HAJIYA MURJANATU TSOHO ABDULLAHI v. HAJIYA DELU HARUNA LAKISAI
(2018)LCN/12275(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2018
CA/K/68/2017
RATIO
EVIDENCE: WAYS TO PROVE TITLE TO LAND
“It is settled that there are five ways to which ownership of land may be proved:
1. By traditional evidence; 2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved; 3. Acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner; 4. Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land; 5. 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) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC; Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561 Page 224 at 264-265 Para H-C per Galinje JSC; Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 343-344 Para C-A; (2015) All FWLR Part 775 Page 200 at 211 Para C-G” PER OLUDOTUN ADEBOLA ADEFOPE- OKOJIE, J.CA.
JURISDICTION: WHEN AN ACTION IS STATUTE BARRED
“Issue of jurisdiction can be raised at any stage of the proceedings even before the Supreme Court. A careful look at the writ and statement of claim shows that the Plaintiff took up the writ of action 20 years after its acquiring. When an action is statute barred, the Plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. The action is not maintainable i.e. when a statute of limitation prescribes a period within which an action must be initiated legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. See Hassan vs Aliyu (2010) 17 NWLR (1223) 547.” PER OLUDOTUN ADEBOLA ADEFOPE- OKOJIE, J.C.A.
JUSTICES:
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
HAJIYA MURJANATU TSOHO ABDULLAHI – Appellant(s)
AND
HAJIYA DELU HARUNA LAKISAI – Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE- OKOJIE, J.C.A.(Delivering the Leading Judgment):
This suit was instituted in a representative capacity by Alhaji Ayuba Tsoho Abdullahi before the High Court of Kaduna State, sitting in Zaria, for and on behalf of the heirs of Late Tsoho Abdullahi, his younger brother. Upon Ayuba Tsohos death, the present Appellant, a biological daughter of Late Tsoho Abdullahi, was substituted in his stead, as representing the other heirs of Tsoho Abdullahi, hereafter referred to as the deceased .
The suit was in respect of a piece of land purchased by the deceased, measuring 1.03 Acres (0.417 Hectares), with stated dimensions, at an area called Tukur-Tukur under Zaria Local Government Area of Kaduna State.
The case of the Appellant, as Plaintiff before the lower Court, is that during the life-time of the deceased, the Respondent attempted to trespass on the land but was repelled by the deceased. Shortly after his death, taking advantage of the young age of his heirs, again trespassed on the land, causing the institution of a case of criminal trespass against her before the Sharia Court in Zaria.
The Respondent, to frustrate the case, instituted a suit before the High Court, seeking an order of Certiorari to quash the suit on the ground that the Sharia Court had no jurisdiction to adjudicate on the land, being in an urban area. The application was granted and the suit quashed. The present suit was thence instituted in which the following reliefs were sought:
1. A declaration that the Plaintiff is the owner of the land situate lying in the area known as Tukur-Tukur, Zaria Local Government Area of Kaduna State and it bounded as follows:
i. In North the land is bounded by the farm of Babajo;
ii. East bounded by farm of Mallam Zubairu.
iii. South bounded by the farm land of Mallam Yakubu Tanko, and in the West it is bounded by the famous Traditional wall of Tukur-Tukur and a bush, all measuring 1.03 Acre or 0.417 Hectares.
2. A perpetual injunction restraining the defendant whether by herself, her servants, agents and/or privies from entering into the piece of land afore described in paragraph 1 above or dealing with it in any manner that may be detrimental to the interest of the Plaintiff.
3. N500,000 General Damages against the defendant for act of trespass on the land afore mentioned.
Two witnesses testified for the Appellant and a receipt of purchase was tendered.
Opposing the claim, the Respondent filed a Statement of Defence, in which she averred that the land in dispute measured 0.422 Hectares (1.042778 acres). It was her case that the land originally belonged to one Abubakar Musa, who sold the same to her husband, Alhaji Haruna Lakasai, now deceased, on 7/6/89. On his death, she inherited the land. Both she and her husband, in his life-time, have been loaning the land out for farming. She denied that she was ever challenged on the land by the deceaseds brother. She also denied encroachment, as the land is hers. She pleaded a Zaria Local Government Certificate of Occupancy issued to her husband and a Sale Agreement between Abubakar Musa and her husband.
She counter-claimed for the following:
14. Whereof, the Defendant claims against the Plaintiff as follows:
a) A declaration that the Defendant is the owner of the land situated and lying in the area known as Gidan Ganye Tukur-Tukur Zaria in Zaria Local Government covered by Zaria Local Government Area Certificate of Occupancy No. ZAK/A/06637.
b) A perpetual injunction restraining the Plaintiff either by himself, agents, servants, privies, assigns or whomsoever acting or claiming on behalf of the plaintiff from entering or in any way dealing with the land described above.
c) An order dismissing the Plaintiffs claim.
d) N500,000 of general damages against the plaintiff.
e) Cost of this action.
Three witnesses testified in proof of her claim
On conclusion of trial and exchange of written addresses, the trial Court, in a judgment delivered on 30/9/14, dismissed the Appellants case for lack of jurisdiction, on the ground that the suit was statute barred. It entered judgment for the Respondent in terms of her Counter-Claim.
Aggrieved, the Appellant appealed to this Court by Notice of Appeal filed on 17/10/14. The Appellants Brief, filed on 16/3/17, was settled by Dr. K.A. Adedokun of K.A. Adedokun & Co., in which 4 issues were formulated, to wit:
1. Whether the learned trial judge rightly declared the plaintiffs action as statute barred.
2. Considering the pleading and evidence led thereto by the defendant, whether the learned trial Court rightly entered judgment for the defendant as per her counter-claim.
3. Whether the failure of the learned trial judge to consider the plaintiffs reply on point of law to the respondents new issues of law in her final written address occasioned a miscarriage of justice.
4. Whether considering the strength of the pleading and evidence led by the Appellant she has established and proved her case on preponderance of evidence.
On behalf of the Respondent, A.Y. Musa Esq. of A.Y. Musa & Co filed a Respondents Brief on 6/2/18, in which a sole issue for determination was formulated, to wit:
The 1st issue for determination is:
Whether the Appellant has proved title to the land claimed vide purchase to warrant the declaration of title to her.
The sole issue for determination formulated by the Respondent is the same as the Appellants 2nd issue. I shall adopt as the issues that arise for determination in this appeal, the 1st, 2nd and 4th issues distilled by the Appellant, slightly amended for clarity.
The 1st issue for determination is:
Whether the learned trial judge rightly declared the Appellants action as statute barred.
Arguing this issue, learned Appellants Counsel has submitted that the determining factor on whether an action is statute-barred or not is the averment in the plaintiffs writ of summons and statement of claim, in view of several authorities that the period of limitation is determined by looking at the Statement of Claim to ascertain the date the alleged wrong took place and comparing this with the date the action was instituted.
He cited the case of Egbe vs Adefarasin (1987) 1 NWLR (Part 47); and Goodwill Co. Ltd vs Calabar Cament Co. Ltd. (2010) ALL FWLR (Part 544) 34 @ 48 Paras E-F; Woherem vs Emereuwa (2004) 13 NWLR (Part 890); Eboigbe v NNPC (1994) 5 NWLR Part 347 Page 649. He submitted that a cause of action cannot be computed from the Statement of Defence or Defendants witness deposition on oath. The lower Court was thus in error to have relied on the deposition on oath of DW2 to make a finding that the Appellants action was statute barred.
Pointing out the date the cause of action arose from the Statement of Claim and the date of institution of the action, he submitted that the action was filed within the time stipulated in Section 4 of the Limitation Law of Kaduna State. He pointed out discrepancies in the date the cause of action allegedly arose in the witness statement on oath of DW2 and the erroneous finding of the Court based thereon.
Learned Counsel further contended that Order 17 Rule 7(2) of the Kaduna State Civil Procedure Rules, 2007, mandates the Respondent to specifically plead Limitation Law to be able to be availed of the same, which was not done.
Learned Counsel to the Respondent submitted that the lower Court rightly declared the Appellants case statute barred as the Respondent and her husband had been in possession of the land for over 10 years.
Citing the case of Nasir vs CSC Kano (2010) Vol.2 MJSC Page 1 @ 24 Paras D-E, he submitted that the issue of limitation is a question of jurisdiction and competence of the Court that can be raised at any time. Also citing Orders 17 Rule 8 and Order 5 Rule 1(2) of the Kaduna State (Civil Procedure) Rules Supra, he submitted that the failure to plead the Limitation Law is a mere irregularity which ought not to nullify a proceeding.
The lower Court, on the issue of statute bar, held:
This action is instituted by the Plaintiff on 3rd day of April, 2007. From the evidence of the Defendant and her witnesses (sic). The evidence of DW2 shows that he was on the land since 1987 and the Plaintiffs have done nothing until 2007 a period of 20 years.
A plea that an action is statute barred is one which raises the issue of jurisdiction. See Adekoya v FHA (2008) 11 NWLR (1099) 539.
Issue of jurisdiction can be raised at any stage of the proceedings even before the Supreme Court. A careful look at the writ and statement of claim shows that the Plaintiff took up the writ of action 20 years after its acquiring.
When an action is statute barred, the Plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. The action is not maintainable i.e. when a statute of limitation prescribes a period within which an action must be initiated legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. See Hassan vs Aliyu (2010) 17 NWLR (1223) 547.
The Plaintiff in this action has lost the right to enforce his cause of action by judicial process because the time for instituting such an action has lapsed. See Odubeko vs Fowler (1993) 7 NWLR 308) 637.
Section 4 of the Limitation Law, Laws of Kaduna State Cap 89 Laws of Kaduna State 1991, provides as follows:
No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to some other persons through whom he claims, to that person.
To determine the date on which the right of action accrued, it is settled law that the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compares it with the date the originating process was filed in Court. See Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd (2017) 7 NWLR Part 1563 Page 42 at 68 Para A per Peter-Odili JSC; Woherem v Emereuwa (2004) 13 NWLR Part 890 Page 398; Akibu v Azeez (2003) 5 NWLR Part 814 Page 643.
It is true, as submitted by learned Appellants Counsel, that in determining limitation, one is confined to the Plaintiffs pleadings, without recourse to the Statement of Defence, deposition on oath of the Defendants witness or any other document or process. See Mulima v Usman (2014) 16 NWLR Part 1432 Page 160 at 199 Para A-B per Okoro JSC; at 208 Para B-C per Rhodes-Vivour JSC.
Where, however, the matter has gone to trial and evidence taken, the lower Court will determine from the evidence given when the cause of action accrued and will compare it with the date the originating process was filed in Court. See Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd Supra.
In the instant case, the pleading of the Appellant in Paragraphs 9 and 10 of the Statement of Claim, at Page 28 of the Record, is as follows:
9. The Plaintiff pleads further that during the lifetime of his younger brother, the defendant attempted trespassing into the land in dispute but the deceased resisted same; but shortly after his younger brothers demise, the defendant rekindled her attempt knowing that some of the heirs of his deceased brother are minors and the only adult one is abroad.
10. The Plaintiff avers that on noticing the defendants move, he instituted a case before Sharia Court No. 1, Zaria City in the criminal Case No. SC1/ZC/144C/002/05 between the Plaintiff (as the complainant thereat) and the defendant (as the Accused thereat) for criminal trespass contrary to Section 180 of the Sharia Penal Code of Kaduna State.
Joining issues, the Respondent averred in Paragraph 12 of the Statement of Defence, at Pages 44-45 of the Record, as follows:
12. In answer to paragraphs 10 and 11 of the Plaintif’s statement of claim the Defendant avers that the Plaintiff took her to the said Sharia Court of Zaria city in the guise of criminal trespass and the case has not even reached defence stage when she realizes that the said Sharia Court has no jurisdiction and what the Plaintiff sought is declaration of title and the High Court No. 3 Zaria quashed the whole proceeding for absence of jurisdiction and for the breach of fair hearing among others.
It is thus clear from the Statement of Claim and Statement of Defence that the action leading to the institution of the action for criminal trespass before the Sharia Court took place in 2005. There is no contrary date indicated by the Respondent in her Statement of Defence, I note.
The trial Judge, in determining the date the cause of action accrued relied on the deposition of DW2 and held:
The evidence of DW2 shows that he was on the land since 1987 and the Plaintiffs have done nothing until 2007 a period of 20 years
The witness statement of this witness, Alhaji Isah Abdullahi, is at Page 101 of the Record, where he deposed, in Paragraph 5, as follows:
5. That I sought for a land from the defendants deceased husband on loan and he gave me the land in dispute wherein I farmed/cultivated for 9 years until 1991 when the defendants husband died and his estate was to be shared whereupon I was called upon to and I surrendered same to the family.
The Appellants Counsel has contended that it is not possible for this witness to have been loaned the land for cultivation by the husband of the Respondent for 9 years until 1991 when he surrendered it, as from Paragraph 5 of the Statement of Defence and the deposition of the Respondent, the land was purchased by her husband in 1989. As calculated by the Appellants Counsel, nine years from 1991 is 1982. How is it possible, he asked, and I agree with him, for land to be loaned to DW2 by the Respondents husband seven years before he purchased it? This is clearly anomalous, I hold, and cannot by any stretch of imagination be relied upon as the basis of computing the date the cause of action arose.
Indeed one wonders where the lower Court got the date 1987 as the date of accrual of cause of action.
Furthermore, and as rightly submitted by the Appellants Counsel, incidents showing ownership and possession of land must be pleaded. In the absence of pleading of this fact, the same cannot be surreptitiously introduced in a witness statement.
The lower Court was thus in patent error, I hold, to rely on a date which was not pleaded by the defence as a date the cause of action accrued and which date was patently false, rather than to rely on the date pleaded in the Statement of Claim and which date was conceded by the Respondent.
From the state of the pleadings of both parties, the cause of action accrued in 2005, which was the year the Appellants representative, on observing the trespass, instituted the case of criminal trespass against the Respondent.
A simple subtraction of 2005, when the cause of action arose, from 2007, when the Writ of Summons was filed, shows that the suit was instituted well within the time stipulated in the Limitation Law Supra.
The trial Judge, I accordingly hold, was in clear error to have declared the Appellants suit as statute barred.
I resolve the 1st issue for determination in favour of the Appellant.
I shall take the 2nd and 3rd issues for determination together, namely:
2nd Issue
Considering the pleading and evidence led thereon by the Respondent, whether the learned trial Court rightly entered judgment for the Respondent as per her counter-claim.
3rd issue
Whether, considering the strength of the pleading and evidence led by the Appellant, she has established and proved her case on the preponderance of evidence.
On the 2nd issue, the learned Counsel to the Appellant has submitted that it is incumbent on the Respondent to place before the trial Court convincing, credible and cogent evidence to prove her counter claim as provided for under Section 134 of the Evidence Act 2011. Even though the Appellant did not file a defence to the counter claim of the Respondent, all issues raised with regard to the counter claim were met in the Appellants pleading. Judgment could not therefore have been entered for the Respondent on the Counter-Claim without considering evidence led in respect of the facts pleaded by the Appellant. In addition, this does not take away the onus placed on the Counter Claimant to prove her case. He cited the cases of Dabup vs Kolo (1993) 9 NWLR (Part 317) 254 at 270, 281 and Ogbonna vs A.G. Imo State (1992) 1 NWLR (Part 220) 647.
Learned Counsel further submitted that for the Respondents Counter- Claim to succeed, based on title to land, she had to prove her case in any of the modes stipulated inIdundun vs Okumagba and Adda vs Jassen (2004) ALL FWLR (Part 230) 1011 @ 1014.
He also pointed to the evidence of PW2 that the land being claimed by the Appellant is different from the one being claimed by the Respondent. He urged the Court to take note of the fact that the Zaria Local Government Council C of O No ZAK/A/06637 pleaded was not tendered by the Respondent, submitting that the Respondent did not lead sufficient and cogent evidence in proof of title to the land in dispute. The Respondent, he said, could not even identify the land she was claiming, neither could she or her witnesses establish how her husbands vendor, Malam Abubakar Musa, came to have title vested in him, instead attempting to rely on long possession. He cited the cases of Mogaji vs Cadbury Nig Ltd (1985)2 NWLR (Part 7) 393 @ 395 and Anukam vs Anukam (2008) ALL FWLR (Part 413) 1255 @ 1270 Paras E-F.
Arguing the 3rd issue for determination, the learned Appellants Counsel submitted that when a party seeks any declaratory relief from the Court such a party must show and lead cogent and convincing evidence to warrant the grant of the relief sought, which the Appellant has successfully done. He pointed to the Sale Agreement, Exhibit 1 and 1A, submitting that the testimony of PW1 and PW2 were not discredited under cross-examination, thereby discharging the onus placed on them by tracing the Appellants root of title and by preponderance of evidence.
The Respondents Counsel submitted that the Appellant failed to prove their case and that the Court rightly dismissed it. A plethora of authorities abound, he said, on what a claimant of land who traces his title to purchase must establish, citing the cases of Idundun vs Okumagba (1976) 9 & 10 SC 277 @ 246-250 and Alli vs Alesinloye (2000) 4 SC (Part 1) Page 111 @ 125 lines 1-25.
Learned Counsel contended further that the Appellant tendered a photocopy of a purported sales agreement in proof of his title without compliance with the provision as to tendering of secondary evidence, citing Section 89 (1) of the Evidence Act, 2011 Cap E14 LFN. Exhibit A, being a photocopy is ab initio inadmissible being a registerable but unregistered document and ought not to have been admitted in evidence in the first place, citing Section 15 of the Kaduna State Land Instrument Registration Law Cap. 85 Laws of Kaduna State 1991 and Section 2 of the same law.
It is settled that there are five ways to which ownership of land may be proved:
1. By traditional evidence;
2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
3. Acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land;
5. 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) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC; Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561 Page 224 at 264-265 Para H-C per Galinje JSC; Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 343-344 Para C-A; (2015) All FWLR Part 775 Page 200 at 211 Para C-G per Fabiyi JSC; Ajiboye v. Ishola (2006) 13 NWLR Part 998 Page 628 per Onnoghen JSC (as he then was).
All modes of proof of title are independent and none is superior to the other. It is sufficient if only one of the ways is proved. See Onovo v. Mba (2014) 14 NWLR Part 1427 Page 391 at 420-421 Para F-D per Ogunbiyi JSC; Owhonda v. Ekpechi (2003) 17 NWLR Part 849 Page 326 at 354 Para A-B; 367 Para D-F per Musdapher JSC (as he then was).
The witnesses in this case testified by adoption of their Witness Statements and were subsequently cross examined by opposing Counsel.
In proof of the title of the deceased Alhaji Dogara Wuciciri, testifying as PW1, described the boundaries of the land in dispute with its boundaries as follows:
East The farm of Mallam Zubairu
West Ganuwan (i.e. Tukur-Tukur famous traditional wall an bush).
North Babajo’s farm.
South Mallam Yakubu Tanko’s farmland.
Further deposing to incidents of ownership, he gave the history of the land, tracing the same from the grandfather of one Dan Isa, the Senior Brother to the Emir of Zazzau, which
19
Grandfather first cleared and settled on the land. Dan Isa inherited the land from his father and in turn sold to Gambo Lemu. It was he (PW1) that negotiated the purchase price between Gambo Lemu and the deceased Tsoho Abdullahi and also witnessed the Sale Agreement. His further evidence is that he was physically present when late Tsoho Abdullahi took over possession of the land in dispute. He also knows as a fact that the Late Tsoho Abdullahi bought the land in dispute over 20 years ago for the sum of N6,000.00 and the land is over one acre.
The witness tendered, without objection, the photocopy of a Sales Agreement made on 10/7/83 from Gambo Lemu to Alhaji Tsoho Abdullahi. The Hausa and English translations were received in evidence as Exhibits 1 and 1A respectively.
Under cross examination, he stated that he signed the purchase agreement though he cannot recognize his signature. He also knows both Dan Isa, the brother of the Emir of Zazzau, and Gambo Lemu, though he was not a witness to the sale between Gambo Lemu and Dan Isa. He was however informed of the transaction. He reiterated that he negotiated for the purchase of the land. He also reiterated the boundaries as stated in his witness statement.
The 2nd witness for the Appellant is Mallam Muktar Samaila, PW2. He stated the same boundaries as PW1. He confirmed that the land belongs to late Tsoho Abdullahi and that he purchased the same from Gambo Lemu, now deceased. Before Gambo Lemu sold the disputed land to the Appellant, his (PW2) grandfather used to farm on the land and he would accompany him. On the death of his grandfather, the land reverted to Gambo Lemu who sold the land to the deceased Tsoho Abdullahi, through PW1. The land was given to him by the deceased to farm on since 1986. He stated further that the land of the Respondents late husband is not the same as that of the deceased though it is close to it.
The witness also stated that the land bought by the Respondents husband was being farmed by the late Mallam Isa, the Sankira of Tukur Tukur, before the land was then sold to the Respondents husband. When the Respondent trespassed on to the land of the deceased, the late Sarki Tukura of Anguwan Bisa, Tukur Tukur, under whose keep the land was, informed the Respondent that the disputed land was not owned by the Respondents husband.
Under a brief cross-examination, the witness reiterated:
The land being claimed by the Plaintiff is different from the one being claimed by the Defendant. I don’t know the person who succeeded Isa Sankira.
He was not cross-examined on his affirmation of the ownership of the land in dispute by the Appellant and the fact that the Respondents land is different from the land in dispute.
The deposition of the Respondent, who testified as PW1 is that the land in dispute measures 0.422 hectares (1.042778 acres), as described in a sketch plan attached to Zaria Local Government Certificate of Occupancy No. ZAK/A/06637, which land was sold to her husband by Abubakar Musa on 7/6/89. She inherited the land following the death of her husband in 1991. When the land devolved to her, she used to give it out on loan to people for farming purposes. Under cross examination, she agreed that she was not present when her husband bought the land. She however does not know how her husband’s vendor came to own the land. She further stated I cannot say the boundaries of the land when we go there I can show you.
DW2 and DW3 are persons to whom the land was allegedly given on loan. I shall however, set no store by the evidence of DW2 for the reasons given above by me under the determination of issue no. 1, as this witness was clearly untruthful in stating that the land was given to him to farm by the Respondents husband nine years before 1991, viz 1982, when the evidence of the Respondent is that her husband only purchased the land in 1989.
With regard to DW3, Muhammad Bello Isa, his deposition is that sometime in 2001, the Respondent loaned the land to his father and that both he and his father farmed on it for four years from 2001 to 2004. They used to pay gallah (tribute) to the Respondent. He will identify the land if called upon to do so. Under cross examination, both DW2 and DW3 said they were not there when the Respondent’s husband bought the land and don’t know how he got the land.
The lower Court, following his dismissal of the Appellant’s case for being statute barred, in a couple of paragraphs held:
The Defendant has led evidence to show that together with her late husband, before she inherited him, to inheriting him(sic) have been on the land for 20 years before the Plaintiff instituted this action. All these years they were in possession giving it out on loan and Galla being paid to them.
I hold that the counter-claim of the defendant succeeds. Judgment is hereby entered for the Defendant against the Plaintiff. It is ordered as follows:
1. The Defendant is the owner of the land situate and lying in the area known as “Gidan Ganye” Tukur-Tukur, Zaria in Zaria Local Government covered by Zaria Local Government Area Certificate of Occupancy No. ZAK/A/06637.
2. A perpetual injunction restraining the Plaintiff either by herself, agents, servants, privies, assigns or whomsoever acting or claiming on behalf of the Plaintiff from entering or in any way dealing with the land described above.
3. The Plaintiff’s claim is hereby dismissed.
4. N500,000.00k damages to the Defendant to be paid by the Plaintiff.
5. Cost of fling this action to be assessed by the Registrar of this Court.
As aforesaid, both parties claim title to the land. The burden thus rests on both of them to prove their various titles. In so doing, the law is that they cannot rest on the weakness of the other party but must prove their claim on the balance of probabilities, to see on which side the evidence preponderates – Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561 Page 224 at 264 Para D-H per Galinje JSC; Momoh v. Umoru (2011) 15 NWLR Part 1270 Page 217 at 281 Para C per Adekeye JSC; Adeleke v. Iyanda (2001) 13 NWLR Part 729 Page 1 at 21-22 Para H-D per Uwaifo JSC.
Having held that the lower Court was wrong to dismiss the Appellant’s case, I shall put both sides on an imaginary scale to see on which side the evidence preponderates.
On the side of the Appellant, traditional evidence has been pleaded and given of how the grandfather of Dan Isa was the first settler on the land. His son, the father of Dan Isa, inherited the same, which land devolved to Dan Isa, who subsequently sold to Gambo Lemu and later to the Deceased.
For traditional evidence to be satisfactorily proved, the following must be present:
1. Who founded the land;
2. How he founded it; and
3. The persons on whom the land devolved from its founder to the Plaintiff.
The pleading of the devolution as well as the evidence in support must be reliable and credible, with no missing link, otherwise the claim for title will fail. See Awodi v. Ajagbe (2015) 3 NWLR Part 1447 Page 578 at 613 Para B-E; (2015) All FWLR Part 769 Page 1129 at 1155 Para E-H per Ngwuta JSC; Anyafulu v. Meka (2014) 7 NWLR Part 1406 Page 396 at 411 Para D-F per Aka’ahs JSC; Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 344 Para C-E; (2015) All FWLR Part 775 Page 200 at 212 Para B-C per Fabiyi JSC.
This, I hold, has been satisfied in this case by the Appellant.
The Appellant has also tendered a sales agreement in proof of the sale to him by his predecessor in title. The Respondent’s Counsel has complained that it is inadmissible as it is a photocopy.
The proceedings of the Court, prior to tendering the receipt, at Page 140 of the Record was:
PW1: A receipt was issued to me after purchasing it. I can identify this receipt through my signature. This is the receipt. The original is with the people I bought for.
Adedokun: We seek to tender it and its English translation.
U. U. Buhari: No objection.
Court: Admitted as Exhibit 1 and 1A respectively.
As is clear from the proceedings, there was no objection from Counsel, in consequence of which it was received by the Court. This is not a document requiring a certified copy and no other evidence, as contemplated in Section 91(1)(c) of the Evidence 2011, but is a private document.
As held by this Court in the case of Isitor v Fakarode (2008) 1 NWLR Part 1069 Page 602 at 626, Para E-F per Jega JCA (of blessed memory), what is required is an explanation to the satisfaction of the Court to enable the admissibility of secondary evidence and not a justification.
Putting a finality on this contention by Counsel, the Supreme Court in the recent decision of Anagbado v Faruk (2018) LPELR-44909(SC) held, per Sanusi JSC at Page 16 Para D-F, that:
The law is trite and well settled too, that if party fails to raise objection to the admissibility of a document tendered by an opposite party, the person/party who fails to object to the admission of such document, cannot later raise the issue of admission of the document by the trial Court at the appellate Court. See Alade vs Olukade (1976) 2 SC 183 at 119; Raimi v Akintoye (1986) 3 NWLR (Pt. 26) 97. The doctrine of estopped by conduct is even applicable on that.
The Respondent, having waived any objection to this document, cannot be heard to impugn the same, I hold. This document shall thus be given the weight it deserves.
Counsel has again contended that the Sales Agreement was not registered.
It is correct, as contended by the Respondent’s Counsel, that the sales agreement relied upon by the Respondent, being an instrument affecting and transferring rights to title and interest in land, was not registered as required by Section 15 of the Land Instrument Registration Law of Kaduna State.
It has however been held in the case of Agboola v United Bank for Africa Plc (2011) 11 NWLR Part 1258 Page 375 at 415 Para F-H per Adekeye JSC, that a purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered, acquires an equitable interest which is as good as a legal estate. Such equitable interest can only be defeated by a purchaser for value without notice of the prior equity. See also Dauda v. Bamidele (2000) 9 NWLR Part 671 Page 199 at 211 Para F-G per Mangaji JCA; Nsiegbe v. Mgbemena (1996) 1 NWLR Part 426 Page 607 at 622 Para B-E per Edozie JCA (as he then was).
Again putting a finality to this question is the decision of the Supreme Court in the case of Anagbado v Faruk Supra per Eko JSC at Pages 31-33, Paras. E-C where he held as follows:
“The Appellant had made an issue of whether Exhibit P2, the letter of offer issued to the Respondent, was a registrable document which must be previously registered under the Kaduna State Lands Registration Law Cap 85 Laws of Kaduna State, 1991 before it would be admissible in evidence. Section 15 of the said Law, Cap, 85, provides:
No instruments shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.
The purport of this law, as argued by the Appellant, is that a registrable land instrument, which though is a material and relevant piece of evidence under the Evidence Act, 2011 which has not been so registered under the Law Cap 85 is not admissible in evidence in any Court of Law. The argument neither impresses nor convinces me.
The Law Cap. 85 of Kaduna State (Section 15 thereof), in so far as it purports to render inadmissible any material and relevant piece of evidence that is admissible in evidence under the Evidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by Section 4(2) of the Constitution and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution.
Evidence is Item 23 in the Exclusive Legislative List. I am of the firm view that, in view of Section 4(5) of the Constitution read with Section 4(2) and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, in the event of Section 15 of the Law Cap. 85 of Kaduna State being in conflict or inconsistent with any provisions of the Evidence Act, the provisions of the Evidence Act shall prevail. The sum total of all I am saying, on this issue, is that Section 15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any law enacted by the House of Assembly of any State.
Underlining mine
It is therefore clear that Exhibit A and A1 were rightly admitted by the trial Court and are admissible in proof of title of the deceased.
The equitable interest acquired by the Appellant, who by the evidence of her witnesses, had taken over possession of the land, is as good as a legal estate, I hold, which can only be defeated by a purchaser for value without notice of the prior equity. See Agboola v UBA Supra.
The Respondent has however produced no document of title. The Sales Agreement and Certificate of Occupancy pleaded were not tendered. Neither she nor her witnesses gave evidence of the boundaries of the land, unlike the Appellant, whose witnesses were not challenged on this. No traditional evidence was proffered. The evidence of the Respondent as to title is the mere ipse dixit of she and her witnesses, without more.
Her only witnesses are to the fact that they were given the land to farm on. This, without more, is not evidence of ownership but is consistent, I hold, with acts of trespass on land that does not belong to the Respondent.
Indeed, the evidence of PW2 of the fact that the land she was claiming did not belong to her and that she was warned that the land she was laying claim to was different from that purchased by her husband was not challenged or controverted, I have earlier observed
Placing the evidence of both sides on an imaginary scale, the Respondent unfortunately had nothing to put on the other side of the scale, which scale preponderated heavily in favour of the Appellant.
I accordingly hold that the lower Court wrongly entered judgment in favour of the Respondent on her Counter Claim. I also hold that on the strength of the pleading and evidence led by the Appellant, the Appellant established her case on the preponderance of evidence. I thus resolve both the 2nd and 3rd issues for determination in favour of the Appellant.
In consequence, this appeal succeeds. The judgment of the lower Court in favour of the Respondent is set aside in its entirety.
This Court is empowered by Section 15 of the Court of Appeal Act 2004 to make any order which the trial Court should have made. See Egbuchu vs Continental Merchant Bank Plc (2016) 8 NWLR Part 1513 Page 192 at 209 Para C – D per Kekere-Ekun JSC.
This is rendered even more essential in order to bring to closure this case which was instituted about 11 years ago.
Having allowed the Appellants appeal, I enter Judgment in favour of the Appellant as per her Statement of Claim, as follows:
1. A declaration is granted that the Appellant is the owner of the land situate lying in the area known as Tukur-Tukur, Zaria Local Government Area of Kaduna State and it bounded as follows:
i. In North the land is bounded by the farm of Babajo;
ii. East bounded by farm of Mallam Zubairu.
iii. South bounded by the farm land of Mallam Yakubu Tanko, and in the West it is bounded by the famous Traditional wall of Tukur- Tukur and a bush, all measuring 1.03 Acre or 0.417 Hectares.
2. A perpetual injunction is granted restraining the Respondent whether by herself, her servants, agents and/or privies from entering into the piece of land afore described in paragraph 1 above or dealing with it in any manner that may be detrimental to the interest of the Appellant.
3. The sum of N200,000.00 is awarded as general damages against the Respondent.
The parties shall bear their respective costs.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of reading the draft judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree that the appeal has merit for the reasons given in the lead judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in draft the lead judgment delivered by my learned brother, Oludotuna A. Adefope-Okojie, JCA. I agree with him in the reasoning and conclusions reached in the judgment. I have nothing useful to add. I also allow the appeal and set aside the Ruling of the lower Court and in lieu thereof, an order of interlocutory injunction restraining the Respondents, their agents; etc. pending the hearing and determination of the substantive suit, is hereby granted.
Appearances:
Dr. K. A. Adedokun For Appellant(s)
M. A. Adamu with him, M. S. Abdullahi For Respondent(s)
