HAMZA & ANOR v. ABDULLAHI & ANOR
(2022)LCN/16776(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, September 02, 2022
CA/K/35/2016
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. RABI HAMZA 2. HAUWA HAMZA APPELANT(S)
And
1. DAHIRU ABDULLAHI 2. ADAMU HAMZA RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
This was the evidence which the Appellants sought the trial Court to declare the title of land theirs. At this juncture, it is pertinent to state that in an action for declaration of title to land, the onus lies on the party claiming title to satisfy the Court that he is entitled on evidence adduced by him to declaration of the piece of land claimed. That is to say, it is duty of the party who seeks a declaration of title to land to establish and prove his claim by credible evidence. See the case of OFIGO VS. EZEOKE (2019) LPELR – 46953 (CA). Thus, in a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not on the weakness of the case of the defendant. Indeed, the plaintiff must satisfy the Court with its pleadings and evidence adduced that he is entitled to the land. See generally, the cases of GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) PG. 282 and DADA VS. DOSUNMU (2008) 18 NWLR (PT. 1010) PG. 134. PER IDRIS, J.CA
WHETHER OR NOT N AN ACTION FOR DECLARATION OF TITLE TO LAND, THE AREA OF LAND IN DISPUTE MUST BE CLEARLY ASCERTAINED
Additionally, the Supreme Court has in a plethora of cases held that the plaintiff in a declaration of title to land must show the area of land with certainty. This trite principle was held in the case of MOMOH & ORS VS. UMORU & ORS (2011) LPELR – 8130 (SC) thus:
“The primary duty placed on a plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly the area to which his claim relates so that the land can be identified with certainty. The plaintiff has to prove title to a defined area to which the declaration can be attached. Where the land being claimed is contained in a survey plan, it must show clearly the dimensions of the land, the boundaries and other features. Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) Pg. 282, Dada v. Dosunmu (2008) 18 NWLR (Pt. 1010 Pg. 134, Ogedengbe v. Balogun (2007) 9 NWLR (Pt. 1039) Pg. 380, Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) Pg. 295, Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) Pg. 1. Moreover, where an action is for declaration of title to land, and an injunction over a piece of land, the onus lies on the plaintiff or applicant as the case may be to show clearly the area of land in dispute. Sowa v. Amachree (1933) 11 NLR 82, Udofia v. Afiza (1940) 6 WACA 216, Odicha v. Chigbogwu (1994) 7 NWLR (Pt. 354) Pg. 78.”
Basically, the law is saying that where a plaintiff claims a declaration of title to land and fails to give the extent and identity of the land he is claiming, his action will be dismissed as it is a condition precedent sine qua non to the success of the claim. The learned trial judge held in page 135 of the record of appeal that:
“In a claim of title to land, it must be made to defined area, with certainty. See EZEOKEKE V UGA (1962) 1 ALL NLR (PT. 1) 482. In the instant case the plaintiffs have not established with certainty that it was not the 2nd Defendant’s land that was sold to the 1st defendant. The plaintiffs are expected to at least prove their case beyond preponderance of the doubt. See Section 134 of the Evidence Act… The mere mention of land in dispute as did the 1st plaintiff (PW3) in the instant case without identifying clearly the area of land to which a claim is related is not enough description, evidence can be related in support of the party’s claim. See ODICHE V CHIBOGWU (1994) 7 NWLR (PT. 354) 78.” PER IDRIS, J.CA.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein appealed against the decision of Justice B. F. Zubairu of the High Court of Kaduna State, Zaria delivered on the 2nd day of May 2013.
The facts of the case leading to this appeal as adduced from the pleadings before the trial Court below are that the Appellants who were plaintiffs at the trial Court claimed against the Respondents as Defendants the following reliefs:
1. A DECLARATION that the Plot of Land lying and situate at Jushi Zaria bounded by Isa Hamza from the South and by Rakiya Hamza and Maryam Hamza from the North is the property of the Plaintiff which they inherited from their late father Mallam Hamza Mohammed Kwasau.
2. A DECLARATION that the Plaintiffs either by themselves, their agents, servants etc., have never sold the land in dispute to the Defendant.
3. A PERPETUAL order restraining the Defendant, either by himself, his agents, servants, privies, etc from trespassing or further trespassing into the Plot of Land in dispute.
4. Cost of this action.
While the 1st Respondent on his own part also had a counter-claim seeking for the following reliefs:
1. A DECLARATION that the 1st Respondent/Counter-Claimant is the bonefide owner of the plot of land situate at Jushi, Zaria bounded as follows:
EAST: Road to Kwarbai
WEST: Salisu Abdulkadir’s House
SOUTH: A bare land of the Appellant’s Family
North: A bare land of the Appellant’s Family.
And he is the person entitled to Statutory Right of Occupancy on same ground of purchase from the 2nd Defendant and his family.
2. A Declaration that the Plaintiff either by themselves, their agents, servants and/or privies have divested themselves of any interest they claim to have hitherto had or the land in dispute having duly sold and transferred possession of the same to the 1st Defendant/Counter-Claimant.
3. An Order of perpetual injunction restraining the plaintiffs either by themselves, their agents, servants and or privies from disturbing and further disturbing the 1st Defendant/Counter-claimant of the quiet enjoyment of the land in dispute.
4. Cost of defending the suit.
The Appellants brought this action against the first Respondent who they alleged is building on their land. They (the Appellants) alleged that the land was a family land which they inherited from their father and was shared between them. At the trial, the Appellants called 3 (three) witnesses including the 1st Appellant and submitted Exhibit A, a sketch map.
The 1st Respondent on his part, alleged that he bought the land from the Appellants’ brother (2nd Respondent) at the sum of N300,000. The 1st Respondent alleged that he was shown the land by the 2nd Respondent, that a demarcation was done by a bricklayer and 5 tippers of sand were brought to the land after which he travelled to Hajj. The 1st Respondent also alleged that on coming back the 2nd Respondent asked him to add a sum of N50,000 which he refused. The 1st Respondent further stated that the 2nd Respondent then instigated his sister to say that the land is theirs. The 1st Respondent called 3 (three) witnesses including himself at the trial and tendered documents admitted in evidence and marked as Exhibits B and C.
The learned trial judge in his judgment, found that the Appellant had not proved their title and that the 1st Respondent had. Dissatisfied with the said judgment, the Appellants filed a Notice of Appeal dated the 13th day of November, 2015.
The parties filed their respective briefs of arguments. In the Appellants’ brief of argument as settled by their counsel Gerald Umunna Nwaneri Esq., dated the 28th day of January, 2016, a sole issue was distilled for determination from the grounds of appeal as follows:
“Having regard to the state of pleadings and evidence adduced before the trial Court, whether the trial Court properly considered and evaluated the evidence adduced by the Appellants of acts of ownership and possession of the subject plot of land, or made specific findings on these vital pieces of evidence and if so, should not the said vital piece of evidence persuaded the trial Court to decide in favour of the Appellants and against the Respondent. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20)”
Learned counsel for the Appellants submitted that the 1st Respondent has both in his pleadings and testimony admitted that the root of title of the Appellants to the larger estate stems from bequest by way of inheritance and as such the fact of the admission reduces the burden of proof or quantum of fact that the Appellants will be required to adduce in order to establish the relief of declaration of title. The case of BURAIMOH VS. BAMGBOSE (1989) 3 NWLR (PT. 109) P. 352 AT PP. 363 – 364 was relied on. It was argued that for a plaintiff to succeed in an action for declaration of title to land, he must plead the boundaries of the parcel of land and lead evidence to substantiate the claim. Counsel submitted further that the Appellants have already pleaded the boundaries of the subject plot in paragraph 14(i) of their joint statement of claim. The case of RTD CAPTAIN UGO VS. ANDE GBATSE (1995) 6 NWLR 314 AT P. 377 was relied on.
Additionally, it was submitted that for a declaration of statutory right of occupancy to a parcel of land, the burden is on the plaintiff to satisfy to the Court that he is entitled on the strength of his own case and not the weakness of the defence. It was argued further that it is quite lawful and permissible for a plaintiff or defendant to make use of the evidence from the other side that is useful to it. The case of DAUDA OYEDEJI & ANOR VS. TIJANI AKINYELE & ORS (2002) 3 NWLR (PT. 775) P. 586 AT P. 618 was relied upon.
Learned Counsel for the Appellants then reviewed the testimonies of their witnesses i.e. PW1, PW2 and PW3 before the trial Court. It was then submitted that the exercise the Appellants are calling upon this Court to embark on is not to evaluate the demeanor or bearing of the Appellants’ or the 1st Respondent’s witnesses but instead to ascertain whether the lower Court drew the proper inferences from the evidence adduced at the trial in arriving at the conclusion that the Appellants were unable to establish their claim for declaration of title on and over the subject plot of land, and whether the 1st Respondent was entitled to judgment in view of the state of his defence, the manner his reliefs were couched and in accordance with the evidence adduced to establish his entitlement to those reliefs. Counsel thereafter reproduced the learned trial judge’s evaluation of evidence and conceded to the fact that the burden to establish facts entitling them to the reliefs sought rests on the Appellants. Section 136 of the Evidence Act, 2011 and the case of CHIEF GORDON JOE YOUNG JACK & ORS VS. CHIEF R. I. T. WHYTE (2001) 2 MJSC 26 AT P. 38 were relied on.
Learned Counsel for the Appellants submitted further that the Appellant adduced evidence that they were shown their plots of land after partitioning was completed. Also PW1 and PW3 testified that the entire estate was reduced to a sketch plan with the partitioning of the estate that indicated every beneficiary’s name on his or her plot and each heir received a copy. The photocopy of the sketch plan Counsel submitted, was admitted as Exhibit A and PW3 testified that the maker of the sketch is deceased while efforts to retrieve the original from his illiterate widows proved futile.
Counsel then submitted that the learned trial judge condemned Exhibit A as an inefficacious and worthless document because it was not signed by the maker and no probative value can be attached to it. However, Counsel argued that the learned trial judge would not have come to that conclusion if he considered the provisions of Section 3(1) of the Survey Law Cap. 129 Laws of Northern Nigeria 1963 applicable to Kaduna State. Counsel then argued that what the Court is called upon to construe in this instant appeal is Section 3(1)(b)(i) of the Survey Law and whether under the surrounding circumstances of the case Exhibit A can command any amount of probative value. Counsel urged the Court to interpret the section mentioned above along with the provisions of Section 34(1)(a) of the Evidence Act, 2011. It was submitted that in evaluating Exhibit A as a piece of evidence, the Court is bound to take into consideration the circumstance under which the document was prepared and the possibility of concealment of facts. Counsel then submitted that it is on record that the document was prepared in the ordinary course of business of a surveyor and that the document was in existence long before the instant suit arose and as such it cannot be said that there existed room for concealment of facts. The case of BELLO VS. RINGIM (1991) 7 NWLR (PT. 206) P. 668 AT P. 676 was relied on.
It was argued that Exhibit A was not discredited under cross-examination, that the survey was conducted and the sketch plan was produced contemporaneously with the partitioning and distribution of the estate and the purpose of the production of the sketch plan was to ascertain the size of the estate of the deceased and partition it in accordance with the number of beneficiaries entitled to obtain a share in it. The case of AROMOLARAN VS. KUPOLUYI (1994) 2 NWLR (PT. 325) P. 22 AT P. 246 was relied on to submit that the Court is entitled to act on or accept the evidence which has remained unchallenged and uncontroverted. It was argued that Exhibit A was made at a time when litigation is far from the thoughts of the contemplation of any existing or impending litigation among the beneficiaries or a third party.
Counsel further submitted that in view of the state of pleadings, what is before the trial Court is not a case of declaration of title per se where boundaries of the area claimed are in dispute and of which parties are required to prove the area claimed with certainty and accuracy and of which the principle has been stated in the case of RTD. CAPTAIN UGO VS. ANDE GBATSE (Supra). Further, Counsel submitted that what is before the Court is a case of declaration of title premised on identification of the subject plot from two several plots whose boundaries and identities are not in issue and that the lower Court in determining the quantum of proof required to establish this head of claim failed to draw this vital distinction.
It was argued further that the next issue to be resolved is whether the 1st Respondent was able to discharge the burden placed on him for a relief of declaration of title. Counsel submitted that the 1st Respondent filed a counter-claim which is a separate claim for which the Respondent must adduce evidence as one of the heads of claim sought is declaratory. The case of ARAB CHEM LTD VS. OWODUENYI (2013) 10 NWLR (PT. 1361) P. 89 AT PP. 102 – 103 was relied on.
Learned Counsel for the Appellants gave a brief review of the Defence witnesses’ testimonies. Counsel submitted that the learned trial judge while reviewing the evidence of the defence/counter-claimant, held that all the evidence of the defence was in tandem with the fact that it was the 2nd Respondent that personally identified the plot of land and sold to them. Additionally, that the subsequent visits of the Appellants and the 2nd Respondent and the purposes of those visits were not denied by the Appellants and as such they qualify as evidence that can be acted on. Furthermore, Counsel submitted that the lower Court relied on Exhibit C which was a voluntary agreement between the 2nd and 1st Respondents for the sale of the plot of land to hold that the 2nd Respondent personally identified the land and as such he cannot validly resile from the agreement.
Learned Counsel for the Appellant then attacked the manner in which the lower Court made specific findings of facts or draw certain inferences. This, it was argued, included the subsequent meetings between the 1st Appellant and the 2nd Respondent which was debunked by PW1 who testified that on realization that the 1st Respondent has entered the wrong plot of land, the 2nd Respondent instructed PW1 to raise the purchase price from a friend and return it to the 1st Respondent so that the contract of sale can be rescinded to which the 1st Respondent refused. Counsel contended that there is conflicting evidence before the Court as to who these parties are and for what purpose the meetings were held and which conflict cannot be resolved by placing reliance on the burden of proof but can only be resolved on grounds of which pieces of evidence is more credible.
Counsel argued, as it relates to the issue of identity of the plot sold, that the trial Court failed to resolve the conflicting evidence on whether the 2nd Respondent actually demarcated the subject plot in the presence of the persons present at the sale transaction or at all before it concluded in its judgment that the 2nd Respondent actually did the demarcation. Several other points were raised by the Counsel as it relates to the issue of plot identity.
On the issue of demarcation of boundaries, the Appellants’ Counsel submitted that the Court at locus in quo held that the 1st Respondent identified the poles which the 2nd Respondent used to demarcate the boundaries of the plot but the Court did not record how he came to this conclusion. Additionally, it was argued that the learned trial judge acted on the defence evidence to hold that the 2nd Respondent identified and demarcated the boundaries when there is conflicting evidence on the issue. Counsel thereafter submitted that in view of the irreconcilable oral testimonies of the parties, the most appropriate means of ascertaining the true state of event was to have recourse to the contents of Exhibit C. The case of FASHANU VS. ADEKOYA (1974) 1 ALL NLR (PT. 1) P. 35 AT PP. 41 – 42 was relied on.
Finally, it was submitted that the learned trial judge held that the counter-claim succeeded and granted the 1st Respondent a declaration that he is the bona fide owner of the plot of land situate at Jushi, Zaria but the description of the boundaries of the plot made by the parties was different. It was then argued that where the relief in the writ is different from the one in the statement of claim that the latter supersedes the former. Counsel thereafter submitted that the trial Court is without jurisdiction to grant the 1st Respondent the reliefs as endorsed on the Appellant’s writ when same is at variance with what is contained in their joint statement of claim. In conclusion, it was submitted that the Appellants have demonstrated to the Court that the 1st Respondent has not established by way of credible evidence, that the subject plot was the actual plot that was assigned to him by way of sale by the 2nd Respondent and that the lower Court has failed in its duty of evaluating the evidence before it when it held that the 1st Respondent has established by credible evidence that the subject plot was the plot assigned to him by the 2nd Respondent by way of sale and upon which a decree of declaration must attach.
The 1st Respondent on his own part filed a Respondent brief of argument dated the 7th day of March, 2016 settled by Dr. A. Is’haq. In the said brief of argument a sole issue for determination was formulated as follows:
Whether or not the Court below was right in entering judgment in favour of the 1st Respondent and against the Appellants herein.
Learned counsel for the 1st Respondent submitted that the Court below was right in entering judgment in favour of the 1st Respondent against the Appellants, and that the law is settled that in civil cases the burden of proof is on the party who asserts a fact to prove. The cases of DAODU VS. NNPC (1998) 2 NWLR (PT. 538) 355 SC and KALA VS. POTISKUM (1998) 3 NWLR (PT. 540) 1 were cited in support. Counsel then reviewed the evidence of the prosecution witnesses i.e. PW1, PW2 and PW3 respectively.
It was argued that it is in evidence before the trial Court below that the 1st Respondent bought the disputed land from the 2nd Respondent on the 7th day of November, 2003 at the sum of N300,000 (Three Hundred Thousand Naira) only and that the 1st Respondent immediately mobilized workers on the land and went for Hajj and however, on coming back the 2nd Respondent came with some people to re-measure the land and told the 1st Respondent to add N50,000 to the agreed sale price and to purchase another land. It was then submitted that when the 1st Respondent refused, the 2nd Respondent came with the 1st Appellant (Rabi Hamza) and rained all sorts of insults and abuses on the 1st Respondent. Thereafter, it was argued that the Appellants and the 2nd Respondent later instituted a case before the Upper Sharia Court GRA, Zaria and later the instant suit all with the view to dispossess the 1st Respondent of the land because he did not agree to their propositions.
Learned counsel for the 1st Respondent then submitted that the pieces of evidence stated above were neither controverted nor destroyed by the Appellants during cross-examination. Additionally, it was argued that neither the exact extent of their land were around on the 15th of March, 2013 when the trial Court visited the disputed land which shows a lack of respect to the trial Court and their claim. Furthermore, it was argued that in the visit to the locus in quo the trial Court saw the developments the 1st Respondent made on the disputed land to the lintel level was destroyed and rendered useless by the suit of the Appellants which was mischievously filed to hurt the 1st Respondent.
Finally, learned Counsel for the 1st Respondent submitted that the Appellant asserted that the disputed land as per the Appellants’ writ of summons is far from the truth and a deliberate attempt to mislead this Court. Counsel then urged the Court to dismiss the appeal.
RESOLUTION OF ISSUES
I have read and totally digested the respective briefs of argument filed by the parties herein. In determining this appeal, I shall adopt the sole issue for determination formulated by the Appellant which in my opinion is the issue that have arisen for the determination of the instant appeal. The issue is again reproduced hereunder as follows:
“Having regard to the state of pleadings and evidence adduced before the trial Court, whether the trial Court properly considered and evaluated the evidence adduced by the Appellants of acts of ownership and possession of the subject plot of land, or made specific findings on these vital pieces of evidence and if so, should not the said vital piece of evidence persuaded the trial Court to decide in favour of the Appellants and against the Respondent.”
The Appellants has submitted that the exercise they are calling upon this Court to embark on is to ascertain whether the lower Court drew the proper inferences from the evidence adduced at the trial in arriving at the conclusion that the Appellants were unable to establish their claim for declaration of title on and over the subject plot of land, and whether the 1st Respondent was entitled to judgment in view of the state of his defence, the manner his reliefs were couched and in accordance with the evidence adduced to establish his entitlement to those reliefs.
Simply put, the question to answer is whether the trial Court was right in entering judgment in favour of the 1st Respondent against the Appellants. In the first place, it is pertinent to note that the parties agree that the root of title for the plot of land is part of a larger estate which was subject to inheritance. Secondly, the parties agree that there was a sale of land between the 1st Respondent and the 2nd Respondent. Thus, the issue on hand is whether the land that the 1st Respondent began construction on belongs to the Appellants and not the 2nd Respondent.
The Appellants through their evidence tried to establish the fact that the 1st Respondent was building on the wrong plot of land from the one that he initially purchased at the sum of N300, 000 (Three Hundred Thousand Naira) from the 2nd Respondent. PW1 testified that he was the caretaker of the land as far back as 1974 and that one day he was going through the land when he saw heaps of sand with a cleared plot. PW1 testified that upon enquiry, he was told that the 1st Respondent was the one that asked them to do the work and when he approached the 1st Respondent he was told that it was bought from 2nd Respondent after which he told the 1st Respondent that it was the Appellants’ land and not the 2nd Respondent’s own. Under cross-examination, PW1 testified that he and the 2nd Respondent were around when the land was being shared and a surveyor made a sketch map. The witness further testified that it was not the 2nd Respondent who showed the land to the 1st Respondent but one of his nephews as the 2nd Respondent left his nephew Salisu to collect the money in his absence. PW2 basically testified that the 1st Respondent came to him when he wanted to buy the land and he took him to the 2nd Respondent as such he was present all through the sale transaction. The witness testified that he does not know the boundaries of the land but that he can identify the land. Under cross-examination, PW2 said he was not there when the land was shared but he was told that the 1st Respondent was building on land other than the one he sold him.
Finally, PW3 testified that after she found out that the 1st Respondent was building on her land she talked to the 2nd Respondent who talked to the 1st Respondent telling him the land was not the 2nd Respondent’s own for which the 1st Respondent refused. PW3 testified that there was a sketch map, a photocopy of which was tendered in evidence. The witness also said that she was not around when the 2nd Respondent showed the 1st Respondent the land and that the person who went to show the 1st Respondent the land was Mai Wada who was also there during the sharing. Finally, PW3 testified that the 1st Respondent diverted to build on her land because there was a water chamber in the one the 2nd Respondent sold to him.
This was the evidence which the Appellants sought the trial Court to declare the title of land theirs. At this juncture, it is pertinent to state that in an action for declaration of title to land, the onus lies on the party claiming title to satisfy the Court that he is entitled on evidence adduced by him to declaration of the piece of land claimed. That is to say, it is duty of the party who seeks a declaration of title to land to establish and prove his claim by credible evidence. See the case of OFIGO VS. EZEOKE (2019) LPELR – 46953 (CA). Thus, in a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not on the weakness of the case of the defendant. Indeed, the plaintiff must satisfy the Court with its pleadings and evidence adduced that he is entitled to the land. See generally, the cases of GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) PG. 282 and DADA VS. DOSUNMU (2008) 18 NWLR (PT. 1010) PG. 134.
Additionally, the Supreme Court has in a plethora of cases held that the plaintiff in a declaration of title to land must show the area of land with certainty. This trite principle was held in the case of MOMOH & ORS VS. UMORU & ORS (2011) LPELR – 8130 (SC) thus:
“The primary duty placed on a plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly the area to which his claim relates so that the land can be identified with certainty. The plaintiff has to prove title to a defined area to which the declaration can be attached. Where the land being claimed is contained in a survey plan, it must show clearly the dimensions of the land, the boundaries and other features. Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) Pg. 282, Dada v. Dosunmu (2008) 18 NWLR (Pt. 1010 Pg. 134, Ogedengbe v. Balogun (2007) 9 NWLR (Pt. 1039) Pg. 380, Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) Pg. 295, Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) Pg. 1. Moreover, where an action is for declaration of title to land, and an injunction over a piece of land, the onus lies on the plaintiff or applicant as the case may be to show clearly the area of land in dispute. Sowa v. Amachree (1933) 11 NLR 82, Udofia v. Afiza (1940) 6 WACA 216, Odicha v. Chigbogwu (1994) 7 NWLR (Pt. 354) Pg. 78.”
Basically, the law is saying that where a plaintiff claims a declaration of title to land and fails to give the extent and identity of the land he is claiming, his action will be dismissed as it is a condition precedent sine qua non to the success of the claim. The learned trial judge held in page 135 of the record of appeal that:
“In a claim of title to land, it must be made to defined area, with certainty. See EZEOKEKE V UGA (1962) 1 ALL NLR (PT. 1) 482. In the instant case the plaintiffs have not established with certainty that it was not the 2nd Defendant’s land that was sold to the 1st defendant. The plaintiffs are expected to at least prove their case beyond preponderance of the doubt. See Section 134 of the Evidence Act… The mere mention of land in dispute as did the 1st plaintiff (PW3) in the instant case without identifying clearly the area of land to which a claim is related is not enough description, evidence can be related in support of the party’s claim. See ODICHE V CHIBOGWU (1994) 7 NWLR (PT. 354) 78.”
I cannot help but agree with the learned trial judge in this regard. All the three witnesses i.e. PW1, PW2 and PW3, did not give a definite description of the plot of land that they claimed and they did little to show that the plot of land was not the 2nd Respondent’s land which was sold to the 1st Respondent.
At this juncture, I must state that the Appellants sought to reply on Exhibit A which was a photocopy of a sketch map that was not signed and tendered by PW3 who was not the maker. PW3 alleged that the maker was dead and she could not retrieve the original from his illiterate wives. The learned trial judge held that the unsigned sketch map was a worthless document and that it was not demonstrated, explained or exposed before the Court. However, Counsel for the Appellants has argued that a combined reading of Section 3(1)(b)(i) of the Survey Law (Cap. 129) Laws of Northern Nigeria 1963 applicable in Kaduna State, Section 34 (1)(a) and Section 167(c) of the Evidence Act 2011 would have made the trial Court to accept the evidence of the sketch map.
I must applaud the Appellants’ Counsel for his brilliant argument. It was indeed refreshing to see that he had his thinking cap on. I agree with learned Counsel for the Appellant that a foundation was laid by PW3 as to why she was tendering the photocopied sketch map even though she was not the maker. Indeed, a clear interpretation of Section 3(b) of the Survey Law which relates to the admissibility of such documents, like maps, plans and/or diagrams of land in evidence, gives the party seeking to tender such documents, a leeway to show good cause why the document was not so prepared and signed by a surveyor or are copies of such documents so prepared and not signed and certified by a Surveyor as being true copies thereof. However, even if this Court agrees that there is a good cause that the sketch map is a photocopy and that its maker is dead, the fact that it is unsigned cannot go unnoticed.
To my mind, it would have been a different case if the maker was tendering the sketch map that was unsigned but the fact that it is being tendered by someone other than the maker and it is unsigned seems to me to be too much of a stretch. How can the Court then ascertain whether the maker is in fact actually a licensed surveyor? The maker is not there to tender it in evidence and it is not signed by him. See BABATOLA VS. ALADEJANA (2001) 12 NWLR (PT. 728) 597. Again I agree with the learned trial judge, though the sketch map is admissible I cannot attach any probative value to it. The Appellants therefore, as the learned trial judge held, did not establish the title to land.
The next question to answer then becomes whether the 1st Respondent discharged the burden placed on him for declaration of title in his counter-claim. The evidence adduced by the 1st Respondent as DW1 was that he was introduced by a land vendor to the land and was told the price was N 300,000 and he agreed to buy the land on the condition that he must see the owner. The witness testified that the land agent showed him the land and the 2nd Respondent also identified the same land to him. DW1 testified that he complained about one neighbor not having entrance if purchased the land but was told that there was reconciliation with a neighbor for easement which he confirmed. After which he paid the agreed sum, he then invited a bricklayer who took measurement of the land. DW1 described the boundaries of the land and said he ordered for 5 tippers of sand then went for Hajj. The witness testified that on coming back the 2nd Respondent asked for N50,000 more and made him an offer to also buy his brother, Isa Hamza’s land. DW1 further testified that he was then visited by the 2nd Respondent and 1st Appellant who insulted him, and that the 2nd Respondent did not tell him the land belongs to the Appellants but showed him Isa’s land and that of his sisters which had been sold.
Under cross-examination, DW1 said the bricklayer used the pole as demarcations and that he did not know the measurements. The witness further testified that he was shown the boundaries of the land by the 2nd Respondent and the females’ lands too but he did not find out from them as he didn’t know them. DW1 also said that he investigated the land, was abused by the 1st Appellant and that when he bought the land there was no pipe but on coming back he saw a pipe. DW2 said he is a friend of the 1st Respondent and knows all the parties in the case due to the sale transaction. The witness described the boundaries of the land, and testified that an agent met all the neighbors to tell them of the intention to sell the land and the 1st Respondent indicated interest. DW2 thereafter stated that himself, the 1st Respondent and others went to see the land with 2nd Respondent. The witness added that the he was a witness to the agreement and demarcations were made. DW2 also stated that the 2nd Respondent asked for an additional N50,000, and that the 1st Appellant insulted the 1st Respondent. Under cross-examination, the witness testified that the Appellants owns lands near the land in dispute but they did not know when the land was purchased.
DW3 on his own part testified that after the 1st Respondent indicated his willingness to buy the land and asked for the actual owner from the agent, the owner, the 2nd Respondent came and a bricklayer demarcated the land. DW3 said that he was a witness to the agreement and that 5 tippers of sand were ordered. The witness also testified that the 2nd Respondent asked for an additional N50,000, and that the 1st Appellant insulted the 1st Respondent. Under cross-examination, DW3 said he was present when the money was paid, and that there was a water pipe across the land, and the women’s portion was in the northern boundary and that he is always present because the 1st Respondent is his teacher.
The above was the evidence adduced by the 1st Respondent in the trial Court and the learned trial judge found that:
“The 1st Defendant and all the other DWs told the Court in detail how the 2nd defendant personally identified the land and demarcated same before he sold to the 1st Defendant… How the 2nd Defendant requested the 1st Defendant to pay more for the land already purchased by the 1st Defendant and how he later met the 1st Defendant along with his sister who insulted the 1st Defendant for his failure to add more price and how she purportedly cancelled the sale all these were never discredited, destroyed or controverted under cross-examination thereby qualify to be acceptable and acted upon by this Court, I rely on EGBUNIKE V A.B.C. LTD (1995) NWLR (PT. 375) 34, OMOREGBE V LAWANI (1980) 3 – 4 SC 10. In further support of his claim, the 1st Defendant tendered Exhibit C the sale agreement.”
Additionally, at page 138 of the record of appeal, the learned trial judge held as it relates to the visit to the locus in quo that:
“At the locus in quo, the 1st Defendant was able to identify the pole the 2nd defendant used in demarcating the land he sold to him. He identified the lands belonging to the plaintiff and the one he was requested to buy by the 2nd defendant and his sister. I have equally examined the 1st defendant’s construction which is at linter level prior to the interim order granted by this Court and have seen substantial damage has been done to the 1st defendant’s building.”
Again, I am in complete agreement with the learned trial judge. The 1st Respondent and all his witnesses gave almost identical testimonies of what transpired between the 1st Respondent, the 2nd Respondent and subsequently the 1st Appellant. What is more is that DW2 and DW3 were both witnesses to the sale of the land and testified that they were there when the 2nd Respondent showed the 1st Respondent the land. Additionally, that the land was demarcated by a bricklayer in the presence of the 2nd Respondent and 5 tippers of sand were brought all on the same day. These testimonies much as the learned trial judge said, were left unchallenged and as such can be acted upon by the Court.
Counsel for the Appellants on his part did a good job in pointing to several issues with the findings of the learned trial judge, first of which was the alleged meetings between the 1st Appellant, the 1st Respondent and the 2nd Respondent which the 1st Appellant denied happened. Counsel has alleged that although a series of meetings were held it cannot be inferred what the purpose of the meetings were until the Court looks at which evidence is more credible than the other with the available evidence. To my mind, this argument of no moment as the Appellants has already admitted that there was indeed a series of negotiations and arguments between them. It is therefore right for the trial Court, which I also agree with, to have decided that the meeting between the 1st and 2nd Respondents and 1st Appellant is one such meeting because there is unchallenged evidence that a meeting between the three took place as adduced by the 1st Respondent.
Next, the Appellant has challenged the issue of identity of the land sold to the 1st Respondent by the 2nd Respondent. Counsel has submitted that the question to be answered is whether the presence of the 2nd Respondent at the survey and sharing of the land qualified to amount to evidence that he identified and demarcated the land in the presence of the 1st Respondent. Counsel has also argued that the defence failed to call some vital witnesses including the boundary neighbor Salisu Abdulkadir, the agent Murtal Aminu and the bricklayer. First and foremost, counsel himself submitted that the testimonies of the defence witnesses are in tandem with regard to the boundaries of the purchased land. The Appellants and their witnesses did not identify the land with certainty. The testimonies of the Appellants as to which plot of land the 2nd Respondent showed the 1st Respondent could not be proved and as such it was only right for the learned trial judge to find the evidence of the Respondent credible given that it was not challenged. Moreover, a party is at liberty to call whoever he or she wants in proof of their case and as such, it is not compulsory that the said Salisu Abdulkadir and Murtal Aminu must be called before the case of the 1st Respondent is proved.
Counsel for the 1st Respondent on the issue of demarcation had submitted that though there was a visit to the locus in quo, there was still conflicting evidence and as such the trial Court should rely on Exhibit C which is a document that stated that a plot of land was sold. Even if the argument of counsel is correct and the Court relies on Exhibit C and not the demarcation done on the land, the Respondents identified the land with certainty. Indeed, what the Court said was that it observed the demarcation of the plot sold to the 1st Respondent and in the judgment held that it saw the demarcation made by the 2nd Respondent. Given that there is unchallenged evidence that the 2nd Respondent was there when the bricklayer did the demarcation, I do not find anything to query in the judgment of the trial Court.
Finally, counsel has argued that the disputed land in the writ of summons is different from the one in the counter-claim. I have looked at both descriptions and I believe they are one and the same land.
Thus, the sole issue for determination in this appeal is resolved in favour of the 1st Respondent against the Appellant.
In the circumstances, I affirm the decision of the High Court of Kaduna State, Zaria delivered on the 2nd day of May, 2013 in view of my findings above. This appeal lacks merit and same is accordingly hereby dismissed. I make no order as to cost.
AMINA AUDI WAMBAI, J.C.A.: I agree.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
V. A. B. Emizie, Esq. For Appellant(s)
Dr. Emmanuel U, for the 2nd Respondent. For Respondent(s)
