GARBA ZALLA v MAMMAN IBRAHIM & ORS
(2018)LCN/12187(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/43/2017
RATIO
LAND LAW: TITLE AND OWNERSHIP OF LAND
“There are five (5) well established methods by which title or ownership of land may be proved and these were laid down by the Supreme Court in the case of IDUNDUN vs. OKUMAGBA (Supra). While it may not be necessary to go into mentioning of all five (5) methods here, it is important nevertheless, to state that the onus on the Plaintiff seeking to prove title is discharged if he establishes any one of these five (5) methods. See the case of ABEL NKADO & ORS vs. OZULIKE OBIANO & ANOR (Supra). From the Respondents pleadings as Plaintiffs and evidence led in Court it is of course clear that the Respondents relied on acts of long possession and enjoyment of land to prove their title. It is perhaps, important to note that for possession as an act to constitute a means of proving ownership or title to land, it of course has to be acts of long possession and enjoyment. Usually, occupation or physical control of land either personally or through an agent or servants is a determining factor for possession. See the case of ATIPIOKO EKPAN & ORS vs. CHIEF AGWU UYO & ORS. (1986) 33 NWLR (PT. 26) 63 on the issue. It is instructive to note that to establish their claim of acts of possession or ownership and long possession, the Respondents at paragraph 10 of their Statement of Claims at page 6 of the records drew Courts attention to the following averments; After the Plaintiffs father deforested the said farmland, he has been in an undisturbed possession, use and enjoyment of same throughout his lifetime.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES:
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
GARBA ZALLA – Appellant(s)
AND
1. MAMMAN IBRAHIM
2. YAHAYA LABBO
3. IBRAHIM GARBA
4. LAMI – Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Judgment of the Zamfara State High Court, Holden at Gusau Judicial Division Gusau, Zamfara State, which was delivered by BELLO ALIYU GUSAU, J., on the 31st March, 2016 in Suit No: ZMS/GS/40/2010 wherein Judgment was given in favor of the Respondents who were Plaintiffs (See pages 63-77 of the Record of Appeal).
By writ of summons dated the 14th day of July, 2010 and accompanied by a Statement of Claim, the Respondents as Plaintiffs in suit No: ZMS/GS/40/2010 claimed against the Appellant as Defendant, the follows:-
1. A declaration that the Plaintiffs are the rightful owner of a farmland situated and being at Gidan Zalla in Bungudu Local Government Area measuring about 148.3 by 277 feets popularly known and called Tsamiyar Dangaji bounded by Labbo Zalla land from the South-South and road from the North.
2. A declaration that the Plaintiffs being the only surviving heirs of Dangaje are entitled to the said farm land known as Tsamiyar Dangaje.
3. That the entry upon the same by the Defendant himself or through his agents, servants, privies and workmen is only as a result of trust held by the Defendant for the benefits of the Plaintiffs.
4. The act of erecting an uncompleted building upon the said land at Tsamiyar Dangaje by the Defendant without consent or authority of the Plaintiffs amount to trespass.
5. An order directing the Defendant to remove his building from the said land.
6. An order of perpetual injunction restraining the Defendant by himself, his agents, privies and servant from further erecting or constructing any building or any other thing whatsoever called on the said land known as Tsamiyar Dangaje.
7. Cost.
(See pages 1-8 of the Record of Appeal)
The Appellant as Defendant, with Leave of Court granted on the 12-10-2011 filed his statement of defence dated 15-06-2011 on which he Joined issues with the Respondents as Plaintiffs. The Respondents in response to this filed a Reply dated 17-10-2011. (See pages 12-18 of the Record of Appeal).
At the trial, the Respondents called seven (7) witnesses and tendered a total of four (4) exhibits. The Appellant on his part called six (6) witnesses and tendered no exhibits. (See pages 30-54 and 66-74 of the Record of Appeal). At the conclusion of the trial, Counsel filed, exchanged and adopted their written addresses and urged the Court to find in favour of their respective clients. See pages 54-62 and 74 of the Appellants.
In a well considered judgment delivered on the 31st March, 2016, the learned trial Judge gave Judgment in favour of the Respondents and granted all the reliefs sought by them. See pages 63-77 of the Record of Appeal. Dissatisfied with the lower Courts Judgment, the Appellant filed a Notice of Appeal on the 12th April, 2016, containing three (3) Grounds of Appeal (See pages 78-80 of the Record of Appeal). These Grounds of Appeal are reproduced without their particulars as follows;
GROUNDS OF APPEAL;
1. The learned trial Judge erred in law when he entered judgment in favour of the Respondents without proof of their Root of Title to the farmland in dispute and thereby occasioned a serious Miscarriage of Justice.
2. The learned trial judge erred in law in failing to find in favour of the Appellant, having proved a better title to the farmland in dispute and thereby occasioned a Miscarriage of Justice.
3. The judgment is unreasonable, unwarranted and cannot be supported having regard to the Weight of Evidence.
ISSUES FOR DETERMINATION:-
The Appellant raised two (2) issues for determination of this Appeal thus:
1. Whether the Respondents who were Plaintiffs in this suit discharged the Burden of Proof placed on them establishing their claim to justify the award of the judgment by the trial Court (Grounds 1 and 3).
2. Whether having regard to the Appellants unchallenged evidence of being in Long possession of the farmland in dispute for over 66 years, was not sufficient to tilt the scale in favor of the Appellant. (Ground 2)
On the part of the Respondents, only an issue was nominated for the determination of this Appeal thus:
Was the decision of the Court below correct in law?
Although the issue nominated by the Respondents aptly sums up the entire issues raised by the Appellant, however, for the sake of comprehensiveness and also of clarity, the two issues nominated by the Appellant, shall be the basis upon which this Appeal shall be decided. The Appellants Brief of Argument dated 10-1-2018 and filed on the same date was settled by PWAHOMDI, L. M. ESQ.; while the Brief of the Respondents dated 17-10-2018 and filed on the same date was settled by IBRAHIM ABDULLAHI ESQ.,. On the 18-10-2018 at the hearing of this Appeal, learned Counsel for the parties adopted their respective Briefs of Arguments and urged the Court to decide this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL;
ISSUE ONE:
Whether the Respondents who were Plaintiffs in this suit discharged the Burden of Proof placed on them establishing their claim to justify the award of the judgment by the trial Court (Grounds 1 and 3).
The argument of learned Counsel in this issue is that a close observation on the pleadings of the parties will show that the dispute between them is in respect of a farmland and that from the depositions, it is clear that the Appellant as the Defendant neither made admission of any material fact in issue nor filed a counter claim, and therefore, that the onus was on the Respondents throughout as Plaintiffs to establish their claims by credible and consistent evidence in accordance with their pleadings.
Counsel said that the case as fought by the Respondents is that the farmland in dispute was deforested by their father, one Dangaje, who remained in an undisputed possession throughout his life time and that it was only entrusted to the Appellant upon the demise of their father to hold in trust. See paragraphs 6, 7, 8, 9, 10 and 11 of the Statement of Claim. Counsel submitted that the task, therefore before the trial Court was to resolve the issue that the Respondents father deforested the farmland in dispute and that it was entrusted to the Appellant to hold same in trust. In other words, he said, that the Respondents had the onus to show how their title to the farmland in dispute was derived and that the evidence should be consistent, coherent and convincing.
In this connection, Counsel drew Courts attention to the modes of establishing title to land and cited the regular old cases of IDUNDUN vs. OKUMAGBA (1979) 9-10 SC 227; PIARO vs. TENALO (1976) 12 SC 31; FASORO vs. BEYIOKU (1988) 2 NWLR (Pt. 76) 263; and AMAJIDEOGU vs. ONANAKU (1988)2 NWLR (Pt. 78) 614 in support of his submissions.
Counsel argued that in the instant case, the Respondents seemingly having relied on the evidence of traditional history in establishing the ownership of the farmland in dispute, they ought to have complied with the law on the subject by pleading and proving their Root of Title; who their ancestors were; how their ancestors came about the land; how the land eventually devolved on their ancestor. Counsel cited the following cases in support; SALISU vs. MOBOLAJI (2016) 46 EJSC 51 at 81; ADEJUMO vs. AYANTEGBE (1989) 3 NWLR (Pt. 110) 417 and ANYANWU vs. MBARA (1992) 5 NWLR (Pt. 242) 386 AT 399.
The submission of Counsel here is that in the instant case, Respondents failed to plead and prove the above requirements satisfactorily and therefore that the learned trial Judge was in error to have entered judgment for them. He said that even though there was a seeming attempt by the Respondents to plead their Root of Title to the farmland in dispute in paragraphs 6, 7, 8, 9, 10, 11 and 12 of their Statement of Claim, the evidence adduced by the Respondents failed to pass the acid test of law, to prove the base upon which they founded their title to the farmland in dispute and consequently their claim ought to have failed.
It was also submitted by Counsel that a consideration of the relevant paragraphs of the Statement of Claim and the evidence adduced by the Respondents in proof thereof, will reveal that the pleadings and the evidence constitute recent acts within living memory and therefore cannot be regarded either as pleading of traditional history or traditional evidence. For this proposition, Counsel cited the cases of EWO & 3 ORS vs. ANI & 17 ORS VOL. 2 LLAC 228 at 238; SALISU vs. MOBOLAJI (2016) 46 EJSC 51 at 81.
The argument of Counsel is that the testimonies of the PW1, PW2, PW3, PW4, PW5 and PW7 that the learned trial Judge relied upon in arriving at the conclusion that the Respondents discharged the onus of proof on them and therefore entitled to judgment, are not cogent, consistent, coherent, convincing and conclusive. Counsel said that while none of the said witnesses gave coherent and convincing evidence as to how the farmland was founded and how it came into possession of the Appellant most significantly, PW1, at page 31 of the Record of Appeal responded under cross examination that he was not around when the farmland and children of Dangaje Zalla were entrusted to their uncles.
Counsel further said that the PW2 at page 32 of the Record of Appeal gave inconsistent evidence that the farmland had been in possession of the Appellant before the sharing of the children and farmlands. He referred to the evidence of the PW3 at page 34 of the Record of Appeal, where he confirmed under cross-examination that he did not know how the Appellant came about the transfer of the farmland or when the farmland was entrusted to the Appellant. Ditto PW4 under cross-examination at page 38 of the Record of Appeal, who testified that he did not know specifically what was given to the Appellant along with the 3rd Respondent.
Again, the PW5, being the 3rd Respondent at page 39 of the Record of Appeal admitted under cross-examination that all what he told the Court was what he was told by his uncles. Also PW7, being the 1st Respondent, gave inconsistent testimony both under Examination in Chief and Cross-Examination at pages 44 and 45 of the Record that two farmlands were entrusted to the Appellant that he had released one.
Against the backdrop of this position, the submission of Counsel is that when the learned trial Judge evaluated the evidence adduced by the Respondents before reaching the conclusion that they were entitled to judgment, those pieces of evidence as highlighted above that remained inconsistent and inconclusive, were deliberately glossed over by the Court. Counsel further submitted that the evaluation of evidence by the trial Court was perverse and liable in the circumstance to be interfered with by the Appellate Court. He referred to the case of OLALOMI INDUSTRIES LTD vs. N.I.D.B VOL. 3 LLAC 283 the Supreme Court as per ADEKEYE, JSC held at page 313 as follows:-
In evaluation of evidence, the trial Court must have regard to the admissibility of evidence and relevance of same, credibility of the evidence, conclusiveness of same, the probability of the evidence as between the two parties. It will as an outcome of that exercise apply the law to the sum total of the evidence before arriving at a conclusion one way or the other.
See also; OGBOJA vs. ACCESS BANK PLC (2016) 2 NWLR (Pt.1496) 291 at 324; F.R.N vs. YAHAYA (2016) 1 NWLR (Pt.1494) 545 at 555; ANYANWU & ORS vs. UZOWUAKA & ORS Vol. 3 LLAC 132 at 144.
The contention of Counsel here is that upon a proper evaluation of the entire evidence adduced by the Respondents, it will be apparent that the Respondents had failed in their duty to show by credible and admissible evidence of how their father got the farmland in dispute and how it came into the possession of the Appellant. He submitted in this regard that the learned trial Judge erred in law when he granted judgment in favor of the Respondents against the Appellant and he urged this Court to so hold and to resolve issue one in favour of the Appellant and consequently allow this Appeal.
ISSUE TWO;
Whether having regard to the Appellants unchallenged evidence of being in Long possession of the farmland in dispute for over 66 years, was not sufficient to tilt the scale in favor of the Appellant (Ground 2).
The argument of Counsel under this issue is that from the pleadings of the Respondents, most particularly paragraphs 6, 8 and 12 of the Statement of Claim and the evidence adduced by them, the Respondents affirmed that the Appellant has been in possession of the farmland in dispute for over, a period of 60 years covering the life time of “Dangaje” the Respondents father.
As far as Counsel was concerned this assertion by the Respondents in both their pleadings and evidence raised in favour of the Appellant the presumption of ownership of the farmland by virtue of the provision of Section 143 of the Evidence Act, 2011, which provides as thus:-
“When the question is whether any person is owner of anything which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
Counsel cited the cases of AMINU & ORS vs. HASSAN & ORS VOL. 7 LL.AC 87 at 106; RAPHAEL UDEZE & ORS vs. PAUL CHIDEBE & ORS (1990)1 NWLR (Pt. 125)141 at 160-161; and DADA vs. BANKOLE (2008) 33 NSCQR 191 at 234.
The argument of Counsel is that given the presumption arising from the fact that the Appellant had been in exclusive possession, it goes to show that the Appellant is the owner of the farmland in dispute until the contrary is proved to rebut that presumption. For this reason, Counsel submitted that the learned trial Judge was in grave error in finding in favour of the Respondents when they woefully failed to establish their claim that the farmland was entrusted to the Appellant by admissible, credible and cogent evidence. He also submitted that the Respondents, having not discharged the onus on them, their claims were liable to be dismissed.
Still in connection to the Respondents assertion affirming the Appellants exclusive possession of the farmland in dispute, Counsel referred to the Appellants pleadings at paragraphs 7, 9, 13 and 14 of his Statement of Defence and as well as the evidence adduced by the Appellant in proof thereof. The submission of Counsel therefore, in the light of the facts and circumstances of this case, is that there is a clear perversity in the findings of the learned trial Judge that the Respondents are entitled to judgment. See SALAMI & ANOR vs. LAWAL (2008)36 NSCQR (Pt. 11) 1018 at 1053 where the Supreme Court as per TOBI JSC held as follows:-
A person who has possession of a thing has the support and strength of the Law to protect that thing, subject to the rights of a person with better proof of title.
Counsel urged this Court to resolve issue two in favour of the Appellant and consequently to allow this appeal.
RESPONDENTS:
SOLE ISSUE FOR DETERMINATION;
Was the decision of the Court below correct in law?
In arguing this sole issue, learned Counsel submitted that there are five ways of proving or establishing title to land and cited the following cases in support:NKADO vs. OBIANO (1997) 5 NWLR (PT. 503) 31 AT 34; NKWO vs. IBOE (1998) 7 NWLR (PT. 558) 354; CHUKWU vs. DIALA (1999) 6 NWLR (PT. 608) 674; INWELEGBU vs. EZEANI (1999) 12 NWLR (PT. 630) 266; ADESANYA vs. ADEROUNMU (2000) 6 S.C. (PT. 11) 18; ADEOSUN vs. JIBESIN (2001) 14 WRN 106 AT 108. Counsel also agreed with the old principle of law which ordains that a Plaintiff can rely on more than one mode of establishing title to land.
Counsel however added the rider that the cases cited here above on the methods or means of proving ownership to land do not by any means prescribe or set out the mode by which title is acquired. He cited in support, the case of AJIBOYE vs. ISHOLA (2006) ALL FWLR (PT. 331) 1209 at 1229 -1230 where the apex Court per ONNOGHEN, JSC (now CJN) stated thus:
It has been settled by long line of authorities from this Court, that ownership to title to land may be proved by any of these five methods, viz: (a) By traditional evidence; (b) By production of documents of title, which are duly authenticated; (c) By acts of selling, leasing, renting out all or part of the land, or farming on it, or portion of it; (d) By acts of long possession and enjoyment of the land; and (e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute; See Idundun v. Okumagba (1976) 9-10 SC 227; Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31; Section 46 of Evidence Act, 1990. It must however be noted that the above five methods deal with the means by which title to land can be proved in a Court of law. The said methods have nothing to do with the mode of acquisition of title to land which may be by: (a) First settlement on the land and deforestation of the virgin land; (b) Conquest during tribal wars; (c) Gift; (d) Grant-customary;(e) Sale; (f) Inheritance, etc.
Learned Counsel further submitted that by paragraphs 6 – 12 of the Statement of Claims of the Respondents at pages 6 – 7 of the records, the case of the Respondents falls within the purview of having to prove possessive acts of ownership extending over a sufficient length of time, by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute and acts of long possession and enjoyment of the land in dispute in reliance to the cases cited supra.
The argument of Counsel is that contrary to the contention of the Appellant that the case of the Respondent was based on traditional history, he said that the reverse is actually the case and all the cases, therefore, cited by the Appellant at pages 6 – 7 of the Appellants Brief of Argument, are not applicable to the facts and circumstances of the instant Appeal. Counsel contended that to establish their claim of acts of possession or ownership and long possession, that the Respondents at paragraph 10 of their Statement of Claims at page 6 of the records stated the following;
After the Plaintiffs father deforested the said farmland, he has been in an undisturbed possession, use and enjoyment of same throughout his lifetime.
Learned Counsel also contended that the evidence in relation to positive acts of ownership extending over a sufficient length of time and acts of long possession and enjoyment of the land can be found from the evidence of PW1, 2, 3 & 4 at pages 30 – 34, 37 – 38 of the records.
According to Counsel, these witnesses all gave consistent evidence that was never impeached by the Appellant at the trial. Counsel added that the Court below took the positive acts of ownership extending over a sufficient length of time and acts of long possession and enjoyment of the land into consideration when it held at page 74 of the records thus:
The first seeks to determine as between the two contending assertion as to the Root of Title of the contending parties which is supported by legally credible evidence before the Court; We recall that while Plaintiffs asserts it was deforested by their father Dangaje, the Defendant asserted it was by his father (i.e. grandfather of the Plaintiffs) on the part of the Plaintiffs, PW2, PW3 and PW7 testified that the farmland in dispute was deforested by the Plaintiffs father and devolved to them upon their fathers death. They were not challenged on this essential issue by the Defence, hence their evidence remained un-contradicted and may be accepted and relied upon by the Court to reach its judgment unless the Defendant is able to controvert or rebut the case of the Plaintiffs.
Arising from this background, Counsel submitted that Section 35 of the Evidence Act, 2011 raises a presumption in favor of a person who exercises acts of possession and enjoyment over a piece of land to be the owner of the said land. He cited the case of OKWARANONOBI vs. MBADUGHA (1998) 7 NWLR (Pt. 558) 471. This, learned Counsel argued that the Respondents have done at the Court below via the evidence of PW1 – 7 at pages 23 – 66 – 74 of the records.
It was also submitted by Counsel that by the admission of the Appellant in paragraph 4.1.6 of the Appellants Brief of Argument that “the consideration of the relevant paragraphs of the Statement of Claim and the evidence adduced by the Respondents in proof thereof, will reveal that the pleadings and the evidence constitute recent acts within living memory and therefore cannot be regarded either as pleading of traditional history or traditional evidence” clearly shows that the Respondents never relied on traditional history as evidence of their claims to title to the farmland in dispute. This, Counsel said is because to plead traditional history as Root of Title, in a Claim for Declaration of Title, there must be averments as to the devolution of the land right from the original founder to this present party without leaving any unexplained or unexplained gaps in the chain of successors. He cited the case of UCHENDU vs. OGBONI (1999) 5 NWLR (PT. 603) P. 337; EZE vs. ATASIE (2000) 6 SC (PT. 1) 214. He added therefore, that traditional history was never the Root of Title relied upon by the Respondents as Plaintiffs.
Learned Counsel contended that in law a party can plead more than one particular Root of Title so long as it falls within the five (5) prescribed ways of proving title to land, but that what in law is not allowed is for a party to plead a particular Root of Title and having failed to establish it, to rely on another mode of acquisition of land not pleaded by him as his Root of Title to support his claim. See UDE vs. CHIMBO (1998) 12 NWLR (PT. 557) 169 AT 172 -173.
Apart from these, learned Counsel contended that the testimonies of the Respondents witnesses were never contradicted and therefore ought to be believed by the Court below. See BELLO vs. EWEKA (1981) 1.S.C. 101; AWENI vs. OLORUN KOSEBI (1991) 7 NWLR (PT. 203) 323 AT 356; NWABUOKU vs. OTTIH (1961) 2 SCNLR 232; UBA vs. ACHORU (1990)6 NWLR (PT.156) 254 AT 289; OFORLETE vs. STATE (2000) 7 S.C. (PT 1) 80; OLOHUNDE vs. ADEYOJU (2000) 6 S.C. (PT. 11) 118; FAGBENRO vs. AROBADI & ORS (2006) LPELR- 1227(SC).
Learned Counsel also made submissions on acts of possession and enjoyment of the farmland in dispute. He also made explanations and on the connotation of that under Section 35 of the Evidence Act, 2011 and the implications of this under Section 143 of the Evidence Act. Counsel cited the case of SIMEON AMAEFUNA vs. JONATHAN OKOLI (2014) LPELR-23755 (CA) per AGIM, JCA where at p. 53, Paras. B-E stated thus:
Section 143 of the same Evidence Act provides that “when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”. Section 35 of the Evidence Act 2011 provides that acts of possession and enjoyment of land may be evidence of ownership of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.
The argument of Counsel is that the Court below who had the opportunity of seeing the witnesses that testified before it believed the Respondents witnesses as witnesses of truth and the witnesses of the Appellant and indeed the Appellant as untruthful witnesses. He referred Court to page 75 of the records, where the Court below held thus:
I have the benefit of seeking the hearing all the witnesses who were called to testify by both Plaintiffs and Defendant. My observation from the demeanor of the witnesses is that PW2, PW3 and PW4 were witnesses of truth and spoke with no ill will or motive other than declaring what they knew.
The Defendant as DW6 and DW3 his son on the other hand did not impress this Court as witness who were prepared to say the truth. They gave the impression of persons who were trying to hold on to what belongs to another. I therefore reject their evidence on this fact and accept the testimonies of PW1, PW2, PW3, PW4, PW5 and PW7 as more probable of the facts of trust over the farmland in dispute.
It was also contended by Counsel that the Appellant never filed any Ground of Appeal on the question of lack of proper evaluation of evidence by the Court below; but that in paragraph 4.1.9 – 4.1.10 of the Appellant’s brief he introduced the issue of lack of proper evaluation of evidence and calling on this Court to so evaluate. The submission of Counsel is that the Appellant cannot smuggle the issue of lack of proper evaluation of evidence without complaining about same as a Ground of Appeal. It was contended by Counsel that on the cold printed records and without the benefit of watching the demeanor of the witnesses, this Court cannot embark on a re-evaluation of evidence and ascribe any probative value to the evidence so adduced and arrive at a different conclusion from the one arrived by the two Courts. See the case of REV. KING vs. STATE (2016) LPELR-40046(SC), P. 49, Paras. A-D.
On the argument on long possession, Counsel submitted that the law is settled that in a claim for Declaration of Title to Land, long possession would not confer title on a party if another party traces his title to the true owners unless the long possession is of a nature that ousts the title of the true owner by acquiescence. See the cases of THOMAS vs. HOLDER 12 WACA 78; DA COSTA vs. IKOMI (1968) 1 ALL NLR 394. In the instant appeal, learned Counsel contended that there was no acquiescence because the Appellant was holding over or unto the farmland as a trustee on behalf of or in trust for the Respondents.
It was further contended that even if the contention of the Appellant was true, that he has been in long possession, Counsel argued that no amount of use or the length of period of usage of land could confer ownership of land on such a user and it behooves such a party such as the Appellant to prove his title in the first place in order to justify the use to which the land in dispute had been put to.
He said that the purported enjoyment of a parcel of land in dispute cannot precede title nor can it indicate same. See the cases of REGISTERED TRUSTEES OF THE APOSTOLIC FAITH MISSION vs. JAMES (1987) 3 NWLR (PT. 61) 556; NWAESEH vs. NWAESEH (2000) 3 NWLR (PT.649) 391; YUSUF vs. ADEGOKE (2007) 11 NWLR (PT. 1045) 332; OLUBODUN vs. LAWAL (2008) 17 NWLR (PT. 1115) 1.
Counsel urged this Court to resolve this issue in favor of the Respondent and against the Appellant.
RESOLUTION OF APPEAL
The Respondents as Plaintiffs are Children/descendants of one Dangaje Zalla who died while the Respondents were yet to attain the age of majority. Before his demise, the Respondents father left behind as part of his estate three (3) farmlands and following his demise, the 1st 3rd Respondents were placed under the care of his brothers who survived him namely: Ibrahim Zalla, Labbo Zalla and Garba Zalla (the Appellant) pending when his Children would attain the age of maturity.
As part of the arrangements, Ibrahim Zalla, Labbo Zallah and Garba Zalla who is the Appellant herein, were each placed in charge of each of the three (3) farmlands aforementioned and empowered to use proceeds from the farmlands under their care and control to take care of the Respondents pending when they would attain the age of majority.
The 3rd Respondent in particular was directly placed under the care of the Appellant along with the farmland called: “Tsamiyar Dangaje” and which is the farmland in dispute. Thus, while the land in dispute is called “Tsamiyar Dangaje” the Appellant calls it “Gonar Bayan Gida” but this has not brought any confusion as to the question of the identity of the parcel of land in dispute as the parties are in agreement as to the farmland in dispute.
Upon the coming of age of the Respondents, they requested the return of their farmlands and that while all other brothers of Dangaje Zalla who held in trust for his Children agreed and returned the farmland held by them, the Appellant refused and/or failed to comply as he continued to hold over and until the matter resulted to litigation when the Respondents herein, on the 14th of July, 2010 commenced the Suit No. ZMS/GS/40/2010 against the Appellant as Defendant.
By their action at the Court below, the Respondents claimed sundry reliefs which included a claim for trespass coupled with a claim for an injunction against the Appellant as Defendant. This of course automatically puts the question of the title of the parties to the dispute in issue. There are many reported authorities on this issue. But the pertinent question, perhaps to address at this stage is whether the Respondents as Plaintiffs in this case did as much as establish their title to the parcel of land in dispute as required.
There are five (5) well established methods by which title or ownership of land may be proved and these were laid down by the Supreme Court in the case of IDUNDUN vs. OKUMAGBA (Supra). While it may not be necessary to go into mentioning of all five (5) methods here, it is important nevertheless, to state that the onus on the Plaintiff seeking to prove title is discharged if he establishes any one of these five (5) methods. See the case of ABEL NKADO & ORS vs. OZULIKE OBIANO & ANOR (Supra). From the Respondents pleadings as Plaintiffs and evidence led in Court it is of course clear that the Respondents relied on acts of long possession and enjoyment of land to prove their title.
It is perhaps, important to note that for possession as an act to constitute a means of proving ownership or title to land, it of course has to be acts of long possession and enjoyment. Usually, occupation or physical control of land either personally or through an agent or servants is a determining factor for possession. See the case of ATIPIOKO EKPAN & ORS vs. CHIEF AGWU UYO & ORS. (1986) 33 NWLR (PT. 26) 63 on the issue. It is instructive to note that to establish their claim of acts of possession or ownership and long possession, the Respondents at paragraph 10 of their Statement of Claims at page 6 of the records drew Courts attention to the following averments;
After the Plaintiffs father deforested the said farmland, he has been in an undisturbed possession, use and enjoyment of same throughout his lifetime.
Apart from this, the evidence given in relation to positive acts of ownership extending over a sufficiently period of time and given by the Respondents as Plaintiff, of acts of long possession and enjoyment of the land can be found from the evidence of PW1, 2, 3 and 4 at pages 30 – 34, 37 – 38 of the records.
It is remarkable to note that these witnesses all gave consistent evidence, which the Appellant did not impeach. The Respondents therefore established clear positive acts of ownership extending over a sufficiently long period of time. However, this Courts attention was drawn to the observation of the learned Judge of the Court below, where the Court said at paragraph 74 of the records thus:
The first seeks to determine as between the two contending assertion as to the Root of Title of the contending parties which is supported by legally credible evidence before the Court; We recall that while Plaintiffs asserts it was deforested by their father Dangaje, the Defendant asserted it was by his father (i.e. grandfather of the Plaintiffs) on the part of the Plaintiffs, PW2, PW3 and PW7 testified that the farmland in dispute was deforested by the Plaintiffs father and devolved to them upon their fathers death. They were not challenged on this essential issue by the Defence, hence their evidence remained un-contradicted and may be accepted and relied upon by the Court to reach its judgment unless the Defendant is able to controvert or rebut the case of the Plaintiffs
Arising from this background, learned Respondents Counsel submitted that Section 35 of the Evidence Act, 2011 raises a presumption in favor of a person who exercises acts of possession and enjoyment over a piece of land to be the owner of the said land. He cited the case of OKWARANONOBI vs. MBADUGHA (1998) 7 NWLR (Pt. 558) 471. This, learned Counsel argued that the Respondents have done at the Court below via the evidence of PW1 – 7 at pages 23 – 66 – 74 of the records.
It is important, nevertheless to state here that the concept of long possession in disputes involving land is more of a weapon of defence on equitable grounds to defeat claims for declaration of title and trespass, than one of an offence to establish a claim for declaration of title and damages for trespass as the Respondents as Plaintiffs have sought to do in this case. See the case of MOGAJI & ORS vs. CADBURY (NIG) LTD. (1985) 2 NWLR (PT. 7) 393 at 431. What this therefore amounts to is that acts of long possession are generally produced in evidence by the Defendant in defence of a claim of a declaration of title or of a Right of Occupancy by a Plaintiff.
That, of course is clearly not what the Respondents, by pleading and relying on acts of long possession have sought to do in this case.
However, under Section 146 of the Evidence Act, a Plaintiff who sues a defendant in trespass, ordinarily has the duty to prove that possession by prima facie evidence, which I am of the view here that the Respondents as Plaintiff have succeeded in doing in this case. But where the defendant also claims ownership of the land he is alleged to have trespassed on as it has been done in this case, then the evidential burden to prove his claim of ownership passes to that defendant. See the case of DACOSTA vs. IKOMI (1968) 1 ALL NLR, 394 at 398 and other decided cases in this regard.
In other words, in order to get the judgment of Court, the defendant has the onus to rebut the evidence of the Plaintiffs evidence of long possession and enjoyment. See also the case of ONYEKAONWU VS. EKWUBIRI (1966) 1 ALL NLR 32. The answer as to whether the defendant herein, as the Appellant in this case has been able to rebut the evidence of the Plaintiffs, who are Respondents, prima facie in the opinion of Court, i.e., has been able to prove sufficient acts of possession on its part, may not be farfetched.
The argument of Respondents Counsel and which this Court has no reason, to fault is that the Court below who had the opportunity of seeing the witnesses that testified before it believed the Respondents witnesses as witnesses of truth and the witnesses of the Appellant and indeed the Appellant as untruthful witnesses. See page 75 of the records, where the Court below held thus:
I have the benefit of seeing and hearing of all the witnesses who were called to testify by both Plaintiffs and Defendant. My observation from the demeanour of the witnesses is that PW2, PW3 and PW4 were witnesses of truth and spoke with no ill-will or motive other than declaring what they knew. The Defendant as DW6 and DW3 his son on the other hand did not impress this Court as witnesses who were prepared to say the truth. They gave the impression of persons who were trying to hold on to what belongs to another. I therefore reject their evidence on this fact and accept the testimonies of PW1, PW2, PW3, PW4, PW5 and PW7 as more probable of the facts of trust over the farmland in dispute.
Arising from the forgoing, I therefore find myself unable to fault the Court below for reaching the decision in which the Court gave judgment in favour of the Respondents as Plaintiffs. Consequently, this Appeal fails and it is therefore dismissed with cost of 50,000.00 in favour of the Respondents against the Appellant.
HUSSEIN MUKHTAR, J.C.A.: I have read, in advance, the lead judgment just delivered by my learned brother Frederick O. Oho, JCA. I agree with his reasoning and conclusion that the appeal is lacking in merit and deserves a dismissal order. It is accordingly so dismissed. I subscribe to the consequential orders as made in the judgment.
AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my learned brother, Fredrick O. Oho, JCA. I agree with his reasoning and conclusion that the appeal lacks merit. I adopt his reasoning as mine in dismissing the appeal and have nothing to add. I abide by the order as to cost.
Appearances:
L. M. PWAHOMDI ESQ. For Appellant(s)
IBRAHIM ABDULLAHI ESQ. For Respondent(s)
