GONIRAM v. SUNDAY (2020)

GONIRAM v. SUNDAY

(2020)LCN/14753(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/G/491/2018

RATIO

LAND LAW: REQUIREMENT FOR A PARTY TO PROVE HER ENTITLEMENT TO A DECLARATION OF POSSESSION AND OCCUPATION OF THE LAND IN DISPUTE

Therefore, in order for the Appellant to prove her entitlement to a declaration of possession and occupation of the land in dispute on the strength of her possession and occupation of the land as claimed, as opposed to the adverse claim of the Respondent who also contended that he owned the land having bought same and was also in possession, the Appellant was obliged to prove her title which entitled her to such possession and occupation of the land. This is settled law.
In the case of Regd. Trustees of the Apostolic Faith Mission V James (1987) LPELR-2946(SC) 35-36, E-A, the Supreme Court per Oputa, JSC held as follows –
“Since the only issue in this case is – as between the Plaintiffs and the Defendants, who has a better title? – it is necessary to investigate the parties respective roots of title. In any event, since the Plaintiffs claimed damages for trespass and perpetual injunction, they have put their title in issue for their claim to postulate that they are either the owners of the land in dispute or that before the trespass complained of, they were in exclusive possession of the land. The onus of proof was also definitely on the Plaintiffs.” (Emphasis supplied) PER HANNATU SANKEY, J.C.A.

LAND LAW: METHODS OF PROVING TITLE TO LAND

Therefore, by virtue of the authority of Idundun V Okumagba (1976) 10 SC 277, the locus classicus on the issue, title to land can be proved in one or more of the following five methods:

Proof by traditional history or traditional evidence of the history of the land, which includes mode of acquisition of same, for instance, by deforestation of the virgin forest by the first settler, conquest of the original owners through acts of war, gifts, e.t.c.
2. Proof by grant or the production of documents of title to the land.
3. Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land.
4. Proof by acts of long possession.
5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would, in addition, be the owner of the land in dispute.
See also Iseogbekun V Adelakun (2012) LPELR-15516(SC) 28-29, G-D, per Mukhtar, JSC; Dakolo V Rewane-Dakolo (2011) LPELR-915(SC) 23-24, E-D, per Rhodes-Vivour, JSC; Odunze V Nwosu (2007) LPELR-2252(SC) 67, C-F, per Onnoghen, JSC. PER HANNATU SANKEY, J.C.A.

LAND LAW: DUTY OF THE COURT WHEN A PARTY RELIES ON THE PRODUCTION OF DOCUMENTS AS WAY OF PROVING TITLE TO LAND

The production and reliance upon such a document of title or instrument of grant inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including:

Whether the document is genuine and valid;
ii. Whether it has been duly executed, stamped and registered;
iii. Whether the grantor had the authority and capacity to make the grant; and
iv. Whether it has the effect claimed by the holder of the document or instrument.
See Romaine V Romaine (1992) LPELR-2953(SC) 15-16, E-B, per Nnaemeka-Agu, JSC; Nwadike V Ibekwe (1987) 4 NWLR (Pt. 67) 718. PER HANNATU SANKEY, J.C.A.

LAND LAW: EFFECT OF PURCHASE RECEIPT IN LAND AGREEMENT

The law is that a purchase receipt is evidence that there was an agreement for the sale of land, and that consideration for the sale was paid by the purchaser. This endows upon the purchaser an equitable interest in the land, thereby giving him an equitable title. Thus generally, while a purchase receipt does not convey title or legal estate in a landed property to the purchaser, it can be tendered as proof of actual purchase or exchange of money between the vendor of the land and the purchaser. Thus, as an unregistered document which falls within Section 2 of the various Land Registration Laws, it can be admitted in evidence as a receipt or evidence of money transaction. Such a document cannot be used to prove title. However, where it is coupled with possession in appropriate cases, it may give rise to an equitable interest in the land. See Ishola V Oluwalogon (2013) LPELR-22206(CA) 48, per Tsammani, JCA; Enadeghe V Eweka (2014) LPELR-24479(CA) 9, D-E, per Ogunwumiju, JCA; Ero V Tinubu (2012) LPELR-7869(CA) 25-26, D-B, per Mshelia, JCA; Ayorinde V Fayoyin (2001) FWLR (Pt. 75) 483. PER HANNATU SANKEY, J.C.A.

COURT: PRIMARY DUTY OF THE TRIAL COURT

It is the bounden duty of a Court of trial to evaluate and ascribe probative value to the evidence adduced before it in coming to a decision, one way or the other, based on it. This assignment is an exclusive preserve of the trial Court. Thus, where a trial Court has unquestionably evaluated the evidence and properly appraised the facts of the case, an appellate Court would not interfere to substitute its views for the views of the trial Court – Okoye V Obiaso (2010) LPELR-2507(SC) 15, F-G, per Onnoghen, JSC; Anyegwu V Onuche (2009) LPELR-521(SC) 14-15, C-A, per Muhammad, JSC; Ayeni V State (2016) LPELR-40105(SC) 31, C-E, per Kekere-Ekun, JSC. PER HANNATU SANKEY, 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

HAJJA ZARA GONIRAM APPELANT(S)

And

ANTHONY SUNDAY RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering The Leading Judgment): This Appeal is against the Judgment of the High Court of Justice Borno State in Suit No. M/43/2004, delivered on March 5, 2018 by Mshelia, J.

Therein, the learned trial Judge dismissed the claim of the Appellant, (as Plaintiff), seeking a declaration of possession and occupation of land and an injunction against the Respondent (as Defendant).

A summary of the facts leading to the Appeal are as follows:
The Appellant commenced an action vide a Writ of summons on March 24, 2004 wherein she claimed title to a piece of land measuring 100x50ft lying and situate at Umarari Ward, Maiduguri. By her Statement of claim, she stated that she came into possession of the land when she purchased same from one Bulama Mala Kundili at the cost of N800.00 in 1984. She tendered a cash receipt, Exhibit A, in proof of her title. The contents of Exhibit A were in Hausa language and no English translation of same was placed before the trial Court. On the other hand, the Respondent contended that he acquired the land in dispute from Mrs. Jude Manbaka, and had been in

occupation and possession since his purchase. He also tendered a receipt of payment of purchase price and its English translation in proof thereof.

In proof of her claim, the Appellant called one witness and testified herself. As afore-stated, she tendered Exhibit A, a receipt of purchase, as her evidence of title. In his defence, the Respondent testified, called one other witness and tendered two Exhibits.

At the close of trial, the learned trial Judge delivered Judgement on March 5, 2018 wherein he dismissed the Appellant’s claim. Aggrieved by this decision, the Appellant appealed to this Court vide her Notice of Appeal filed on June 1, 2018 wherein she complained on four grounds. Therein, she sought the following relief:
“An order allowing the appeal by setting aside the Judgement of the trial Court and order for a retrial of the case before another Judge.”

At the hearing of the Appeal on October 15, 2020, the Appellant was not in Court neither was she represented by Counsel. This was in spite of the fact that her Counsel on Record, A.A. Modu Esq., had been duly notified electronically of the hearing of the Appeal on

this date.

Consequently, the Appellant’s Brief of argument dated 29-03-19 and filed on 03-04-19, settled by A.A. Modu Esq., was deemed duly argued pursuant to Order 19 of the Court of Appeal Rules, 2016.

On his part, D. Saleh Esq., learned Counsel for the Respondent, adopted the submissions in the Respondent’s Brief of argument dated 24-06-19 and filed on 28-06-19, settled by Nankham Ayuba Dammo Esq., in urging the Court to dismiss the Appeal for lacking in merit.

The Appellant in her Brief of argument formulated the following two issues for determination:
1. Whether the trial Court was right to raise an issue suo motu with regard to Exhibit A, [a] cash receipt, tendered by the Appellant, without affording [an] opportunity for the parties to address on it before delivering its Judgement. (Grounds 1 and 4)
2. Whether the Appellant, by her evidence at the trial Court, established and proved her case as required by law. (Grounds 2 and 3)

The Respondent adopted the issues formulated by the Appellant, however with the observation that ground four (4) of the Grounds of Appeal was not captured under issue one as indicated. He

therefore contended that it is deemed abandoned. Be that as it may, the Respondent failed to file a motion on notice to properly raise this objection, which would have enabled the Appellant to respond accordingly. Therefore, the issues framed are adopted in the resolution of this Appeal.

ARGUMENTS
Issue one – Whether the trial Court was right to raise an issue suo motu with regard to Exhibit A, [a] cash receipt, tendered by the Appellant, without affording [an] opportunity for the parties to address on it before delivering its Judgement.

Learned Counsel for the Appellant submits that the learned trial Judge raised the following issues suo motu in his Judgement and determined them without affording the parties an opportunity to address him on it before arriving at his decision:
a) That the cash receipt tendered by the Appellant in evidence as Exhibit A was written in Hausa language and therefore that the information endorsed on it is not in English, the language of the Court; and
b) That the pleading in paragraphs 3 and 4 of the Statement of claim describing the land as measuring 100 by 50 feet is not definitive enough to

identify the land.

Counsel submits that the trial Court by so doing, breached the Appellant’s right to fair hearing and that this has occasioned a miscarriage of justice. Reliance is placed on Def-Lam & Co V Osun State Govt (2006) 2 NWLR (Pt. 964) 211, 218-219, E-C; Araka V Ejeagwu (2000) 15 NWLR (Pt. 692) 684; Oro V Falade (1995) 5 NWLR (Pt. 396) 385; Effiom V CR SIEC (2010) All FWLR (Pt. 522) 1610, 1615. Counsel therefore urged the Court to resolve this issue in favour of the Appellant.

In response, learned Counsel for the Respondent submits that although the law is that, while a Court of law has no jurisdiction to raise and resolve any issue suo motu without hearing from the parties, where the issue so raised and resolved is covered by the pleadings and the evidence adduced, the Court is not guilty of raising and resolving it suo motu, because it is within its province to resolve issues placed before it properly by the pleadings and evidence.

Counsel submits that the trial Court, in resolving the issues of the language in which Exhibit A was written and the identity of the land claimed, did not raise and resolve them suo motu.

Instead, the issues are both products of the pleadings and the evidence of the parties placed before it. He submits that the trial Court resolved these in the exercise of its duty to appreciate, evaluate and analyse the evidence in line with the law, which it rightly did. He therefore urged the Court to so hold.

RESOLUTION OF ISSUE ONE
The simple question that is called for the determination of the Court under this issue is whether (i) by making findings on the Exhibit A, the receipt of purchase of land tendered by the Appellant (as Plaintiff) and (ii) by pronouncing on whether the piece of land in dispute had been properly identified sufficient to entitle the Appellant to her claim, the learned trial Judge raised the issues suo motu and resolved them without giving the parties an opportunity to address him on them. Before delving into these grievances of the Appellant, it is prudent to draw attention to the claim of the Appellant before the trial Court. As contained in paragraph 11 of the Statement of claim (pages 4 to 5 of the printed Record of Appeal), the Appellant claimed as follows –
11. WHEREOF the plaintiff claims from the

defendant as follows:-
a. A declaration that the plaintiff has a right of possession and occupation of that piece of land measuring 100 by 50ft being, lying and situate at Umarari ward Maiduguri.
b. An order declaring as wrongful, illegal and unconstitutional the defendant’s adverse claim to the piece of land and trespass there unto.
c. An order of injunction to restrain the defendant whether by himself, servants, agents, privies or howsoever from further trespassing into the land.
d. The cost of the suit.” (Emphasis supplied)

The facts upon which the Appellant grounded these reliefs can be found in the following paragraphs of her Statement of claim (at pages 3 to 9 of the Record) –
3. “The plaintiff states that she has a right of possession and occupation over a piece of land measuring 100 by 50 feet being, lying and situate at Umarari ward in Maiduguri.
4. The plaintiff avers that the land is located in an area which is less than 8 kilometres from the palace of the Shehu of Borno.
5. The plaintiff says that he became vested with title, possession and occupation of the land by virtue of sale of same

to him by one Alh. Mala Bulama Kundili at the rate of N800.00 (Eight Hundred Naira) only sometimes in the year 1984.
6. The plaintiff states that after paying the consideration for the land, he was issued a receipt number 0042 dated 18th September 1984 by Alhaji Mala Bulama Kunduli. The said receipts hereby pleaded.
7. …
8. The plaintiff pleads that after paying the purchase price of the land, he was put into possession of same by Alhaji Bulama Kunduli in the presence of Alhaji Mohammed Gonimi, Alhaji Mustapha and Alhaji Bukar Zarabe.
9. The plaintiff states that he had been in quiet possession of the land since 1984 until sometimes in the month of March, 2004 when the defendant not only started to trespass into same but has claimed title which is adverse to that of the plaintiff.” (Emphasis supplied)

In response to this claim, the Respondent filed an Amended Statement of defence (pages 19 to 20 of the Record of Appeal) wherein he denied the claim in all its material particulars. In particular, by paragraphs 2, 3, 4, 8, 9, 10 and 12 thereof, he states as follows:
1. “…
2. The Defendant in response to

paragraph[s] 3-10 of the statement of claim states that the land in possession and occupation of the Defendant has always and at all material times preceding this suit been in possession and occupation of the defendant who has always been the holder of the rights and interests in and upon the said land.
10. The defendant states further that he came into possession of the land when the Defendant bought the land in dispute from one Alhaji Musa Ibrahim, a Lawan in Shani, who is the agent of Mrs. Jude Manbaka also known as Jude Joseph whose husband Mr. Jude Manbaka is the owner of the premises.
11. Mr. Jude Manbaka had bought the said land from the then Bulama of Jajeri Ward where the land is situated through Alhaji Musa Ibrahim for the sum of N1, 400.00 (One Thousand Four Hundred Naira) only.
12. …
13. …
14. …
15. While the Defendant was in peaceful and quiet enjoyment and possession of the said land situated at Jajeri Ward the plaintiff started to lay claim to the land adverse to the defendant including harassing the defendant with thugs and all sorts of miscreant[s].
16. The plaintiff had never been in

possession of the land in dispute rather the defendant had been and has structures thereon and is still in possession of same.
17. The defendant has never trespassed and is not trespassing into and upon the plaintiff’s land which the defendant does not know but the defendant has always been in possession of his land.
18. …
19. The defendant contends that the plaintiff is not the holder of the right and interests in and upon the land the defendant is in possession and cannot therefore claim same and is not entitled to the reliefs being claimed.”

From the pleadings of the parties, issues were duly joined. While as submitted by the Appellant, it may be technically right to say that the Appellant did not expressly claim title to the land in question in the reliefs set out in her statement of claim, title was decidedly put in issue by the pleadings of the parties. Therefore, in order for the Appellant to prove her entitlement to a declaration of possession and occupation of the land in dispute on the strength of her possession and occupation of the land as claimed, as opposed to the adverse claim of the Respondent who also

contended that he owned the land having bought same and was also in possession, the Appellant was obliged to prove her title which entitled her to such possession and occupation of the land. This is settled law.
In the case of Regd. Trustees of the Apostolic Faith Mission V James (1987) LPELR-2946(SC) 35-36, E-A, the Supreme Court per Oputa, JSC held as follows –
“Since the only issue in this case is – as between the Plaintiffs and the Defendants, who has a better title? – it is necessary to investigate the parties respective roots of title. In any event, since the Plaintiffs claimed damages for trespass and perpetual injunction, they have put their title in issue for their claim to postulate that they are either the owners of the land in dispute or that before the trespass complained of, they were in exclusive possession of the land. The onus of proof was also definitely on the Plaintiffs.” (Emphasis supplied) Therefore, by virtue of the authority of Idundun V Okumagba (1976) 10 SC 277, the locus classicus on the issue, title to land can be proved in one or more of the following five methods:

Proof by traditional history or

traditional evidence of the history of the land, which includes mode of acquisition of same, for instance, by deforestation of the virgin forest by the first settler, conquest of the original owners through acts of war, gifts, e.t.c.
2. Proof by grant or the production of documents of title to the land.
3. Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land.
4. Proof by acts of long possession.
5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would, in addition, be the owner of the land in dispute.
See also Iseogbekun V Adelakun (2012) LPELR-15516(SC) 28-29, G-D, per Mukhtar, JSC; Dakolo V Rewane-Dakolo (2011) LPELR-915(SC) 23-24, E-D, per Rhodes-Vivour, JSC; Odunze V Nwosu (2007) LPELR-2252(SC) 67, C-F, per Onnoghen, JSC.
Therefore, in the instant case, the Appellant having put her title in issue by also claiming trespass and injunction, was obliged to prove her title to the land by one of the five ways enumerated

above. Indeed, one of the recognized ways of proof of title is by the production of documents of title or a valid instrument of grant. The production and reliance upon such a document of title or instrument of grant inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including:

Whether the document is genuine and valid;
ii. Whether it has been duly executed, stamped and registered;
iii. Whether the grantor had the authority and capacity to make the grant; and
iv. Whether it has the effect claimed by the holder of the document or instrument.
See Romaine V Romaine (1992) LPELR-2953(SC) 15-16, E-B, per Nnaemeka-Agu, JSC; Nwadike V Ibekwe (1987) 4 NWLR (Pt. 67) 718.

In the case under review, the Appellant produced her purchase receipt, Exhibit A, in proof of her ownership of the land. The law is that a purchase receipt is evidence that there was an agreement for the sale of land, and that consideration for the sale was paid by the purchaser. This endows upon the purchaser an equitable interest in the land, thereby giving him an equitable title. Thus generally, while a purchase

receipt does not convey title or legal estate in a landed property to the purchaser, it can be tendered as proof of actual purchase or exchange of money between the vendor of the land and the purchaser. Thus, as an unregistered document which falls within Section 2 of the various Land Registration Laws, it can be admitted in evidence as a receipt or evidence of money transaction. Such a document cannot be used to prove title. However, where it is coupled with possession in appropriate cases, it may give rise to an equitable interest in the land. See Ishola V Oluwalogon (2013) LPELR-22206(CA) 48, per Tsammani, JCA; Enadeghe V Eweka (2014) LPELR-24479(CA) 9, D-E, per Ogunwumiju, JCA; Ero V Tinubu (2012) LPELR-7869(CA) 25-26, D-B, per Mshelia, JCA; Ayorinde V Fayoyin (2001) FWLR (Pt. 75) 483.

From the pleadings and evidence adduced in proof thereof before the trial Court, the Appellant tendered her purchase receipt of the land to prove her ownership and possession of the land in dispute. Unfortunately for her however, the learned trial Judge in carrying out his judicial duty of evaluating and ascribing value to the document, found that he was unable to

proceed further as the document was not written in English, which is the language of the Court, but in Hausa language. It is based on this obstacle that he held as follows at pages 53 to 54 of the Record:
“Having regard to the evidence adduced by the Plaintiff in this matter, has the plaintiff discharged both the legal and evidential burden to warrant the consideration of the case of the defence? The case of the Plaintiff is anchored on purchase. And Exhibit A is tendered to prove the purchase. Exhibit A is not in the language of the Court and the Plaintiff did not make any effort to get the document translated into the language of the Court. Does this document commands (sic) any probative value before the Court? In the case of Lawson V Afani Const. Co, Ltd (2002) 2 NWLR (Pt. 752) 585, it was held that a document written in any language other than the language of the Court lacks probative value as the Court cannot utilise same in deciding the case. Exhibit A is therefore not helpful to the Court in this case.” (Emphasis supplied)

Based on the settled law on the subject, the learned trial Judge cannot be faulted in this finding. It is

absolutely erroneous for Counsel for the Appellant to contend that the learned trial Judge, by making this pronouncement in respect of the Exhibit A, raised an issue suo motu and decided it without affording the parties an opportunity to address on it. This is misconceived.
It is the bounden duty of a Court of trial to evaluate and ascribe probative value to the evidence adduced before it in coming to a decision, one way or the other, based on it. This assignment is an exclusive preserve of the trial Court. Thus, where a trial Court has unquestionably evaluated the evidence and properly appraised the facts of the case, an appellate Court would not interfere to substitute its views for the views of the trial Court – Okoye V Obiaso (2010) LPELR-2507(SC) 15, F-G, per Onnoghen, JSC; Anyegwu V Onuche (2009) LPELR-521(SC) 14-15, C-A, per Muhammad, JSC; Ayeni V State (2016) LPELR-40105(SC) 31, C-E, per Kekere-Ekun, JSC.
It was therefore in the performance of this judicial duty that the learned trial Judge examined the Exhibit A and evidently found it wanting in evidential worth as he could not even read it, much less ascribe any probative value thereto

because it was not written in the language of the Court, which is English; but was written in Hausa language. It was thus a worthless document in the proceedings.
There is certainly a dichotomy between the admissibility of documents and the probative value to be placed on them. While admissibility is based on relevance, probative value depends not only on relevance, but also on proof. Evidence has probative value only if it tends to prove an issue – ACN V Lamido (2012) LPELR-7825(SC) 37-38, B-A, per Fabiyi, JSC.
Thus, even though the purchase receipt was admitted in evidence, it turned out to have no probative value as it could not prove the Appellant’s assertion in her pleadings that she was in rightful possession and occupation of the land, over and above the right of the Respondent to the land.
As rightfully found by the learned trial Judge (at page 53 of the Record), by Sections 135 and 137 of the Evidence Act, 2011, in civil cases, the claimant succeeds on the strength of her case and so, cannot rely on any weakness in the defence. The same also applies to cases involving land disputes. It is well established that a person seeking

title to land bears the enormous duty in law to adduce credible and admissible evidence in establishing such title. The plaintiff must succeed on the strength of her own case, except where the evidence adduced by the defendant strongly supports her case – Ajiboye V Ishola (2006) LPELR-301(SC) 28, A-B, per Onnoghen, JSC; Ogbogwu V Aigbo (2013) LPELR-21196(CA) 24, B-D, per Mshelia, JCA.
Thus, based on the above authorities, it was surely not out of place for the learned trial Judge to pronounce on the credibility and viability of the Exhibit A, as he did. This in no way amounted to raising an issue suo motu and deciding it without inviting Counsel to address him on it.

The same principle of law applies mutatis mutandis to the issue of the identity of the land pronounced upon by the trial Court. It is also an age-long principle that any person claiming an interest in land must prove the exact location of the land and the precise area to which his claim relates. This is the foremost and fundamental duty on a claimant in a land dispute. In other words, the first duty of a claimant in a claim for title to land is to show clearly the area of

land to which his claim relates, as no Court will grant a declaration to an unidentified area. Title can only be granted in respect of a piece of land with definite, precise and accurate boundaries.
The Supreme Court in the case of Tukuru V Sabi (2013) Vol. 222 LRCN (Pt. 1) 87, A-K, per Onnoghen, JSC, stated as follows:
“It is settled law that the first duty of a Claimant of title to land is to show clearly the area of land which his claim relates, the exact boundaries, its extent, etc. The above requirement is not satisfied by merely tendering the Survey Plan of the land in dispute without adducing oral evidence as to the features on the land, the boundary neigbours, etc, particularly where the defence denies the identity of the land in dispute, as in the instant case. Apart from the requirement of certainty of the land claimed, it is also the duty of the plaintiff in a declaration of title suit to succeed on the strength of his case as he is not allowed to rely on the weakness of the defence except where the defence supports that of the plaintiff.” (Emphasis supplied)
See also Kolo V Lawan (2018) LPELR-44378(SC) 12, D-E, per

Ariwoola, JSC; Min. of Lands & Housing, Bauchi State V Tirwun (2017) LPELR-43314(CA) 19-20, C-B, per Abiru, JCA; Amadi V Nwosu (2014) LPELR-24428(CA) 83-84. F-D, per Agube, JCA; Ilona V Idakwo (2003) 18 NWLR (Pt. 830) 53; Odofin V Oni (2001) 3 NWLR (Pt. 701) 488; Adesanya V Aderonmu (2000) 9 NWLR (Pt. 672) 370.
It is instructive that in paragraph 10 of the Respondent’s Amended Statement of defence, the Respondent denies knowledge of the land claimed by the Appellant when he states:
10. “The defendant has never trespassed and is not trespassing into and upon the plaintiff’s land which the defendant does not know but the defendant has always been in possession of his land.” (Emphasis supplied)
By this averment, the Respondent stated that he was not sure of the land that was being claimed by the Appellant. However, that he has always been in possession of his own land. By this averment, it became even more imperative for the Appellant to prove with certainty the identity of the land to which she sought a declaration for possession and occupation. This was the finding of the Supreme Court in Nwokorobia V Nwogu (2009)

LPELR-2127(SC) 16, E-F, per Mukhtar, JSC as follows:
“The cardinal principle of law is that in a claim of declaration of title to land, a party must prove the identity of the land he is claiming with definitive certainty. Proof can be by evidence of the boundary men of the land in dispute, and a plan.” (Emphasis supplied)
Once again, this evaluation of the evidence placed before the lower Court by the learned trial Judge does not amount to raising an issue suo motu as has been contended by the Appellant. The submission is misconceived. Therefore, based on all the above, I resolve issue one against the Appellant.

Issue two – Whether the Appellant by her evidence at the trial Court established and proved her case as required by law.
Learned Counsel for the Appellant submits that by the evidence of PW1, PW2 and the Exhibit A, she had proved her case before the trial Court and discharged the burden placed on her by law – Agboola V UBA (2011) 45 NSCQR 312, 341.

Counsel submits that the trial Court however failed to properly evaluate the evidence of the Appellant, especially the testimonies of the witnesses and also to

weigh this evidence vis-a-vis that of the Respondent by placing it on an imaginary scale – Olaleye V Trustee of ECWA (2011) All FWLR (Pt. 565) 297, 300, F-G; Delta State V Ogogo (2006) 2 NWLR (Pt. 964) 366, 320, C-D. He therefore invited the Court to intervene and re-evaluate the evidence.

Finally, Counsel submits that as a result of the non-evaluation of the evidence, the trial Court failed to pronounce on all the issues raised before the Court at the trial – Ovunwo V Woko (2011) NSCQR Vol. 46 (Pt. 1) 517, 521, A-C. He therefore urged the Court to resolve issue two in favour of the Appellant. In conclusion, Counsel prayed the Court to set aside the Judgement and make an order for a retrial.

In response, learned Counsel for the Respondent submits that the Appellant did not place any credible evidence before the Court in the establishment of her entitlement to the reliefs claimed, and so the trial Court rightly entered Judgement dismissing the Appellant’s claim.

Counsel submits that Exhibit A placed before the Court by the Appellant is worthless, same being in Hausa language which is not in the language of the Court. It could therefore

not be considered by the trial Court – Iwambe V Swande (2002) FWLR (Pt. 85) 355, 364-365; Damina V State (1995) 8 NWLR (Pt. 415) 513, 530-540, 546. The Appellant had therefore not placed any credible evidence of purchase of the land claimed before the trial Court. In addition to which the receipt of purchase is not sufficient to establish title – Otanma V Youdubagha (2006) 2 NWLR (Pt. 964) 337, 359.

Counsel also submits that in order to prove title to land, the Plaintiff has a duty to prove clearly and unequivocally the area to which he claims title – Ayuya V Yonrin (2011) 10 NWLR (Pt. 1254) 135, 166; Nruama V Ebuzoeme (2006) 9 NWLR (Pt. 985) 217, 232.

In spite of this, the Appellant’s pleadings and evidence only claimed a piece of land measuring 100 by 50 feet lying and situate at Umarari Ward, Maiduguri. Thus, she did not place credible evidence before the Court properly identifying the land claimed, as it was neither identified nor ascertained by its dimensions and locality. Thus, the Appellant cannot be said to have established her claim of title to be entitled to the relief claimed. So, the trial Court was right to have refused to grant

the claim. Counsel therefore urged the Court to dismiss the claim for lacking in merit and uphold the decision of the trial Court.

RESOLUTION OF ISSUE TWO
In the determination of this issue, I adopt in toto my findings under issue one above. Thus, the Exhibit A, being the document of title offered by Appellant in proof of her purchase of the land, having been rightly found to be worthless and without any value; and there being no evidence offered by the Appellant to prove definitively and with precision the identity of the land, the learned trial Judge rightly found that there was a dearth of credible evidence in proof of the claim.

Therefore, I agree with the finding of the learned trial Judge at pages 54-55 of the Record that the Appellant failed to discharge both the legal and evidential burden placed on her as Plaintiff, to warrant an evaluation of the defence offered by the Respondent.

As has been over-flogged in my findings above, the Appellant in a case of this nature, must succeed on the strength of her case and not rely on the weakness, if any, of the defence. Where the Appellant has failed to adduce any credible evidence in

proof of her claim, it is unwarranted and a wasted venture to conjure up the imaginary scale, as there is nothing to weigh or place on the Plaintiff’s side of the scale. It is therefore for these reasons that I also resolve issue two against the Appellant.

In the result, having resolved both issues against the Appellant, I find the Appeal bereft of merit. It fails and is dismissed.
Consequently, the Judgement of the High Court of Borno State in Suit No. M/43/2004 between Hajja Zara Goniram V Mr. Anthony Sunday, delivered on March 5, 2018, Coram: Mshelia, J., is hereby affirmed.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I read before now the judgment just delivered by my learned brother SANKEY JCA. This appeal is mostly hinged on the purchase receipt exhibit A tendered by the Appellant. This receipt was written in Hausa Language. The Apex Court in treating this issue agreed that the official language of the Superior Courts of record in Nigeria is English. In Ojengbede vs Esan (2001) 18 NWLR pt 746 pg 271 Iguh JSC opined that
“If documents written in any language other than English are to be

tendered properly or used in evidence they must be only translated into English Language and to be tendered and properly used in evidence, they must be only translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court.
A Court cannot on its own engage in the translation and in interpretation of a document written in a language other than English. The Court is precluded from performing the role of a witness and the arbiter at the same time in the same proceedings.
In this appeal, the Appellant did not afford the Court a translated purchase receipt written in Hausa. The trial judge is also precluded from doing the interpretation himself even where he could.
Exhibit A which I believe the Appellant relied on to prove her title to the land in dispute could not help her.

With this and the more robust reasoning in the lead judgment, I too must also hold that the Appellant failed in proof of her claims against the Respondent.

This appeal is unmeritorious. It fails and is hereby dismissed. The judgment of the High Court delivered

on 5th March 2018 by Mshelia J. is hereby affirmed.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.

I am in agreement with the reasoning which I find to be meticulous. The conclusion reached by his Lordship that the Appellant did not prove her case accords with the record of appeal before the Court. Of the five methods by which title to land can be proved, the Appellant opted for production of title document. In this case, the Appellant’s title document is the agreement for the sale of the land to her which was admitted in evidence as Exhibit “A”. It is however in Hausa language, and as such the lower Court rightly declined to accord probative value to it since it is not in the language of the Court. See the case of Lawson vs. Afani Const. Co. Ltd (2002) 2 NWLR (Pt. 752) 285.

For this and other reasons fully considered in the lead Judgment, his Lordship found no merit in the appeal. I adopt this finding, and also hold this appeal to be without merit and dismiss same; and inconsequence affirm the Judgment of the trial Court.

Appearances:

…For Appellant(s)

Saleh, Esq. For Respondent(s)