HABIB ALHAJI BUKAR v. ALHAJI BASHIR
(2013)LCN/6326(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2013
CA/J/216/2002
JUSTICES
RAPHEAL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
HABIB ALHAJI BUKAR Appellant(s)
AND
ALHAJI BASHIR Respondent(s)
RATIO
THE BURDEN OF PROOF IN CIVIL MATTERS
I am in agreement with Bukar Esquire for the respondent that in civil cases the general principles of law is that he who asserts or claims has the initial burden of proof. Sections 131 to 136 of the Evidence Act, 2011 are very clear on this burden as requirement of the law in civil proceedings. In Onyenge & Ors. v. Ebu & Ors. (2004) 11 MJSC P.184 @ 1996, the Supreme Court; per Tobi J.S.C. said:
“The burden of proof in a civil matter such as this is on the party who could be the plaintiff or the defendant; depending on the state of the pleadings. In other words, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side.
While the first burden is on the party who alleged the affirmative in the pleadings, the second burden, the evidential burden, lies on the adverse party to prove the negative.” See also Fashanu v. Adekoya 1974 6 S.C. 83 and Ajana V. Amu 1974 10 S.C. 237. PER BDLIYA, J.C.A.
WAYS OF ESTABLISHING TITLE OF OWNERSHIP OF A LAND IN DISPUTE
Did the appellant prove his title to the land in dispute? There are five (5) ways of proving title to land which have been enunciated in a plethora of authorities by the superior court. For instance, Idundun v. Okumagba (1976) 9 – 10 S.C. P.227; Nkado v. Obiamo (1997) 5 NWLR Pt. 503 P. 31; and Manu v. Shanono (2006) 4 NWLR Pt. 969 p. 132 @ 148 where the five (5) ways of proving title to land have been listed to be:
(i) by traditional evidence, or
(ii) by production of documents of title which are duly authenticated, or
(iii) by acts of selling, leasing, renting out all or part of the land, or farming on it or on portion of it, or
(iv) by acts of long possession and enjoyment of the land, or
(v) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition, be the owner of the land in dispute. PER BDLIYA, J.C.A.
THE DUTY OF THE TRIAL COURT TO EVALAUTAE EVIDENCE OF WITNESSES BEFORE IT
A trial judge has the duty or responsibility to make findings of facts and evaluate evidence before it in arriving at a decision. An appellate court should not interfere with the findings of fact and or evaluation of evidence whereby the credibility of witnesses/ ascription of probative value and the acceptance or rejection of evidence are properly carried out by a trial court. It is not the business of an appellate court to interfere unless it can be shown that the trial court did not evaluate the evidence or if it did, not properly done having regard to the applicable principles of law to the pleadings. In Mainagge v. Gwamma (2004) 12 MJSC, the Supreme Court stated that the law is settled that the evaluation of evidence is the primary function or duty of a trial judge. Interference by an appellate court could only occur where and when the trial judge failed to evaluate the evidence at all or he failed to do so properly.
Where the trial judge has satisfactorily performed his primary function of evaluating and ascribing probative value to it, an appellate court has no business interfering with such findings and ascription of probative value thereto. See also Abisii v. Ekwea & Or. (1943) 6 NWLR Pt. 302 p. 360; Obido V. Ogba (1987) 2 NWLR Pt.50 P.1; Eze v. Okaloagu (2010)3NWLR Pt. 1180 p. 183 @ 218; Onwuka v. Ediala (1989) 1 NWLR Pt. 96 P.182 and Kazeem V. Masaka & Ors. (2007) 17 NWLR Pt. 1064 p.523 @ 545. PER BDLIYA, J.C.A.
IBRAHIM SHATA BDLIYA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Borno State High Court (hereinafter referred to as the trial court) in suit No. M/63/93 delivered on 13th day of June, 1997. The appellant was the plaintiff before the trial court. He sued the respondent (then defendant) seeking for a declaration of title to the land in dispute, injunction order and general damages for trespass. His claim was predicated on long possession and acts of ownership having inherited the land from his father. On the other hand, the respondent asserted that he purchased the land through Alhaji Shugaban Darman who was granted right of occupation by the Maiduguri Metropolitan Council and the Borno State Government. After the exchange of pleadings the matter went to trial. Both parties called witnesses and tendered exhibits in support of their respective claims. The learned trial judge, after the address of learned counsel, delivered his judgment on 13th of the June, 1997, refusing all the reliefs sought by the appellant, and entered judgment in favour of the respondent. Dissatisfied with the judgment, the appellant appealed to this Court vide a Notice of appeal dated 18th June, 1997 and filed on same date.
There are four (4) grounds of appeal. The grounds of appeal without their Particulars are:
1. The learned judge erred in law when he held that “…
In this case the plaintiff in my opinion has woefully failed to discharge the burden placed on him to prove that the land belongs to his father because of all the five witnesses including himself who testified in proof of the case none could tell this court how his father got the land. I uphold the submissions of the learned counsel for the defendant that what the plaintiff and his witnesses told this court are all hearsay.”
2. The learned judge erred in law when he held that … I “hold here that the defendant is not the person to be asked why ht is using it for private other than for what is granted. It is the Government of Borno State and Maiduguri Metropolitan that should be confronted why the allotees including the defendant are using for private instead for commercial use as it appears in Exhibit ‘E’ …”
3. The learned judge erred in law when he held that “…
As for compensation not been paid if the plaintiff feels his land had been acquired, he should produce evidence to that effect and sue government for compensation.”
4. The learned judge erred in law when he held that “…
The defendant in my view has proved that his land is situate at Kula Gumna as per exhibit ‘E’ which is the consent of to grant conveyed to the Metropolitan to acquire said land and allocate same to people. The defendant has exhibited documents entitling him the ownership of the land in dispute … The evidence is over whelming in favour of the defendant and he has proved to the court that he is the owner of this land … I declare the land to be that of Alhaji Bashir.”
The appellant filed his brief of argument on 28th October, 2002.
The respondent filed his brief of argument on 19th February, 2007.
In it he gave notice of preliminary objection to the competence of grounds 2 and 3 of the grounds of appeal. The appellant filed a Reply brief on the 2nd of July, 2009. The appeal was heard on the 11th of April, 2013. Learned counsel to the parties adopted their respective briefs of argument including that on preliminary objection and the Reply thereto. Learned counsel to the appellant did urge to court to allow the appeal, set aside the judgment of the trial court and enter judgment in favour of the appellant. Learned counsel to the respondent urged the court to dismiss the appeal and affirm the judgment of the trial court.
In the appellant’s brief of argument five (5) Issues were formulated for the determination of the court. They are as follows:
1. Whether the plaintiff did not discharge the burden of proof placed on him as required by law.
2. Whether the defendant cannot be challenged for being allocated a land acquired for public purpose from the plaintiff or another individual.
3. Whether it is the plaintiff that ought to produce evidence of payment of compensation.
4. Whether the lower court was right in declaring the Defendant the owner of the land.
5. Whether the judgment is not against the weight of evidence or whether the lower court properly evaluated the evidence before her.
The respondent’s grounds for the preliminary objection and issues formulated for determination are thus:
Notice of Preliminary Objection and Grounds therefor:
“TAKE NOTICE that the respondent herein intends to at the hearing of this appeal rely on a preliminary objection to the competence of grounds 2 and 3 of the grounds of appeal notice of which is hereby given.”
Issues for determination in the Preliminary Objection:
“Whether grounds 2 and 3 from which issues 2.3 and 2.4 (see page 1 of appellant’s brief) were formulated are competent.
It is trite that parties are bound by their pleadings.
Any issue not pleaded or canvassed at the trial court without leave of court cannot be raised. Grounds 2 and 3 of the appellant’s grounds of appeal being new issues not pleaded or canvassed at the trial cannot therefore be raised on appeal. Having been so raised by the appellant without leave, same are incompetent.”
The respondent argued the preliminary objection on pages 2 to 3 of the briefs of argument. He did urge the court to uphold the preliminary objection and to strike out grounds 2 and 3 of the grounds of appeal. Issues formulated therein and arguments canvassed thereon be discountenanced by the court. The appellant, in his Reply brief did urge the court to over-rule the preliminary objection as it is a misconception of the law, having no merit.
After a dispassionate consideration of the notice of preliminary objection, the grounds relied on and the arguments canvassed therefore, I am of the view that there is no substance worthy of consideration which could sustain the objection raised by the respondent. In my view, the two (2) grounds of appeal are based on or related to the findings and decision arrived at by the learned trial judge. Having not sustained the preliminary objection, the issues related to the two (2) grounds of appeal, are competent for determination in the appeal by the court.
The two (2) issues for determination as formulated by the respondent are:
1. Whether having regard to the pleading and evidence, the trial court was justified in dismissing the Plaintiff’s claims.
2. Whether the plaintiff has established the location and boundaries of the land in dispute to warrant the reliefs claimed.
The issues formulated by learned counsel to the parties in their briefs could be comprised as follows for the determination of the appeal.
(1) Whether having regard to the pleadings and evidence, the learned trial judge was right or justified in dismissing the appellant’s claims having not discharged the burden of proof as required by law?
(2) Whether the respondent can not be challenged for claiming title to a land acquired from the appellant for public purpose but which was allocated to an individual for Private Purpose?
(3) Whether the onus of proving that compensation was paid by the Government of Borno State for the acquisition of the land in dispute is on the appellant?
(4) Whether the learned trial judge was right in declaring the respondent owner of the land in dispute in view of the provisions of Section 1(a) of the Land Use Act?
(5) Whether the learned trial judge properly evaluated the evidence adduced before him before arriving at his decision?
RESOLUTION OF ISSUES
ISSUE ONE (1)
Whether having regard to the pleadings and the evidence adduced, the learned trial judge was right or justified in dismissing the appellant’s claims having not discharged the burden of Proof as required by law.
On page 16 of the supplementary record of appeal, the learned trial judge found and held as follows:
“The evidence is overwhelming in favour of the defendant and he has proved to the court that he is the owner of the land and in view of the evidence before the court and the reasons given above, I declare the land to be that of Alhaji Bashir. The case of the plaintiff is hereby dismissed with cost of N 1000,00 against the plaintiff and in favour of the defendant.”
Was the learned trial judge right or justified in arriving as the findings and decision supra, having regard to the pleadings and the evidence adduced by the parties before the trial court?
Mark Esquire adumbrated that the appellant had adduced credible evidence in support of the averments contained in paragraphs 6 and 7 of the Amended statement of claim. The appellant had therefore discharged the burden of proof required by section 137 0f the Evidence Act 2004. It was his further contention that the claim of title by the appellant was predicated on long possession and acts of ownership numerous and over a lengthy period of time which are among the 5 ways or means of proving title to land as enunciated in several decided authorities of the courts. He cited the cases of Kyari V. Alkali (2001) FWLR Pt.60 P.1481 and Idundun v. Okumagba 1976 NSC P. 445 to reinforce his submissions supra. Learned counsel went on to canvass that all that the appellant needed to prove to be entitled to judgment is that:
(i) his late father owned the land
(ii) his father was in active possession
(iii) his father exercised acts of ownership over a length of time
(iv) long possession and enjoyment of the land by his father
(v) he inherited the land from his father, and
(vi) the location and boundary of the land.
It was his contention that the appellant did plead and adduced evidence per pw2 on page 11 lines 21 – 25 of the record of appeal proving the above requirements entitling him to the relief sought in paragraph 13 the Amended statement of claim. Mark Esquire was of the view that the appellant did not rely on traditional history or evidence in claiming titre to the disputed land, therefore, he can not be expected to establish how his father founded and owned the land’ He was therefore of the view that the finding of the learned trial judge that the evidence of PW2 amounted to hearsay was unwarranted. It was his submission that since there is no pleadings on the purchase of the land, the evidence of PW2 on it ought not go to any issue. The case of Olchuarobo V. Aigbe (2002) FWLR Pt.16 P.869 was cited to buttress the submission supra. It was his contention that the evidence of PW2 is not hearsay since it is in accordance with the provisions of section 145 of Evidence Act, 2004 and the decision in the case of Kyari V. Alkali supra.
Bukar Esquire, submitted that having regard to the reliefs sought by the appellant in his paragraph 13 of the Amended statement of claim, the onus of proving same squarely lies on him.
The case of Nwodiogbu v. Nnadozine (2001) 12 NWLR Pt.737 P.315 @ 327 was cited in aid. It was his further contention that the averments in paragraphs 3, 6 and 7 of the Amended statement of claim have not been substantiated by credible evidence. He has the onus of proving same having been denied by the respondent. It was submitted that the appellant ought to adduce evidence, which he did not on his root of title, in order to be entitled to the relief sought.
The case of Owhonda v. Ekpenchi (2003) 17 NWLR Pt. 849 P.326 @ 347 and Ige v. Fagbohun (2001) 10 NWLR Pt.721 P.472 @ 486 were relied upon. It was further submitted that the evidence of PW2 can not be relied upon to prove title of the appellant having not been pleaded. Having not proved his root of title, the reliance on acts of possession, no matter the duration, can not be the basis for declaring title to land. The cases of Yusuf v. Kude (2002) 6 NWLR. pt. 762 p.231 @ 253 and Adisa v. Onyinaola (2000) 11 NWLR Pt.674 P.116 were cited to buttress the submissions supra.
Bukar Esquire further adumbrated that in order to succeed the appellant ought to have adduced credible evidence on acts such as farming on the land, leasing it or renting it or part thereof extending over a sufficient length of time numerous and positive enough to warrant the conclusion or inference that he was the owner of such land. Since there is no evidence on the above requirements of the law, he can not be entitled to the relief sought. The cases of Duru v. Onwenmulu (2001) 18 NWLR pt. 746 P. 672; Ejem v. Ofia (2002) 7 NWLR Pt. 666 P.662 and Anyanwu v. Mbara (1992) 5 NWLR Pt. 242 P. 386 were cited and relied upon.
It was contended on behalf of the respondent that the evidence of DW1 and DW2 supported his claim of title based on allocation or grant of the land to the original allotee or grantee. Learned counsel therefore submitted that the learned trial judge was right when he held on page 92 lines 38 48 of the record of appeal that the appellant did not prove his title to the land in dispute. The court has been urged to uphold the findings and decision of the trial court accordingly.
I am in agreement with Bukar Esquire for the respondent that in civil cases the general principles of law is that he who asserts or claims has the initial burden of proof. Sections 131 to 136 of the Evidence Act, 2011 are very clear on this burden as requirement of the law in civil proceedings. In Onyenge & Ors. v. Ebu & Ors. (2004) 11 MJSC P.184 @ 1996, the Supreme Court; per Tobi J.S.C. said:
“The burden of proof in a civil matter such as this is on the party who could be the plaintiff or the defendant; depending on the state of the pleadings. In other words, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side.
While the first burden is on the party who alleged the affirmative in the pleadings, the second burden, the evidential burden, lies on the adverse party to prove the negative.” See also Fashanu v. Adekoya 1974 6 S.C. 83 and Ajana V. Amu 1974 10 S.C. 237.
Did the appellant prove his title to the land in dispute? There are five (5) ways of proving title to land which have been enunciated in a plethora of authorities by the superior court. For instance, Idundun v. Okumagba (1976) 9 – 10 S.C. P.227; Nkado v. Obiamo (1997) 5 NWLR Pt. 503 P. 31; and Manu v. Shanono (2006) 4 NWLR Pt. 969 p. 132 @ 148 where the five (5) ways of proving title to land have been listed to be:
(i) by traditional evidence, or
(ii) by production of documents of title which are duly authenticated, or
(iii) by acts of selling, leasing, renting out all or part of the land, or farming on it or on portion of it, or
(iv) by acts of long possession and enjoyment of the land, or
(v) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition, be the owner of the land in dispute.
By the pleadings in paragraph 3 of the Amended statement of claim, the appellant predicated his claim of title to the land on inheritance. That he inherited the land from his father who has been in long possession and farming on it by planting cassava, rice, pawpaw, and oranges. See paragraphs 6 and 7 of the Amended statement of claim. The respondent’s defence to the claim of the appellant is that he purchased the land from someone who got it from one Shugaban Darman who was allocated same by the Maiduguri Metropolitan council, on the pleadings and the evidence adduced by the parties at the trial, who among them has had proved a better title. The findings and conclusion of the learned trial judge on pages 15 – 16 of the supplementary record of appeal is very instructive. This is what the learned trial judge said:
“From the totality of the evidence adduced in this case that of the defendant far outweighs that of the plaintiff. The defendant has proved to the court with the documents in respect of this land that it was acquired by the Metropolitan council Maiduguri in 1981 add the government consent was obtained by the said Maiduguri Metropolitan as per exhibit ‘E’ and it allocated same to Alhaji Shugaba Darman who was subsequently issued the certificate of occupancy before he sold it to the defendant who effected the change of name as exhibits C and D. The evidence is overwhelming in favour of the defendant and he has proved to the Court that he is the owner of this land and inview of the evidence before the Court and the reasons given above. I declare the land to be that of Alhaji Bashir. The case of the Plaintiff is hereby dismissed with cost of N1,000,00 against the plaintiff and in favour of the defendant.”
A trial judge has the duty or responsibility to make findings of facts and evaluate evidence before it in arriving at a decision. An appellate court should not interfere with the findings of fact and or evaluation of evidence whereby the credibility of witnesses/ ascription of probative value and the acceptance or rejection of evidence are properly carried out by a trial court. It is not the business of an appellate court to interfere unless it can be shown that the trial court did not evaluate the evidence or if it did, not properly done having regard to the applicable principles of law to the pleadings. In Mainagge v. Gwamma (2004) 12 MJSC, the Supreme Court stated that the law is settled that the evaluation of evidence is the primary function or duty of a trial judge. Interference by an appellate court could only occur where and when the trial judge failed to evaluate the evidence at all or he failed to do so properly.
Where the trial judge has satisfactorily performed his primary function of evaluating and ascribing probative value to it, an appellate court has no business interfering with such findings and ascription of probative value thereto. See also Abisii v. Ekwea & Or. (1943) 6 NWLR Pt. 302 p. 360; Obido V. Ogba (1987) 2 NWLR Pt.50 P.1; Eze v. Okaloagu (2010)3NWLR Pt. 1180 p. 183 @ 218; Onwuka v. Ediala (1989) 1 NWLR Pt. 96 P.182 and Kazeem V. Masaka & Ors. (2007) 17 NWLR Pt. 1064 p.523 @ 545.
On pages 15 to 16 of the supplementary record of appeal, which is part of the judgment, the learned trial judge dispassionately reviewed the evidence adduced by the parties, made findings and gave reasons why he preferred the evidence of the respondent, then that of the appellant on the ownership of the land in dispute. I find it difficult to fault the evaluation of the evidence by the learned trial judge. In my view, the learned trial judge had satisfactorily performed his duty or function expected of him. The learned trial judge had adequately considered the evidence on the assertion of the appellant that he inherited the land from his late father, and rejected it as having not been pleaded and proved by credible evidence, The learned trial judge did consider the claim of long possession and acts of ownership, and rejected same for want of credible evidence. In view of the foregoing, I am of the firm view that the learned trial judge arrived at a just and fair decision when he arrived at the conclusion on pages 15 – 16 of the supplementary record of appeal, that is, the claim of title to the land by the appellant was not proved, rather, he preferred the evidence of the respondent, and in consequence, entered judgment in his favour. I therefore, find no difficulty in resolving Issue 1 against the appellant.
ISSUE 2
whether the respondent can not be challenged for claiming title to a land acquired from the appellant for public purpose but which was allocated to an individual for private purpose.
On this issue, Mark Esquire, for the appellant submitted that by Exhibit ‘E’ the piece of land in dispute was acquired for public purpose, however, it was allocated to an individual for private purpose. It was his contention that when a land has been acquired for public purpose, such land can not be allocated or be used for private purpose, therefore, the allocation of the land to one Alhaji Shugaba Abdulrahman (Darman) from whom the respondent acquired title can not be legally valid in law. The case of Tunde v. Mil. Governor Oyo State & Ors. (1995) 5 NWLR Pt. 397 p.586 @ 510 was cited to buttress the submission supra. Learned counsel further submitted that both the Borno state Government and the Maiduguri Metropolitan council have no legal authority to acquire land for public purpose but later allocated or granted a right of occupancy to private individuals. In view of the foregoing, the respondent had not acquired a valid legal title to the land in dispute.
The court has been urged to resolve this issue against the respondent.
The appellant’s claim of title to the land in dispute is predicated on the averments contained in paragraphs 3, 6 and 7 of the Amended statement of claim on page 5 of the record of appeal. To appreciate and comprehend the basis of the appellant’s claim of title to the said land, the averments in these paragraphs are reproduced hereunder:
“3. The plaintiff states that he inherited the plot of land in dispute from his deceased father Alhaji Bukar Mai Albasa about two and a half Years ago.
6. The plaintiff states that his deceased father had throughout his life been in active possession of the plot of land in question.
7. The plaintiff states that his deceased father Alhaji Bukar Mai Albasa used to plant cassava, rice, pawpaw and oranges etc on the said Plot of land.”
Did the appellant adduce credible, reliable and cogent evidence substantiating or proving the averments in the pleadings supra? The appellant testified as PW1. Three (3) other witnesses testified on his behalf, see pages 10 to 14 of the record of appeal. The learned trial judge, after reviewing and evaluation of the evidence adduced by the appellant, found and held as follows on page 15 lines 3 – 27 of the supplementary record of appeal:
“Having considered the above findings, it is obvious that the plaintiff who is claiming this land is bound to prove his title, see the case of ADEGBITE V. OGUNFAO MIU SUPRA.
In this case the plaintiff in my opinion has woefully failed to discharge the burden placed on him to prove that the land belongs to his father because of all the five witnesses including himself who testified in proof of the case none could tell this court how his father got the land. I uphold the submissions of the learned counsel for the defendant that what the plaintiff and his witnesses told this court are all hearsay. The defendant in my view has proved that this land is situate at Kula Gumna as per exhibit ‘E’ which is the consent of the grant conveyed to the Metropolitan to acquire said land and allocate same to people. The defendant has exhibited documents entitling him the ownership of the land in dispute as held in the case of ASEINO & ORS. V. ABRAHAM & ORS. cited supra, where the Court of Appeal Jos Division held that “where two parties claim to be in possession of land, the Law ascribed possession to the one with better title”. In this case the plaintiff has nothing except hearsay evidence to show the court that the land belongs to him having inherited it from his father, The plaintiff himself did not even tell the court how his father got the land except for PW2 and PW5 who said they heard that his father bought the land from Hajja Falta sometimes in 1937, while the defendant on the other traced the root of his title and tendered before this court documents entitling him the ownership of this land.”
The resume or gist of the learned trial judge’s findings and decision supra, is that:
(i) the appellant did not plead sufficient or adequate facts in his pleadings to support his evidence on the claim of title through his father by inheritance.
(ii) No credible evidence was adduced in support of the claim of title by long possession or acts of ownership numerous and over a lengthy period of time, or other acts of ownership such as leasing, farming, or renting of the land or part thereof to warrant the conclusion that he owned the land or it belonged to him.
I have had earlier in this judgment when dealing with the first issue considered the pleadings of the appellant and the evidence adduced in support. I have had agreed with the learned trial judge that the appellant did not plead sufficient facts to support his claim of title through inheritance or the ownership of the land in dispute by his father by long possession or acts of ownership. The law is trite that a claim of title through inheritance must be supported by sufficient pleaded facts showing who founded the land; how it was founded; the person who owned the land from the founder up to the time it became vested in the appellant. Where sufficient facts have not been pleaded disclosing the above requirements, any evidence adduced on such source of claim of title go to no issue. See Okegbemi v. Akintola (2008) 4 NWLR Pt. 1076 p. 53 @ 68; Oyadare v. Keji (2005) 7 NWLR Pt.925 P.571; Ojoh v. Kamalu (2005) 18 NWLR pt. 958 p. 529; Akinloye v. Eyiyola (1968) NWLR p. 92; Lawal v. Olufowobi (1995) 10 NWLR Pt.477 p. 177 and Ibikunle v. Lawani (2007) 3 NWLR Pt. 1022 p.580 @ 599.
The learned trial judge made findings of facts, evaluated the evidence adduced by the appellant before arriving at his decision on pages 15 – 16 of the record of appeal. An appellate court, as this court is, should not, and can not interfere with findings of facts and the evaluation of evidence by a trial court whereby probative value has been ascribed therefor unless there are good reasons to do so, that is, if the trial court failed to perform its duty of evaluating the evidence at all, or if done, not properly. In Okegbemi v. Akintola (2008) 4 NWLR pt. 1076 p.53 @ 68, this court, per Mohammad J.C.A, (as he then was) had this to say:
“As pointed out earlier, findings of facts made by a trial court are entitled to be respected by an appellate court, particularly when it is clear that the trial court had performed its primary duty of evaluating and ascribing probative values to the evidence before it properly.”
I am of the view that this Court should not, and can not interfere with the findings and conclusion of the learned trial judge on pages 15 – 16 of the supplementary record of appeal for the reasons advanced herein in this judgment. This means that the decision reached or arrived at by the learned trial judge as to the claim of title to the land in dispute stands. Having not proved his title to the land in dispute, can the appellant challenged the title of the respondent, which the learned trial judge had found to have been established by credible and cogent evidence? I do not think so. The issue of whether the land was acquired for public purpose but was allocated to an individual for private purpose become otiose since the appellant has had failed to prove his title to the said land. The title of the appellant must be established first before considering his assertion that the land was acquired for public purpose but utilized for a different purpose. The case of Tunde v. Mil. Gov. of Oyo State & Ors. (1995) 5 NWLR pt.79 p.585 cited and relied upon by learned counsel of the appellant on the acquisition of land for public purpose but utilized for private purpose is not on all fours with the appeal at hand. In that case supra the ownership or title of the appellant was not in dispute. In this case it is so. Therefore, having not proved his title to the land in dispute the appellant can not successfully challenge the title of the respondent in view of the decision arrived at by the learned trial judge on the matter which, I, too, agreed. This issue is therefore resolve against the appellant.
ISSUE THREE
Whether or not the onus of proving that compensation was paid by the Borno state Government/or the Maiduguri Metropolitan council for the acquisition of the land in dispute is on the appellant?
On this issue, Mark Esquire submitted that since the appellant’s father was in possession of the land in dispute for a long period, the onus of proving that the said land was acquired and compensation paid therefore, is on the respondent. That the claim of title to the land in dispute by the respondent is predicated on a certificate of occupancy issued in pursuance of Exhibit ‘E’. It was submitted that since the name of Alhaji Shugaba Darman is not contained in Exhibit E, the respondent could not have acquired title to the land in dispute.
This is so, accordingly to learned counsel, one can not give what was does not possess. It was contended further that before any other person could acquire title to the land in dispute, same must have been acquired in accordance with the provisions of Section 28 of the Land Use Act. Learned counsel contended that where the provisions of section 28 of the Land Use Act has not been complied with any acquirement of land by any authority can not be valid. In this instant case, it was argued on behalf of the appellant, the land is dispute has not been shown to have been acquired properly in accordance with Section 28 at the Land use Act. The respondent could not have validly acquired title to the land in dispute; notwithstanding the Certificate of occupancy issued to him. The cases of Kyari v. Akali supra; Reg. Trustees of Apostolic Church v Olowoleni (1990) 6 NWLR pt. 158 p. 524; Ofono V. RSG & D.R. (1997) 9 NWLR Pt. 521 P.425 were cited to buttress the submissions supra.
Learned counsel did urge the court to hold that the respondent did not acquire a valid title to the land in dispute because there was no proper and valid acquisition of the land from the appellant who inherited it from his father who had been in long possession of it.
The cases of Romaine v. Romaine (1992) 4 NWLR Pt.238 P.650 and Olohanel v. Adeyusu (2010) FWLR Pt.24 P.1355
Were cited to reinforce the submissions supra. The court has been used to resolve this issue in favour of the appellant.
The issue of whether there was acquisition of the land in dispute before it was allocated to Alh. Shugaba Darman who subsequently sold it to the respondent is no longer a life issue in view of the decision of the learned trial judge, which this court agreed with, that the appellant has had not establish his title to the land in dispute. The effect of the decision arrived at by the trial court is that, the appellant had not proved his title to the land’ Therefore, the issue of acquisition of it before the allocation to Alhaji Shugaba Darman who sold it to the respondent, becomes purely academic.
The issue of whether compensation was paid or not by the Government for the acquisition of the land also becomes otiose in view of the decision arrived at by the trial court, to the effect that the appellant did not prove his title to the land. In view of the foregoing, this issue can not but be resolved against the appellant.
ISSUE 4
Whether the learned trial judge was right or justified in declaring the respondent owner of the land in dispute in view of section 1(1) (a) the Land Use Acts?
Learned Counsel for the appellant referred to section 2(1) (a) of the Land Use Act, 2002, and submitted that by the provisions of the said law, ownership of the land within the territory of a state is vested in the Governor of that state. It was his further submission that an individual can not own land, one can only be granted a right of occupancy in land. The case of Asermo v. Abraham (1994) 8 NWLR Pt. 361 P.151 @ 201 was cited in reinforcement of the submissions supra. It was learned counsel’s conclusion that even if the appellant did not prove his title to the learned in dispute the respondent shouldn’t have declared title in the land to him. At best, it was submitted the trial court was only to dismiss the claim of title to it, and stop at that. The case of Ikawa v Dandy (1993) 8 NWLR Pt. 310 P.246 @ 254 was cited in aid. It was further submitted that not having counter-claimed for a declaration of title, the court had no jurisdiction to grant to the respondent what he did not sought for. Order 21 rule 12(2) of the Borno state High Court Civil procedure Rules 1987 (which was applicable at the time) was relied upon. It was learned counsel’s submission that the declaration of title to the respondent was wrong in law, and the court was urged to set aside same. The cases of Akinbobola v. Pliason Fisco (1991) 1 NWLR PT. 161 p. 270; Yusuf v. Oyefurde (1998) 12 NWLR pt. 597 p. 483 and Dyktrade Ltd. v. Omnia (Nig.) Ltd. (2000) 80 LRLN p.2856 were cited to buttress the submissions supra. Concluding, learned counsel urged the court to set aside the declaratory order of the trial court wherein title in the land was granted to the respondent. This issue be resolved in favour of the appellant.
The learned trial judge, in his judgment on page 16 of the supplementary record of appeal dismissed the appellant’s claim for declaration of title to the land in dispute, and enter judgment for the respondent wherein titles to the land was declared to the respondent. Was, he right in law, Bukar Esquire, for the respondent was of the view that the learned trial judge was right, Mark Esquire for the appellant did not think so, I agree with Mark Esquire to his submissions that a court of law can not grant a relief that has not been sought for by a party. See Akinbolola v. Pliason Fisco (1991) 1 NWLR Pt. 167 P. 171- P.27 & 283 wherein the Supreme Court held that a Court of law normally do not grant a relief not sought by a party before it. See also Nneji v. Chukwu (1988) 3 NWLR Pt.81 P. 184.
It is correct as submitted by Mark Esquire that all lands in a state are vested in the Governor of that state. The Governor holds the lands for and on behalf of the people of the state.
Section (1) of the Land use Act provides:
“Subject to the provisions of this Act, all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the Provisions of this Act.”
Section 2(1)(a) and (b) of the Act further provides as follows:
“2(1) As from the commencement of this Act
(a) All land in urban areas shall be under the control and management of the Governor of each state;
and
(b) All other land shall, subject to this Act, be under control and management of the Local Government within the area of jurisdiction of which the land is situate.”
That all lands comprised in the territory of each State of the Federation vested in the Governor of the State by the Land Use Act has been re-affirmed by the judicial pronouncement of the Supreme Court in the case of CALABAR CENTRAL COOPERATIVE THRIFT AND CREDIT SOCIETY LTD. & ORS. VS. BASSEY EBONG EKPO (1) where it was held that the Land use Act vests all land comprised in the territory of each state, except land vested in the Federal Government or its agencies, solely in the Governor of the State who holds such land in trust for the people and is responsible for allocation of land in all urban areas to individuals and organizations for residential, agricultural, commercial and other purpose. In SAVANNAH BANK OF NIGERIA LTD. & ANOR. VS. AJOLO & ANOR (2) the court of Appeal held that the main purpose of the Land Use Act is to achieve a fusion between the Land Tenure System in the then Northern Nigeria and the south whereby absolute ownership of Land by families, communities and individuals became abolished, while all land within each state became vested in the Governor of that State.
Any person or organization who desires to be granted a right of occupancy in respect of any land, shall apply for such grant to the Governor or the Local Government as the case may be. Upon being satisfied that an applicant is qualified to be granted a right occupy any parcel of land, the Governor or the Local Government, may grant such right of occupancy, and a certificate of occupancy shall be issued to the applicant.
But in my considered view, what the learned trial judge meant in his judgment that the respondent owned the land in dispute is that he has title to it. The usage of the word “owned” in the circumstances of land holdings does not tantamount to total ownership of the land. That is why a certificate of right of occupancy was issued to the respondent limiting his interest in the land to only a right of occupancy, Therefore, the declaration of the ownership of the land to the respondent is not invalid merely because the word “owner” has been used by the learned trial judge.
Though the respondent did not specifically counter-claimed for a declaration of title at the trial Court, he did pray the Court for an order in his paragraph 19 of the Statement of defence. This is what he prayed for:
“WHEREOF the defendant shall at the trial urge the Court to declare the defendant as a person entitled to the right of occupancy of the plot in dispute and dismiss the plaintiff’s claim with cost as baseless, frivolous and without merits.”
In view of the foregoing prayer of the respondent, can it be said that he did not sought any relief at the trial court? In my humble view, though there was no counter-claim action filed by the respondent seeking for a declaration of title to the land in dispute, his prayer in paragraph 19 of the statement of defence suffices to warrant the declaration of title by the learned trial judge after coming to the decision that the appellant did not prove by credible evidence title to the land. The authorities cited by learned counsel may be the correct principles of law, but they are not relevant to the contention of Mark Esquire, in view of the prayer of the respondent in paragraph n of the Statement of defence. The result is that this issue is hereby resolved against the appellant.
ISSUE FIVE (5)
Whether the learned trial judge properly evaluated the evidence adduced before it arriving at a decision declaring title to the land in dispute to the respondent.
Mark Esquire for the appellant submitted that in civil cases, the standard of proof is on the balance of Probabilities or on the preponderance of evidence. In deciding whether a parry has discharged this burden or not, the trial court must evaluate the evidence before it and ascribe probative value thereto, before coming to a decision. It was his contention that the learned trial judge did not properly evaluate the evidence before it, otherwise he would not have made the declaration in favour of the respondent. The cases of Atayeye v. Ashanu (1987) 1 NWLR pt.49 p, 267; Kwala v. Zira (2007) FWLR pt.112 p.113 and Kyari v. Alkali (supra) were cited to reinforce the submissions supra.
Earlier in this judgment, when dealing with Issue 1, I did consider and resolve whether the learned trial judge evaluated the evidence adduced before it or not, and also whether he arrived at the correct decision or not in view of the evidence adduced before the trial court by the parties. I therefore refer to the reasonings and conclusions arrived at under the said Issue 1, to this Issue 5, and “mutatis mutandis,” adopt same accordingly, However, by way of emphasis, led me re-state that it is the duty of a trial court who had the opportunity of seeing, hearing and observing witnesses to evaluate the evidence and ascribe probative value to such evidence before taking a decision in the matter before it. An appellate court has no business to evaluate and ascribe probative value to evidence unless the trial court failed to do so or did so improperly. See Eze v. Okeloagu (2010) 3 WLR pt. 1180 p. 193 @ 21; Onwuka v. Ediala (1989) 1 NWLR pt. 96 p. 182; Agbi v. Ogbah (2005) 8 NWLR pt. 9 26 p. 40; Awudu v. Saniel (2005) 2 NWLR Pt.909 p. 199 and Omozeghien V. Adjarho (2006) 4 NWLR Pt. 969 p.33 @ 53.
The learned trial judge did review, evaluate and ascribed probative value to the evidence of the witnesses to the parties before it on pages 14 – 15 (of the record of appeal) before arriving at his decision on pages 15 – 16 of the supplementary record of appeal. I do not therefore agree with Mark Esquire, that there was no evaluation of the evidence by the learned trial judge in arriving at his decision, This issue is hereby resolved against the appellant. Having resolved all the five (5) issues against the appellant, the appeal fails.
The same is hereby dismissed. The judgment of the learned trial judge of the trial court is hereby affirmed. The respondent is entitled to costs which I hereby assess at N30,000.00. Same is award to the respondent against the appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I have read in draft the lead judgment of my learned brother Ibrahim Shata Bdliya, JCA and I agree with both his reasoning and conclusions. There is absolutely no merit in this appeal. I too dismiss it with N30, 000.00 costs to the Respondent.
PETER OLABISI IGE, J.C.A.: I have had the advantage of reading in advance the reasons for the Judgment just delivered by my Lord Bdliya, JCA, I respectfully adopt the reasons for conclusion reached therein.
Appearances
E.I. Mark Esq. with P.O. Retshik Esq.For Appellant
AND
B. A. Bukar Esq.For Respondent
