (1985) 2 NWLR (PT. 6) 167 RATIO 6.

The 1st Respondent’s Counsel also submitted that the argument of the Appellant’s Counsel that the trial Court made a different case for the 1st Respondent is highly misconceived as there was no evidence before the trial Court that the place where the land is situated is in an urban area.

On issue three, the 1st Respondent submitted that the Appellant did not prove the evidence of possession or long possession. However, that the 1st Respondent proved credible evidence of title and long possession of the land as it is in evidence that the PW3 and his siblings were in possession before the land was sold to the 1st Respondent on the 30th day of June, 2008 and the 1st Respondent equally took possession of the land immediately same was sold to him and PW1, PW2 and PW3 equally gave evidence that nobody had ever disturbed or challenged the 1st Respondent until 12th August, 2011 and that the evidence of DW1 and DW2 does not in any way support their title as same is rooted in hearsay evidence and it is the law that where two persons make conflicting claims to possession of land, the law ascribe possession to the persons that can prove better title to the land. On this point, counsel relied on the case of OGBU VS. ANI (1994) 7 NWLR (PT. 355) P. 84.

On issue four, the 1st Respondent’s Counsel argued that an award of any sum by a Court as general damages and cost is an exercise of judicial discretion and it is not the practice of the reviewing Court such as this Court to substitute its own view regarding how the discretion ought to have been exercised by the trial Court. On this point, counsel relied on the case of 7UP BOTTLING CO. LTD VS. ABIOLA & SONS LTD (1989) 4 NWLR (PT. 114) PG 229/247. It was further argued that the Appellant has been unable to pinpoint any act of the learned trial judge that smacked of arbitrariness or injudiciousness.

The 1st Respondent Counsel further submitted that the 1st Respondent did not claim any special damages that needed to be pleaded and proved strictly for the Appellant to join issue and thus based on a calm and dispassionate review of the totality of the evidence, the trial Court was justified in law in granting the sum of N50, 000 as cost.

The Appellant’s Counsel in his reply to the arguments contained in the 1st Respondent’s Brief of Argument argued that the 1st Respondent in an attempt to turn his brief into pleadings stated that the PW3 was a representative of the family which was not the case of the 1stRespondent at the trial Court rather from Exhibit P1, PW3 alongside others were vendors. On this point, reference was made to the case of EKE VS. MIL. ADMIN., IMO STATE (2007) ALL FWLR (PT. 381) 172 AT 1741, PARAS D – E (CA).

The learned Appellant’s Counsel also submitted that the 1st Respondent has refused to mention the names of the witnesses but further contends that it is untenable in law to suggest that where there is a dispute in respect of customary law, it is necessary to call witnesses to the vendor which must be two and above and thus the 1st Respondent’s contention is being opposed by the case of OBIJURU VS. OZIM (1985) LPELR – 2173 (SC).

RESOLUTION OF ISSUES
Having summarized the arguments of the parties herein as contained in their respective Briefs of Argument, I shall now proceed to consider the issues submitted by the parties herein and in doing so, I will adopt the issues for determination raised by the Appellant herein. The issues again are reproduced hereunder as follows:
1. Whether the trial Court was right when it held that the 1st Respondent discharged the burden of proof placed on him and the same has therefore shifted to the Appellant.
2. Whether the learned trial Court was right when it held that the 1st Respondent has customary title and/or traditional ownership of the said land in dispute even though the reliefs of the 1st Respondent were not for declaration of his customary or traditional title to land.
3. Whether the trial Court was right when it held that the land in dispute belongs to the 1st Respondent and that the Appellant trespassed on the land even though ample evidence showed that the Appellant had been in exclusive and undisturbed possession of the said land.
4. Whether the trial Court was right when he awarded the sum of Fifty Thousand Naira (N50,000.00) as cost of filing against the Appellant.

ISSUE ONE
Whether the trial Court was right when it held that the 1st Respondent discharged the burden of proof placed on him and the same has therefore shifted to the Appellant.

On this issue, the arguments of the Appellant can be brought out in the following points:
a. What constitutes a valid sale of land under customary law?
b. Was there an exercise of any act of possession by either party in this case?

c. Was the title of the vendor and his ancestors proved?
d. Where does the burden of proof in a claim for title to land rest and did the burden shift at any point?

From the Amended Writ of Summons, it is clear that the 1st Respondent’s claim was one of claim of title under customary law. See relief (b) sought by the 1st Respondent at the trial Court and paragraphs 4 – 12 of the statement of claim.

It is trite law that for a sale of land under native or customary law to be valid, the following requirements must be met: –
1. There must be payment of money or agreed consideration.
2. The transaction must be witnessed by witnesses.
3. The actual handing over of the land must be done in the presence of the same witnesses.
See the cases of ADEDEJI VS. OLOSO [2007] SCNJ 411, FOLARIN VS. DUROJAIYE (1988) 1 NWLR (PT. 70) 351 and COLE VS. FOLAMI (1956) 1 FSC 66 AT 69.
There is the requirement that the names of such witnesses and the facts of their having witnessed the sale transaction and the handing over of the land to the purchaser must be pleaded and evidence adduced thereon. See also, the cases of FOLARIN VS. DUROJAIYE (1988) 1 NWLR (PT. 70) 357, IGBOKWE VS. NLEMCHI (1996) 2 NWLR (PT. 429) 185, OGUNBAMBI VS. ABOWAB 13 WACA 222, 225 and ODUSOGA & ANOR VS. RICKETTS (1997) 7 NWLR (PT. 511).

It is clear from paragraph 5 of the Amended Statement of claim that the 1st Respondent stated he bought the land in dispute from one Alhaji Dan Gude, Mallam Samaila, Mallam Abdulkadiri, Mallam Ado, Mallam Shago, Mallam Kari, Malama Taraba, MalamaSalamatu, MalamaDelu, MalamaYar Mallam and MalamaMurja who inherited the said property from their deceased father, Mallam DanmoriMajidadi and paid the sum of N1,500,000.00 for the said property, he also repeated same at paragraph 5 of his witness deposition and the sales agreement. Exhibit P1 also shows that he paid the said sum for the property. PW3 in his witness deposition also confirmed that the land in dispute belonged to his late father and that he and his ten brothers and sisters inherited the said land after the demise of their father sometimes in 1992 and they sold the land to the 1st Respondent. PW2 also gave evidence that the 1st Respondent bought the land in dispute from Alhaji Dan Gude and his ten brothers and sisters for the sum of N1, 500,000.00.

Also, from the record of Appeal, the 1st Respondent stated in his Amended statement of claim and witness deposition that the sales was concluded in the presence of Alhaji Shehu Ahmed Iya, Alhaji Dan Gude and his ten brothers and sisters, Alhaji GarbaIsah, SarkinIfira who all witnessed the sale and the handover of the property to the 1st Respondent. From Exhibit P1, it is clear that the sale was witnessed by Sahannun Mai, Ung. Gwa Za, Bawa, Shahannun SarkinIfira, Alhaji Garba Isah, Sahannun MaiGirma, HakiminAfaka and Shehu Ahmed Iya. Alhaji Shehu Ahmed Iya who is among the witnesses who signed the Exhibit P1, gave evidence in his witness deposition that he witnessed the delivery and handover of the land to the 1st Respondent. Alhaji Garba also in his witness deposition gave evidence that he is the district head and witnessed the sale of the land and delivery of the land to the 1st Respondent but he was not called as a witness in the case. Alhaji Shehu Ahmed was called as PW2 in the case and in his evidence made description that shows he knows the land that was handed over to the 1st Respondent and also gave evidence that the district head witnessed the sale and that he is supposed to be present at the sale because he is the ruler of the locality. It is also on record that before the 1st Respondent opened his case, the Counsel informed the Court that they had two witnesses in Court and they lost two. See page 381 of the Record of Appeal.

From the above, it is clear that the 1st Respondent paid the purchase price of N1, 500,000.00 and was let into possession by the vendors and in the presence of witnesses. This is clear from the evidence in Exhibit P1, the evidence of PW1 – PW3 and it is also clear from the 1st Respondent’s evidence that he bought the land from the PW3 and his 10 other siblings which evidence is confirmed by that of the PW2 and PW3 and Exhibit P1. On the issue of calling all the witnesses to the handover of property to the 1st Respondent, it is also clear that two of those witnesses died before trial and the available witness gave evidence that he witnessed the sale and handover of the property in question to the 1st Respondent. It is on this note that I have no doubt that the requirements of proof of a valid title to customary land were fulfilled by the 1st Respondent.

On the argument of whether there was an exercise of any act of possession by either party in this case, it is clear from the record of appeal and as contained in paragraph 6 of the amended statement of claim that the land was handed over to the 1st Respondent and in paragraph 11 of the amended statement of claim, it is stated that after the 1st Respondent purchased the land in 2008, he took effective possession of the land and has since 2008 exercised act of possession such as cutting of weeds, farming, and making arrangement to put a structure on the land. The 1st Respondent also maintained this statement in his witness deposition at paragraph 11. Even though it was clear that during the visit to the locus in quo by the trial Court it was discovered that no farming was taking place on the disputed land, the land of the Appellant was different from the disputed land. The 1st Respondent also took steps to getting Exhibit P2, the local government right of occupancy and it was when he wanted to develop the land and to cut the trees that he discovered that the Appellant had trespassed to the land, immediately wrote Exhibit P3 to the Appellant and the Appellant wrote Exhibit P4 to the 1st Respondent to provide a survey plan of the land in UTM coordinate system and in order to ascertain whether the land in question falls within the Appellant’s required land and ascertain the level of encroachment if any and it is clear from the record of appeal that there was no further response from the Appellant to the 1st Respondent. Also, from the visit to the locus in quo, it was again clear that the land was in no way connected to the Appellant’s property and it does not share a fence with their perimeter fence and there were many houses of the community between the land in issue and that of the 1st Defendant.

On the argument of whether the title of the vendor and his ancestors was proved, it is settled law that once a party pleads and traces the root of title to a particular person or family, he must establish how that person came to have title vested in him. He cannot ignore the proof of his overlord’s title and rely on long possession. See the case of MOGAJI VS. CADBURY (NIG) LTD (1985) 2 NWLR (PT. 7) 393 AT 395.The 1st Respondent in his amended statement of claim and witness deposition stated that he bought the property in dispute from one Alhaji Dan Gude, Mallam Samaila, Mallam Abdulkadiri, Mallam Ado, Mallam Shago, Mallam Kari, Malama Taraba, Malama Salamatu, Malama Delu, MalamaYar Mallam and Malama Murja who inherited the said property from their deceased father, Mallam Danmori Majidadi who died in 1992 in accordance with the Islamic injunction and that their father had been in effective possession until his death.

This evidence was confirmed by PW3 and it was also stated in Exhibit P1 how the land came about even during his evidence at the trial Court, and PW3 gave evidence that he and his siblings inherited the land from their father. It is thus clear that the 1st Respondent bought a land that was inherited by the vendors from their father who had lived there before 1992 when he died and without any adverse claims.

On the argument of where the burden of proof in a claim for title to land rest and whether the burden shifts at any point, it is trite that the burden of proof in a claim of title to land rests on the plaintiff and in this case, the Appellant. See Section 131(1) and (2) of the Evidence Act, 2011and following the said section, he who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist and when a person is bound to prove the existence of those facts, it is said the burden lies on him to prove same. However, once there is proof then the scale tilts towards the other party to disprove the facts claimed by the plaintiff.

From the above facts and findings of this Court, it is clear that the 1st Respondent being able to prove his claim to the land in dispute under customary law with regard to the requirements for the proof of such as from the above, the burden has shifted to the Appellant to prove otherwise. There is however nothing on the record of appeal showing that the Appellant proved a better title to the disputed land other than Exhibit D1 which does not even contain any date neither was there any concrete proof to show that the land in dispute was part of the land acquired by the Federal Government for the Appellant, how it was acquired and from whom it was acquired. I do not want to proceed further at this point to tamper with the evaluation of the evidence by the trial Court. It is therefore my opinion on this issue, that the trial Court was right when it held that the 1st Respondent discharged the burden of proof placed on him and the same has therefore shifted to the Appellant.

This issue is therefore resolved in favour of the 1st Respondent against the Appellant.

ISSUE TWO
Whether the learned trial Court was right when it held that the 1st Respondent has customary title and/or traditional ownership of the said land in dispute even though the reliefs of the 1st Respondent were not for declaration of his customary or traditional title to land.

Looking at the amended writ of summons and statement of claim contained in the Record of Appeal, it is clear that the 1st Respondent’s pleaded facts and claim is one of claim to customary title to the land in dispute. Nowhere did the 1st Respondent state therein that he relied solely on Exhibit P2 to prove his title. The 1st Respondent only mentioned steps he took when he was let into possession and one of the steps was his acquiring Exhibit P2 and thus upon acquiring Exhibit P2 now properly described the land as per Exhibit P2 and it is also important to state that the Court acts on the evidence before it to arrive at its conclusion and if the Court relied on all the evidence before it in arriving at its conclusion as I can see, even the said Exhibit P2 described the said issuance to be in relation to “land not in an urban area” and address of Counsel has no place in evidence. It is clear from the pleadings of the 1st Respondent that his claim is one of customary claim of title to the land in dispute and the Exhibit P2 issued by the local government, shows that the land in dispute falls under such. On the other hand, where the 1st Respondent laid before the Court evidence to substantiate his claim like I said, it then rests upon the Appellant to have disproved him and not just stating that the land does not fall under one for which the Local Government cannot issue Exhibit P2 without substantiating his claim with any evidence to the contrary and it is trite that pleadings not supported with evidence is deemed abandoned. See the case of KAYDEE VENTURES LTD VS. MINISTER, FCT (2010) 7 NWLR (PT. 1192) 171. It is thus my opinion that theargument of the Appellant on issue two is totally misconceived and it is my decision on this issue that the learned trial judge was right when it held that the 1st Respondent has customary title and/or traditional ownership of the said land in dispute even though the reliefs of the 1st Respondent were not for declaration of his customary or traditional title to land.

This issue is thus resolved against the Appellant in favour of the 1st Respondent.

ISSUE THREE
Whether the trial Court was right when it held that the land in dispute belongs to the 1st Respondent and that the Appellant trespassed on the land even though ample evidence showed that the Appellant had been in exclusive and undisturbed possession of the said land.

Having my findings on issue one in mind and the trial Court’s visit to the locus in quo, it is clear that the 1st Respondent proved title to the land in dispute as against the Appellant during the visit to the locus in quo as contained in page 413 of the Record of Appeal and which was applied for by the 1st Respondent and agreed to by the Appellant. See page 403 of the Record of Appeal. It is clear that the Court observed at page 413 of the record of Appeal thus:
“The 1st Defendant’s property on the left side of the road was clearly marked “FAAN Land”. Their properties were painted with a yellow and blue paint. The disputed property was not painted. It had obviously not been used for a long time.”
The Court also observed that:
“The land in dispute is not joined to the 1st Defendant’s fence.”

From my findings herein, and in view of the authorities cited here, it is clear that the Appellant at the trial Court made out no defence against the claim of the 1st Respondent, and I so hold. It is therefore my decision on this issue that the Court below was right when it held that the land in dispute belongs to the 1st Respondent and that the Appellant trespassed on the land.

This issue is therefore resolved in favour of the 1st Respondent against the Appellant.

ISSUE FOUR
Whether the trial Court was right when he awarded the sum of Fifty Thousand Naira (N50, 000.00) as cost of filing against the Appellant.

Before I proceed, it is important I resolve the argument of the Appellant’s Counsel as contained in paragraph 4.4.2 of the Appellant’s Brief of Argument, that the Appellant was not afforded an opportunity to respond and or defend the application for cost at the trial Court. It is clear from page 446 of the Record of Appeal that before the learned trial judge awarded cost of N50, 000 against the Appellant, both parties before the Court had the opportunity to address the Court thus:
“Olasupo Esq: We thank the Court for a well-considered judgment and ask for cost of N100,000.
Taguwai Esq: We appreciate the Court’s patience and time and wisdom. We concede to no cost.
Court: Having looked at the cost of filing and other receipts for filing processes, I award cost of N50, 000 to the Plaintiff.”

The above reproduced decision of the trial Court in my view was clearly given after hearing the parties addressed the Court, thus fair hearing was given by the trial Court to both parties and I so hold. Moving on and resolving the argument of the Appellant’s Counsel that there was no reason, event or justification that led to the award of fifty thousand naira costs after the judgment had been delivered and general damages awarded in cost, it should be noted here that usually costs follow events and are not awarded as a punitive means nor are they designed or meant to be a bonus to the successful party and although granted by way of an indemnity to a successful party, an unsuccessful party ought not to be indemnified for no good reason. See ADENAIYA VS. GOVERNOR IN COUNCIL, WESTERN REGION(1962) 1 SCNLR 442, REWANE VS. OKOTIE-EBOH (1960) I SCNLR 461 and U.B.N. LTD VS. NWAOKOLO(1998) 5 NWLR (PT. 100) 127. Cost can even be awarded as a consequential order to a final judgment and the cost awarded by the trial Court was a consequential order and it is trite that a Court can make consequential order even where it is not specifically claimed but appears incidentally necessary to protect established rights. See the case of AMAECHI VS. INEC & 2 ORS (2008) NSCQLR VOL. 33 PAGE 332.
Assessment of the amount allowed in terms of the award of costs is the responsibility of the Court who determines what reasonable costs in the circumstances are and when the Court in the exercise of its discretion orders the costs payable and does so without being capricious id est in the sense that it is ordered in honest exercise of his discretion, the Appellate Court has no business to interfere.
The trial Court awarded a cost of N50,000 to the Respondent and indeed, in my own assessment, the amount of costs awarded cannot be said to be exceptionally high or punitive as to hold that the Court’s discretion was not in the interest of justice to interfere with the award of costs made by the trial Court.
As with all exercise of discretion, an Appellate Court will not interfere with the exercise of discretion by a trial Court merely because it would have exercised its discretion differently if faced with the same set of facts.
The award of N50,000 cost to the Respondent is not punitive after all costs are awarded for the purpose of meeting the legitimate expenses of the successful party, either wholly or partially as the Court sees it. See the case of ADBUJI VS. LAYINKE & ANOR (2002) 98 LRCN 1139and C.C.B. NIG. PLC VS. OKPALA(1997)8 NWLR (PT. 518) 673. The award of N50, 000 as cost against the Appellant for his incompetent claim in favour of the Respondent is right in the eyes of the law. The Respondent need not file a counter-claim or specifically ask for it as it is purely under the discretion of the trial Court. I am of the belief that the learned trial judge has exercised that discretion rightly. Therefore, issue 4 is hereby resolved against the Appellant.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Mohammed Baba Idris, JCA. My learned brother has painstakingly dealt with the four (4) issues nominated for the determination of the appeal. I agree with the reasoning and conclusion reached by my learned brother in the appeal. In particular, I endorse the view expressed by learned brother that where the trial Court has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an appellate Court to interfere and substitute its own views for the view of the trial Court.

In the circumstances, I agree that the appeal lacks merit and ought to be dismissed.

BITRUS GYARAZAMA SANGA, J.C.A.: I read a draft of the judgment just delivered by my learned brother, M. B. Idris, JCA. I agree with the finding and conclusion by my brother in the lead judgment that this appeal is bereft of merit and the only option is to dismiss it. I also dismiss same and abide by the order as to cost.

Appearances:

M. Akinsanya, Esq. For Appellant(s)

A. F. Olasupo Esq for the 1st Respondent
A. F. Fashola Esq for the 2nd Respondent For Respondent(s)