GARBA v. BUKAR
(2021)LCN/14951(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Monday, January 25, 2021
CA/G/378/2018
RATIO
LAND LAW: PRIMARY DUTY OF A PLAINTIFF SEEKING A DECLARATION OF TITLE TO LAND
The primary duty placed on a Plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly the area of land to which his claim is related so that the land can be identified with certainty. See Idehen vs. Osemwenkhae (1997) 10 NWLR (Pt.525) page 358; Iordye vs. Ihyambe (2000) 12 SC (Pt.II) page 126; Gbadamosi vs. Dairo (2007) 3 NWLR (Pt.1021) page 282; Dada vs. Dosunmu (2006) 18 NWLR (Pt.1010) page 134.
In an action for declaration of title to land, the onus is on the Plaintiff to prove title to a defined area to which the declaration can be attached. Where the land being claimed is contained in a Survey Plan, it is the duty of the plaintiff to serve the plan on the defendant to enable him know the land being claimed against him. Such Survey plan must show clearly the dimension of the land, the boundaries and other features. PER NDUKWE-ANYANWU, J.C.A.
EVIDENCE: PRESUMPTION OF REGULARITY IN RELATION TO CERTIFIED COPIES
This Site Plan was not certified by any other person but the Deed Registrar who is the custodian of the original copy of this public document. As held by Rhodes-Vivour, JSC in Tabik Investment Ltd. vs. G.T.B. Plc (supra): “Certified copies are by statute deemed to be originals. Where there is no certification, the presumption of regularity will not be ascribed to it, so it ought to be certified in order that the Court is left with no alternative but to accept the authenticity of its content.”
See also Iteogu vs. LPDC (2009) LPELR-532; Araka vs. Egbue (2003) LPELR-523; In RE: Obadina Family vs. Ambrose Family (1969) LPELR-25544.
It is true that the identity of land is proved by a properly drawn Survey Plan. It is also true that a Survey Plan which is not countersigned by a Surveyor-General is inadmissible in evidence no matter how well and how properly drawn. See Lawson vs. Afani Cont. Co. Ltd. (2002) 2 NWLR (Pt.572) page 585. PER NDUKWE-ANYANWU, J.C.A.
EVIDENCE: DISTINCTION BETWEEN ADMISSIBILITY OF A DOCUMENT AND THE WEIGHT TO BE ATTACHED TO IT
The Courts had gone ahead to distinguish between admissibility of a document and the weight to be attached to it. A document may be admissible in law but when put through the crucible of evaluation and ascription of probative value thereto, it may be found to be a worthless document. See I.M.B. (Nig.) Ltd. vs. Dabiri (1998) 1 NWLR (Pt.533) page 284; Buraimoh vs. Karimu (1999) 9 NWLR (Pt.618) page 310. PER NDUKWE-ANYANWU, J.C.A.
MAXIM: DOCTRINE OF NEMO DAT QUOD NON HABET
The doctrine of nemo dat quod non habet is to the effect that a person cannot give what he does not have. Therefore, a vendor cannot subsequently sell land which he already sold to another person. See Adeagbo vs. Williams (1998) 2 NWLR (Pt.536) page 120; Yusuf vs. Mathew (1999) 13 NWLR (Pt.633) page 300; Adesanya vs. Aderonmu (2000) 6 SC (Pt.II) page 18; Elema vs. Akenzua (2000) 6 SC (Pt.III) page 26. PER NDUKWE-ANYANWU, J.C.A.
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
OBUTE GODWIN GARBA APPELANT(S)
And
ALHAJI USMAN BUKAR RESPONDENT(S)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Borno State delivered by Hon. Justice H.Y. Mshelia on the 28th June, 2018.
The Appellant as Claimant in the Court below filed a suit against the Respondent in his amended Statement of Claim:
“(a) A declaration that the Claimant is the rightful, beneficial and leasehold owner of property No. FMH&E 82A laying and situate at El-Kanemi Road, GRA, Maiduguri, Borno.
(b) A declaration that the act of the Defendant by entering and developing on the property mentioned above amounts to trespass.
(c) An order ejecting/removing the defendant and the structure erected by the Defendant, or his agents or any other person claiming through the defendant from the Claimant’s property at No. FMH&E 82A, El-Kanemi Road, GRA, Maiduguri forthwith.
(d) An order of perpetual injunction restraining the Defendant whether by himself, agents, privies, or assigns or any other person whosoever called or whatsoever described from claiming ownership of the land, the subject matter; of this suit.
(e) The sum of Five
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Hundred Thousand Naira (N500,000.00) damages for trespass against the Defendant.
(f) Cost of this suit.”
The Respondent as Defendant filed his amended Statement of Defence. The Appellant testified for himself and called no other witness. The Respondent called two witnesses.
The Appellant had claimed that he bought a 3-bedroom bungalow with a 2 boy’s quarter from the Federal Government of Nigeria. The bungalow is at No.82A El-kanemi Road, GRA, Maiduguri, Borno State. The bungalow was lying in a big expanse of land. However, the Appellant claimed that a part of his land was carved out from the land which he bought. The Respondent on his part claimed that his own land was never part of the Appellant’s land. The brief facts as recapped by the Respondent are as follows:
The Appellant herein was the Claimant before the lower Court wherein he claimed he purchased House No.82A which is a 3-Bedroom bungalow with 2 rooms boys quarters laying and situated at El-Kanemi Road, GRA Maiduguri in Borno State from the Implementation Committee of the White Paper on the Commission of Inquiry into the Alienation of Federal Government Landed
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property herein after referred to as the “Implementation Committee” for a consideration of N3,491,320.00.
The Appellant further laid claim over a land which he claims to be part of the house he bought from the Implementation Committee. According to the Appellant, the land was part of his house which was carved out by the Respondent.
The Respondent on the other hand denied this assertion and contended that the land was not carved out from the Appellant’s house he bought from the Implementation Committee. In fact the land was plot No. 4 Site C El-kanemi Road, GRA Maiduguri which is not and was never part of the Appellant’s house sold to him by the Implementation Committee.
The Respondent further contended that the plot of land in dispute consist of an area of about 1672 sq.m., firstly allocated to one Adamu Bwala II on 29th November, 2004 by Federal Ministry of Works and Housing vide Allocation Letter with NO.FMW&H/BOS/CS/52/106/23, Adamu Bwala sold the land to one Alhaji Baba Musami who also sold to one Alhaji Suleiman before the Respondent purchased the plot.
At the trial before the lower Court, the Appellant testified
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as the sole witness of the claimant, tendered some exhibits and closed his case. The Respondent on the other hand testified as defence witness with one Bulami Ali, tendered exhibits and closed his case.
In its considered judgment of 28th June, 2018, the lower Court found no merit in the Appellant’s claim and subsequently dismissed the claim in its entirety on grounds among others that the Appellant failed to lead credible evidence that plot No.4 Site C, was indeed carved out as part of the house he purchased from the Implementation Committee.
The Appellant filed his Notice with 5 grounds of Appeal. The Appellant filed his Appellant’s Brief on 22nd October, 2018 and articulated three issues for determination by the Court as follows:-
“1. Whether the learned trial Judge was right to have rejected in evidence, the Site Plan produce by the Appellant in support of his case haven been Certified. (Distilled from ground One).
2. Whether the Appellant had proved an identifiable portion of land to which his claim relates and consequently entitled to judgment against the Respondent. (Distilled from ground Two).
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- Whether the learned trial Judge had properly evaluate the evidence on the record before arriving at his decision. (Distilled from grounds 3 & 4).”The Respondent filed his brief on 30th September, 2020 but deemed properly filed and served on 15th October, 2020. The Respondent distilled two issues for determination as follows:-
“1. Whether the learned trial Judge was right to have held that the Site Plan is inadmissible having offended Section 3(b) of the Borno State Survey Law Cap.134.
2. Whether the Appellant as claimant has proved his claim before the lower Court as required by law.”I will go ahead and determine this Appeal with the three (3) issues articulated by the Appellant, the owner of this Appeal.ISSUE 1:
The learned Counsel to the Appellant submitted that the learned trial Judge rejected the Site Plan and held as follows:-
“The Site Plan sought to be tendered is a survey plan of a site. The document is certified by a Deed Registrar from Ministry of Land and Survey. The document didn’t have the name of the person who prepared same, nor whether such a person is a surveyor or not. There is no
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linkage between the Ministry of Land and Survey and the documents as to how it was prepared. In the circumstances, the provision of Section 3 of the Borno State Law has been infringed, and given the state of the plan with no name of the person who prepared same and how it got to the Ministry before they now certified it, it cannot be a judicial and judicious exercise of discretion to admit it in evidence in such state. The plan is rejected and so marked.”
Counsel further submitted that Section 146 of Evidence Act is relevant and cited Tabik Investment Ltd. vs. G.T.B. Plc (2011) All FWLR (Pt.602) page 1592 where the Supreme Court per Rhodes-Vivour, JSC held that:-
“Certified copies are by statute deemed to be originals. Where there is no certification, the presumption of regularity will not be ascribed to it, so it ought to be certified in order that the Court is left with no alternative but to accept the authenticity of its content.”
See also Odubeko vs. Fowler (1993) 7 NWLR (Pt.308) page 637; Uzamere vs. Urhogide (2011) All FWLR (Pt.558) page 839; Omoboriowo vs. Ajasin (1984) 1 SCNLR page 108; Aregbesola vs. Oyinlola (2009) 14 NWLR (Pt.1162) page 429.
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Counsel argued that in the absence of any evidence to the contrary, a document certified by any officer in Nigeria authorized to be regular by virtue of Section 113(1) of Evidence Act. That is in the absence of any evidence to the contrary, there is a presumption that things are rightly and properly done in accordance with the law.
Counsel argued that the rejected Site Plan was relevant to the facts in issue. The Site Plan was a composite plan showing the area carved out by the Respondent. Counsel also stated that the Site Plan did not offend Section 3 of the Survey Law of Borno State. The Site Plan certified by the Deeds Registrar had substantially complied with Section 3 of the Survey Law of Borno State.
Finally, Counsel argued that the Site Plan having been certified raises a presumption of regularity and urged the Court to resolve this issue in favour of the Appellant.
ISSUE 2:
Learned Counsel for the Appellant submitted that he tendered Exhibit “A”, the composite site plan but was rejected for the reasons stated by the learned trial Judge as:
“The Site Plan sought to be tendered is a
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survey plan of a site. The document is certified by a Deed Registrar from Ministry of Land and Survey. The document didn’t have the name of the person who prepared same, nor whether such a person is a surveyor or not. There is no linkage between the Ministry of Land and Survey and the documents as to how it was prepared. In the circumstances, the provision of Section 3 of the Borno State Law has been infringed, and given the state of the plan with no name of the person who prepared same and how it got to the Ministry before they now certified it, it cannot be a judicial and judicious exercise of discretion to admit it in evidence in such state. The plan is rejected and so marked.”
The Appellant argued that he was allocated No.F.M.H.&E. 82A El-kanemi Road, Maiduguri, Borno State with all the adjoining land in 1996. All the papers for the allocation were all tendered. Exhibit “A”, the Site Plan which was rejected by the trial Court showed the size of the plot, features and the boundaries.
Counsel argued further that the identity of the plot in issue can be proved by (a) oral evidence describing with such a degree of accuracy
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the said parcel of land in a manner that will guide a Surveyor in producing a Survey Plan of the land; the identity of the land is usually established by identifying the boundary features or marks and the people with whom the claimant shared the boundaries of the land; (b) by the claimant filing a Survey Plan reflecting all the features of the land showing clearly the boundaries as well as the plot that share common boundaries with the land in dispute. See Oyetunji vs. Akanni (1986) 5 NWLR (Pt.42) page 46; Maigari vs. Mailafiya (2011) 1 NWLR (Pt.1228) page 379 and Bamikole vs. Oladele (2011) 1 NWLR (Pt.1229) page 483.
Finally, Counsel submitted that Exhibit “A” rejected was a composite Site Plan to show the extent of the Appellant’s land and the carve out by the Respondent.
Appellant claimed that it was his duty to file a composite Site Plan in proof of the extent of his land which is in dispute. See Elias vs. Suleiman (1973) 1 All NLR (Pt.2) page 282; Bankole vs. Pelu (1991) 8 NWLR (Pt.211) page 523.
ISSUE 3:
Learned Counsel for the Appellant submitted that the learned trial Judge did not properly evaluate the material
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evidence in support of his case placed before it. Also that the trial Judge did not appraise the documents placed before the Court in proof of the Appellant’s case. See Olali vs. Nig. Army (2016) 4 NWLR (Pt.1502) page 358 which held as follows:-
“Evaluation of evidence involves reviewing and criticizing the evidence given, estimating it. Any decision arrives at without a proper or adequate evaluation of the evidence cannot stand. Evaluating evidence does not stop with assessing the credibility of witnesses, although in appropriate cases, it is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the party evidence seeks that the trial Court should make.”
Counsel urged the Court to re-evaluate the material evidence placed before the trial Court which it failed to evaluate properly.
Counsel finally urged the Court to resolve this issue in favour of the Appellant and allow this appeal.
RESOLUTION:
The primary duty placed
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on a Plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly the area of land to which his claim is related so that the land can be identified with certainty. See Idehen vs. Osemwenkhae (1997) 10 NWLR (Pt.525) page 358; Iordye vs. Ihyambe (2000) 12 SC (Pt.II) page 126; Gbadamosi vs. Dairo (2007) 3 NWLR (Pt.1021) page 282; Dada vs. Dosunmu (2006) 18 NWLR (Pt.1010) page 134.
In an action for declaration of title to land, the onus is on the Plaintiff to prove title to a defined area to which the declaration can be attached. Where the land being claimed is contained in a Survey Plan, it is the duty of the plaintiff to serve the plan on the defendant to enable him know the land being claimed against him. Such Survey plan must show clearly the dimension of the land, the boundaries and other features.
The Appellant in proof of his claim filed composite Site Plan which the Court rejected for the reasons already stated above.
The idea of trying to tender the Site Plan Exhibit “A” (rejected) was to identify the land to which this declaration is to be anchored on. The Appellant filed a Certified True Copy
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of the Site Plan certified by the Deed Registrar, Ministry of Lands, Borno State. The Site Plan sought to be tendered is a part of a composite plan kept in the custody of the Deed Registrar, Ministry of Lands, Borno State. The only copy of the Site Plan that can be admissible is a Certified True Copy of the original copy. This Site Plan was not certified by any other person but the Deed Registrar who is the custodian of the original copy of this public document. As held by Rhodes-Vivour, JSC in Tabik Investment Ltd. vs. G.T.B. Plc (supra): “Certified copies are by statute deemed to be originals. Where there is no certification, the presumption of regularity will not be ascribed to it, so it ought to be certified in order that the Court is left with no alternative but to accept the authenticity of its content.”
See also Iteogu vs. LPDC (2009) LPELR-532; Araka vs. Egbue (2003) LPELR-523; In RE: Obadina Family vs. Ambrose Family (1969) LPELR-25544.
It is true that the identity of land is proved by a properly drawn Survey Plan. It is also true that a Survey Plan which is not countersigned by a Surveyor-General is inadmissible in evidence no
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matter how well and how properly drawn. See Lawson vs. Afani Cont. Co. Ltd. (2002) 2 NWLR (Pt.572) page 585.
In the instant appeal, the Site Plan rejected is part of a composite plan that included the land in dispute. The land in dispute is in a properly laid out area of the GRA, Maiduguri, Borno State. The Site Plan certified by the Deed Registrar is the proper person who has the power to authenticate that the presumption of the document being regular resides.
The Court should not look at the document as a Survey Plan simpliciter. It should go further to look at the document as a Certified True Copy of a public document. It should also be noted that the Certified True Copy is coming from the right custody i.e. the Deed Registrar who keeps these documents. So far as the Site Plan was a Certified True Copy of the original public document, it ought to be presumed to satisfy all the requirements of the law including Section 3 of the Borno State Law. In Odubeko vs. Fowler (supra), the Supreme Court held: “In the absence of any evidence to the contrary, a document certified by any officer in Nigeria authorized in that behalf is presumed to be regular by
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virtue of Section 113(1) of the repealed Evidence Act. That is in the absence of any evidence to the contrary, there is a presumption that things are rightly and properly done in accordance with the law.”
Section 114 of the Evidence Act provides for the presumption as to genuineness of Certified True Copy of documents. The intendment of the Section is that where a document is genuine and that it has been regularly certified as a copy of the original by the officer charged with the responsibility of doing so. See Cardoso vs. Daniel (1986) 2 NWLR (Pt.20) page 1; Magnusson vs. Koiki (1991) 7 NWLR (Pt.203) page 358 under the provisions of Section 114 of the Evidence is to presume a Certified True Copy of a document to be genuine if upon its production, it shows the following features (a) that it was duly certified (b) that the certifying officer has been duly authorized and (c) that is in substantial form executed according to law.
This Site Plan having been properly certified according to Section 114 of Evidence Act is admissible as it is presumed regular. The Site Plan was duly pleaded in the amended Statement of Claim of 26th July, 2017 and found
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on pages 37-45 of the Record of Appeal. The Site Plan was relevant and therefore admissible document. See Fawehinmi vs. NBA (No.2) (1989) 2 NWLR (Pt.105) page 558.
What really determines the admissibility or otherwise of a particular piece of evidence or document at the Court of law is the Evidence Act and not the Law. It is only where the Evidence Act does not make express provision relating to the admissibility of a piece of evidence that resort can be had to the principle and provisions of the Law. See Klifco (Nig.) Ltd. vs. N.S.I.T.F.M.B. (2005) 6 NWLR (Pt.922) page 44; Jadesimi vs. Egbe (2003) 10 NWLR (Pt.827) page 1; R. vs. Itule (1961) 2 SCNLR page 183.
The Courts had gone ahead to distinguish between admissibility of a document and the weight to be attached to it. A document may be admissible in law but when put through the crucible of evaluation and ascription of probative value thereto, it may be found to be a worthless document. See I.M.B. (Nig.) Ltd. vs. Dabiri (1998) 1 NWLR (Pt.533) page 284; Buraimoh vs. Karimu (1999) 9 NWLR (Pt.618) page 310.
It is therefore safe to hold that this rejected Site Plan is admissible.
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The trial Judge was therefore wrong to have rejected it when tendered as it was relevant in the identification of the land in dispute.
Was the Appellant able to prove with certainty, the identity of the land to which his declaration of title is to attach. Now Exhibit “A” rejected has been admitted. It showed the extent of the land in dispute. The Appellant vide Exhibit “D1” had been offered the property. The property was a 3-Bedroom bungalow with 2 Boy’s Quarter sitting on No.FMH&E 82A El-Kanemi Road, GRA, Maiduguri, Borno State. The Appellant was allocated the said property and he paid the price to the Federal Government of Nigeria. I have looked at all the relevant documents tendered by the Appellant in proof of his ownership of this property. Exhibit “F” is very instructive as it stated that NO.FMH&E/82A El-Kanemi Road, Maiduguri was sold to the Appellant whole and entire. There was no sub-division of the plot. Exhibit “G” was a caveat issued by The Presidency warning about carve out from original plots allocated to people. Exhibit “A”, the Site Plan showed the original plot of FMH&E/82A
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El-Kanemi Road, Maiduguri, Borno State. It also showed the carve out. That carve out exactly matches the Site Plan of the land the Respondent is claiming Exhibit “A”. What does this show? It shows that indeed the Respondent’s land on the disputed land is carved out from the Appellant’s property.
This carve out was paid for in 2007 several years after the Appellant bought his property in 1996. This invariably means that as of the time the Respondent purportedly bought this carve out, the Federal Ministry of Work had nothing to sell. It is trite that no one can validly give what he does not have. This is expressed in the Latin maxim of Nemo dat quod non habet. The maxim is most applicable where a party who does not have something purports to sell it. See Egbuta vs. Onuna (2007) 10 NWLR (Pt.1042) page 298; Owena Bank Plc vs. Olatunji (2002) 12 NWLR (Pt.781) page 259; Olagunju vs. Yahaya (2004) 11 NWLR (Pt.883) page 24.
The doctrine of nemo dat quod non habet is to the effect that a person cannot give what he does not have. Therefore, a vendor cannot subsequently sell land which he already sold to another person.
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See Adeagbo vs. Williams (1998) 2 NWLR (Pt.536) page 120; Yusuf vs. Mathew (1999) 13 NWLR (Pt.633) page 300; Adesanya vs. Aderonmu (2000) 6 SC (Pt.II) page 18; Elema vs. Akenzua (2000) 6 SC (Pt.III) page 26.
The purported Sale of part of FMW&E/82A El-Kanemi Road, Maiduguri is void as the Federal Government of Nigeria had already sold the property to the Appellant. The purported carve out and Sale of part of that property is null ab initio. The Federal Government of Nigeria had already sold and had nothing to sell to the buyer who subsequently sold to the Respondent.
The Appellant’s Counsel had submitted that the learned Trial Judge did not properly evaluate the material evidence placed before it in reaching its decision in its judgment. Evaluation of relevant and material evidence before the Court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Appellate Court to substitute its own view for the view of the trial
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Court. See Agbi vs. Ogbeh (2006) 11 NWLR (Pt.990) page 65; Bashaya vs. State (1998) 5 NWLR (Pt.550) page 351; Ojokolobo vs. Alamu (1998) 9 NWLR (Pt.565) page 226; Sha vs. Kwan (2000) 5 SC page 178; State vs. Ajie (2000) 7 SC (Pt.1) page 24; Fagbenro vs. Arobadi (2006) 7 NWLR (Pt.978) page 178.
With the above, it is obvious that the trial Judge failed to evaluate the relevant and material evidence placed before it especially the documentary ones. I have evaluated the evidence placed before the Court earlier on in this judgment. I have come to the conclusion that the trial Judge failed in the evaluation of evidence. I have therefore done so and come to the conclusion that the onus placed on the Appellant had been discharged and he is entitled to the declaration he sought.
The Appeal is meritorious. It is allowed. I hereby set aside the judgment of the lower Court. The Appellant is the owner of the property known as FMW&E NO.82A El-Kanemi Road, Maiduguri, Borno State and all the adjoining land thereof as in the Site Plan Exhibit “A”:
1. The Appellant is the rightful beneficial and leasehold owner of property No.FMH & E No.82A
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El-Kanemi Road, GRA, Maiduguri, Borno State.
2. An Order of perpetual injunction restraining the Respondent, whether by himself, agents, privies or assigns or any other person whosoever called or whatsoever described from claiming ownership of the land, the subject matter of this appeal.
3. N250,000.00 to the Appellant for damages for trespass. Cost to the Appellant is assessed at N200,000.00.
JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading in draft a copy of the leading Judgment delivered by my learned brother, Ndukwe-Anyanwu, J.C.A.
I am in agreement with his Lordship’s reasoning and conclusion.
I abide by the Orders made, inclusive of the Order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I read the draft of the judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA.
The reasoning and conclusion reached in the said judgment is deft. I find nothing therein to differ. Nor do I have anything useful to add.
Therefore, I too agree that the appeal is meritorious, and is hereby allowed.
Accordingly, the judgment of the lower Court is hereby set aside, and in its stead, I grant
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to the Appellant the reliefs granted him in the lead judgment.
I abide by the order for costs made in the lead judgment.
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Appearances:
A Usman holding the brief of A. G Isa For Appellant(s)
Abubakar For Respondent(s)
