HOSEA MAMWAN v. REGINA ELISHA
(2018)LCN/12142(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of November, 2018
CA/J/313/2017
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“The primary function of a trial Court is to evaluate evidence and make finding of facts from the evidence led before it. When the evidence is led through witnesses, the trial Court would have a singular privilege of seeing the witnesses and observing their demeanours as to whether they are witnesses of truth or not. The evidence of the parties is then put at an imaginary scale and weighed, to see which is more qualitative -Mogaji Vs. Odofin (1978)4 SC 91; Adusei Vs. Adebayo (2012)3 NWLR (Pt. 1288) 534 and Odutola Vs. Mabogunje (2013)7 NWLR (Pt. 1354) 522. Once the Court arrives at a finding after this procedure, it is not open to an appellate Court to overturn the findings, unless the complaint has to do with the construction of documents or the finding is perverse. See Ekong Vs. Otop (2014)11 NWLR (Pt. 1419) 549 and Aiyeola Vs. Pedro (2014)13 NWLR (Pt. 1424) 409.” PER TANI YUSUF HASSAN, J.C.A.
EVIDENCE: WAYS TO PROVE TITLE TO LAND
“There are five ways of establishing title to land, and they are: (a) By Traditional evidence. (b) By production of documents of title which are duly authenticated. (c) By acts of selling, leasing, renting out part of the land for farming on it or on a portion of it. (d) By acts of long possession and enjoyment of the land; and (e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute – Sogunro Vs. Yeku (2017) 9 NWLR (Pt. 1570) 290 at 297-298. See also the case of Idundun Vs. Okumagba (1976) 9-10 SC 227.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
HOSEA MAMWAN Appellant(s)
AND
REGINA ELISHA Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of High Court of Justice Plateau State sitting in Jos, over the judgment of Upper Area Court Mangu in Appeal No. PLD/J/58A/2014, delivered on the 27th day of February, 2017.
At the Upper Area Court, Mangu, the appellant as plaintiff therein sued the respondent as defendant claiming as follows:
a. A declaration that the whole land in dispute belongs to the plaintiff by way of purchase.
b. An order directing the defendant to hand over possession of the disputed land to the plaintiff
c. An order of perpetual injunction against the defendant restraining her, her agents, privies, successors in title from entering, dealing with and or cultivating the land in dispute
d. Cost of action.
At the trial, the case of the appellant was that he purchased the land in dispute from one Turu Mambas Mador in 1971. Turu Mambas Mador is now deceased. That he gave the land to the respondent who is his sister, to cultivate on the land. In 2010 when he requested for the return of his farmland from the respondent, she claimed to be given the farmland by her father and not the appellant. In the year 2013, appellant said while he was on the farmland, the respondent came with a police, who arrested him and took him to the police station. Thereafter the respondent instituted an action against him for criminal trespass at Chief Magistrate Court Bokkos, and he also filed a suit against her claiming title to the disputed land at Upper Area Court, Mangu.
The respondent’s defence on the other hand as testified by DW1, her father and appellant’s father as well, was that the farmland in dispute was purchased by the respondent’s mother from Turu Mambas in the sum of N5 (Five Pound). That upon purchase she gave the land to the respondent and put her into possession, and that the respondent has been farming on the land for 20 years.
At trial, the appellant tendered Exhibits ‘A’ and ‘A1’ as evidence of sale transaction between him and Turu Mambas Mador in Hausa and its English translation version respectively. The respondent tendered Exhibit ‘B’ a certified copy of Chief Magistrate Court proceedings.
At the conclusion of the trial before the Upper Area Court Mangu, judgment was given in favour of the appellant. The respondent was not happy with the decision of Upper Area Court Mangu, and appealed to the High Court of Plateau State sitting in Jos. The High Court sitting in its appellate jurisdiction heard the appeal and set aside the judgment of the Upper Area Court, which gave rise to this appeal by the appellant.
The appellant on 30th May, 2017 by leave of the Court filed a Notice of Appeal containing eleven grounds of appeal with their particulars and reliefs sought.
The grounds shorn of their particulars are as follows:
GROUND ONE
The lower Court erred in law when it held that Exhibit ‘A’ being (a land sales agreement) not registered is not admissible in law thereby completely ignoring cited authorities; the clear provisions of Regulation 4 of the Land Registration Regulation Cap 58 Laws of Northern Nigeria 1968 and the decision in the case of Usman Vs. Tella (1997)12 NWLR (Pt. 531) thereby occasioning miscarriage of justice.
GROUND TWO
The lower Court erred when it went outside the record of the trial Court before it and held ‘We have carefully read most of the cases cited for and against this issue’. It is no doubt that Exhibit ‘A’ (‘A1’) is put forward i.e. tendered in evidence by respondent at the trial Court as proof of his claim for title to land; hence occasioned miscarriage of justice.
GROUND THREE
The lower Court erred in law when it held that Exhibit ‘A’ (‘A1’) is merely an evidence of purchase or payment? but went ahead to hold that the plaintiff did not prove his case, thereby occasioned miscarriage of justice.
GROUND FOUR
The lower Court erred in law when it held that ‘the burden of proof on the plaintiff is not discharged even where the scales are evenly weighed between parties’ even when the evidence of the defendant supported the plaintiff’s evidence, same occasioned miscarriage of justice.
GROUND FIVE
The Court erred in law when it held outside the record before it that ‘with due respect to the learned trial judge, the proof of title to land as stipulated by the plethora of cases cited by the defendant’s counsel at the trial Court were not English cases’ and went ahead to set aside the judgment of the lower Court, in the process occasioned the miscarriage of justice.
GROUND SIX
The lower Court erred in law when it held ‘We hold that Exhibit ‘A’ (‘A1’) falls short of a document authenticated as required by law to prove title of the respondent. The said Exhibit ‘A’ (‘A1′) is not authenticated and executed, and cannot transfer interest in land to the respondent’ disregarding the unchallenged finding of the Court, in the process occasioned miscarriage of justice.
GROUND SEVEN
The lower Court erred in law when it held outside the record before it that? ‘We beg to disagree particularly when the defendant has been shown to be in possession for long time ‘contrary to the challenged finding of the trial Court in the process occasioned miscarriage of justice.”
GROUND EIGHT
The lower Court’s decision is a nullity been borne not from the record before it when it held that ‘the crux of the claim of the plaintiff/respondent is dependent upon the production of document of title i.e. Exhibit ‘A’ ‘A1 that Exhibit ‘A’ ‘A1’ is pivot of the respondent’s case at the trial Court that the said exhibit was not enough to prove his title, the issue is hereby resolved to the effect that the respondent did not prove his claim as required by law? hence occasioned miscarriage of justice.
GROUND NINE
The lower Court erred in law when it held that ‘the standard of proof of title to land is as provided in the cases cited above, and does not matter whether the case is being heard in an Area Court or High Court, the standard is the same’ hence occasioned miscarriage of justice.
GROUND TEN
The lower Court erred in law when it find ‘that there was no evidence before the trial Upper Area Court that the suit was being tried under Customary Law; and there was no customary issue raised at the trial by the plaintiff/respondent and in the process occasioned miscarriage of justice.’
GROUND ELEVEN
The entire decision of the lower Court is a nullity having conducted the entire proceedings without jurisdiction and in the process occasioned miscarriage of justice.
The appellant’s brief settled by Farmasum Fuddang Esq., was dated and filed on the 27th day of October, 2017. In it the following issues were distilled for determination, as follows:
ISSUE ONE
Whether the decision of the lower Court that Exhibit ‘A’ ‘A1’ a sale agreement is inadmissible and cannot transfer interest in land does not render the entire decision of the lower Court a nullity.? (Grounds 1 and 6)
ISSUE TWO
Whether or not the entire decision of the lower Court is not a complete nullity same having been decided outside the record of appeal before it.? (Grounds 2, 5, 7 and 8)
ISSUE THREE
Whether the lower Court decision holding that Exhibit ‘A’ is a mere evidence of purchase and payment for the land in dispute does not mean that the plaintiff has proved his claim at the trial Court.? (Grounds 3 and 4)
ISSUE FOUR
Whether giving the provisions of the Area Courts Law, the finding of the lower Court that the standard of proof in the issue of land in the Area Court is the same as in the High Court and that no evidence showed that the suit was tried under customary law is not a nullity.? (Grounds 9 and 10)
ISSUE FIVE
Whether the lower Court has jurisdiction to entertain the appeal and delivered judgment same in favour of the respondent.? (Ground 11).
The respondent?s brief dated and filed on the 23rd day of April, 2018 was deemed properly filed on 24th April, 2018. In it, there was incorporated a Notice of preliminary objection on the competence of the appeal and the jurisdiction of this Court to entertain same. The objection is predicated on the following grounds:
i. The appellant’s notice of appeal dated and filed on 30th May, 2017 against the judgment of the lower Court delivered on 27th February, 2017 is incompetent, the same having been filed out of the time allowed by law without leave of this Court first had and obtained.
ii. The appeal is incompetent in that the same being a further appeal from the decision of the lower Court in its appellate capacity, for failure of the appellant to have obtained the leave of this Court first before filing the same.
iii. The lower Court had no jurisdiction to entertain the appellant?s application of 30th May, 2017 when it sat on 6th July, 2017, heard the application and purportedly granted the appellant leave to appeal and also deemed the notice of appeal already filed as properly filed and served.
iv. The appellant’s appeal predicated on the null and incompetent order of the lower Court is null and void and has robbed this Honourable Court of the jurisdiction to entertain same.
The respondent’s counsel, Bitrus Fwanshak Esq., formulated the following issues for determination as follows:
1. Having regard to the fact and circumstances of this case, whether the lower Court was not right when it held that the appellant failed to prove his claim on the balance of probability.? (Grounds 1, 2 ,3, 4, 5, 6, 7 and 8)
2. Was the lower Court not right when it held that the standard of proof in a claim for declaration of title to land remains the same irrespective of the fact that the matter was tried before an Upper Area Court. (Ground 9)
3. Was the lower Court not right when it held that the appeal before it was initiated by due process of law.? (Ground 10)
The appellant in response to the preliminary objection and the respondent’s brief filed a reply brief on 8th May, 2018 dated the same day.
Determination of the preliminary objection
The basis of the respondent’s preliminary objection against this appeal is that the appellant’s appeal is incompetent, null and void, same having been filed outside the time allowed by the law. Learned counsel to the respondent referred to Section 24 of the Court of Appeal Act which provided for fourteen days for application for leave to appeal where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
Learned counsel for the respondent submitted that the judgment being appealed against was delivered by the lower Court on 27th February, 2017. That a period of three months from 27th February, 2017 terminates on 28th May, 2017. He said the Notice of Appeal filed 30th May, 2017 was filed out of time which robs this Court of jurisdiction to entertain same. In support of his submission, the Court was referred to Nigeria Navy Vs. Labinjo (2012)17 NWLR (Pt. 1328) 56 at 81, Afribank (Nig) Plc. Vs. Akwara (2006) 5 NWLR (Pt. 974) 619 at 640-641 and Niger Construction Ltd. Vs. Okugbeni (1987) 4 NWLR (Pt. 67) 787 at 796. We are urged to uphold the objection and strike out the appeal for being incompetent.
Learned counsel for appellant in response to the preliminary objection agreed that the judgment of the lower Court delivered on the 27th of February, 2017 the time within which to appeal expires on 28th May, 2017, being the statutory three months required.
It is his submission that the said 28th May, 2017 was a Sunday and the following day, the 29th May, 2017 was democracy day, a public holiday, hence by Section 15 (2) (a) (3) of the Interpretation Act, the Notice of Appeal filed on the 30th of May, 2017 was deemed filed within time and we are urged to so hold.
The main purpose of a preliminary objection was considered in Yaro Vs. Arewa Construction Ltd. & Ors. (2007)6 SCNJ 418; (2007)17 NWLR (Pt. 1063) 333, wherein the Supreme Court observed that it is meant to terminate at infancy, or as it were, to nib it at the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings.
It, in other words forecloses hearing of the matter in order to save time. Therefore, a successful preliminary objection terminates an appeal.
However where, as in this appeal the preliminary objection was filed against the Notice of appeal said to be filed out of time, we cannot close our eyes to the statutory provisions of Section 24 of the Court of Appeal Act and Section 15 (3) of the Interpretation Act.
Section 24 (1) of the Court of Appeal Act provides:
“(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of Court within the period prescribed by the provision of Sub-section (2) of this Section that is applicable to the case.
(2) The period for the giving of notice of appeal or notice of application for leave to appeal are:
a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
Section 15 (3) of the Interpretation Act, reads:
“Where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.”
It is not in dispute that the judgment of the lower Court delivered on the 27th day of February, 2017, the time within which to appeal against the said judgment terminates on the 28th day of May, 2017.
The 28th of May, 2017 happened to be a Sunday, while the 29th May, 2017 being a democracy day is a public holiday, which goes to show that the Notice of Appeal could not be filed on either 28th or 29th of May, 2017 but on 30th May, 2017 by the provision of Section 15 (3) of the Interpretation Act. It is on record that the Notice of appeal was dated and filed on 30th May 2017, which is within time.
The above provisions of Section 24 of the Court of Appeal Act and Section 15 (3) of the Interpretation Act are clear and unambiguous and must be given their natural or grammatical meaning. We cannot add words not contained therein. The principle of interpretation and application of provisions in a statute is that they should not be read and applied in isolation from each other but to be read in conjunction with and in relation to each other so as to arrive at intention of the provisions and do substantial justice. That is why it is important where the words used in the statute are clear and unambiguous, they should be given their ordinary grammatical meaning they convey. See Falake Vs. INEC (2016)18 NWLR (Pt. 1543)61, AC Vs. INEC (2007)12 NWLR (Pt. 1048)220 and METUH Vs. F.R.N. (2018)3 NWLR (Pt. 1605)1 at 32.
Since this appeal was filed on the 30th of May, 2017, it is filed within time. The preliminary objection is overruled. It is necessary to point out at this stage that the preliminary objection of the respondent was predicated on four grounds. However, learned counsel for the respondent canvassed on ground one only. Grounds 2, 3 and 4 are therefore deemed abandoned. The appellant’s response to grounds 2, 3 and 4 of the preliminary objections are unnecessary and therefore discountenanced.
I shall therefore on the strength of Sections 24 of the Court of Appeal Act and 15 of the Interpretation Act above, consider this appeal on its merit.
The Supreme Court in Emeka Vs. State (2014)13 NWLR (Pt. 1425)614 at 619 held that an appeal Court must consider all issues for determination raised before it except where it is of the view that a consideration of one or more issues is enough to dispose of the appeal. In such a situation, the Court may adopt such issues as may dispose of the appeal and may not be bound to consider all other issues it considers irrelevant and unnecessary. See also Tumbi Vs. Opawole (2000) 2 NWLR (Pt. 644) 27 and Anyaduba Vs. N.R.T.C. Ltd. (1992)5 NWLR (Pt. 243)535.
Also Supreme Court in Ikufurji Vs. F.R.N. (2018) 6 NWLR (Pt. 1614) 142 at 149 held that it is not a rule that in every appeal, the Court must inevitably accept issues framed by the appellant as immutable. In appropriate cases, the Court may reframe the issues to reflect the substance of the issues formulated by the parties themselves from the grounds of appeal.
In the instant case, the appellant proliferate issues, and the appellate Courts frown at proliferation of issues. I adopt the respondent’s issue one as the only relevant issue in the determination of this appeal. However I reframe it to read thus:
ISSUE ONE
Whether the lower Court was right when it held that the appellant has failed to discharge the burden on him for a declaration of title to the farmland.?
The contention of the appellant is that Exhibit ‘A’ (‘A1’) is an agreement for sale of land between him and Turu Mabas Mador to entitle him title to the disputed land. Learned counsel for the appellant argued that it is erroneous for the lower Court to hold that the sale agreement is not admissible because it is not registered. That regulation 4 of the Land Registration Regulations Cap 58 Laws of the Northern Nigeria, 1963 exempted agreement for sale or for lease affecting land from the provisions of the law, whether made before or after the coming into operation of the regulation.
It is submitted that Exhibit ‘A’ (‘A1’) is an agreement for sale of land and for an intent and purpose falls within the aforementioned exemption. That the document is not within the documents prohibited by Sections 2 and 15 of the instruments Registration Laws from being tendered in evidence or pleaded. The Court was referred to Ohiaeri Vs. Yussuf (2009) 6 NWLR (Pt. 1137) 207 at 224.
Appellant argued that, having paid the purchase price and entered into the land, he has acquired equitable title that cannot be defeated by any subsequent purchaser. Relying on the cases ofTella Vs. Usman (1997)12 NWLR (Pt. 531) and Estate & Ors. Vs. Olagbo & Anor. (2002) SC 138, it is submitted that the agreement Exhibit ‘A’ (‘A1’) has shown that the purchase price was fully paid which renders the document within the exemption from the mandatory regulation before being admitted. Referring to the case of Adepate Vs. Babatunde (2002)4 NWLR (Pt. 756) 99, it is submitted that purchase receipt is a proof of purchase of land, and his purchase of the disputed land has not been challenged by the respondent.
The appellant is contending that, having purchased the land in dispute, then his proof of same is the purchase receipt Exhibit ‘A’ (‘A1’) to which he is entitled to judgment.
That since the transaction was customary, Section 21 (2) of the Area Courts Law, 1968 is the applicable law in the matter. He relied on the case of Odusoga Vs. Rickets (1997)7 NWLR (Pt. 511), that in a transaction of land under customary law, once there is payment of the purchase price of the land to the owner, title in the land passes to the purchaser.
The appellant contended that the lower Court went outside the record before it when it held that the crux of the appellant’s case was based on Exhibit ‘A’ ‘A1’ as proof of his claim for title to land. That nothing of the aforementioned transpired at the trial Court.
Submitting further, that there was nothing on record to show that the respondent was in possession of the disputed land, but the lower Court held that the respondent was established to be in possession.
In conclusion we are urged to hold that the appellant has proved his case by payment of purchase of the disputed land, and to set aside the decision of the lower Court.
For his part, learned counsel for the respondent submitted that, the appellant having predicated his case on production of document as his root of title, the position of the law is that when a party produced a document as his root of title, the person will only succeed upon the production of a valid deed of conveyance duly executed and registered.
It is argued that mere production of a conveyance is not worthy of vesting title on the bearer of the conveyance. In support of this submission, he relied on the case of Olaniyan Vs. Fatola (2013)17 NWLR (Pt. 1384)477 at 493.
Relying on Kyari Vs. Alkali (2001)11 NWLR (Pt. 724) 412; Romaine Vs. Romaine (1992)4 NWLR (Pt. 238) 650 and Dabo Vs. Abdullahi (2005)7 NWLR (Pt. 928) 181, it is submitted that the lower Court was right when it held that the document Exhibit ‘A’ ‘A1’ is not capable of vesting title to the appellant. That Exhibit ‘A’ ‘A1’ also fails to meet the admissibility test, since the document is meant to transfer title to the appellant, it ought to have been registered before same can be admitted in evidence. Learned counsel referred to Section 2 of the Land Instrument Registration Law.
Learned counsel for the respondent contended that the appellant tendered Exhibit ‘A’ ‘A1’ as proof of conveyance and not merely as a purchase receipt argued strenuously by the appellant on appeal. That the appellant having failed to discharge the burden on him as plaintiff, the burden has not shifted to the respondent.
The Court was referred to Odunukwe Vs. Ofomata (2010)18 NWLR (Pt. 1225) 404 at 430; Odutola Vs. Mabogunje (2013)7 NWLR (Pt. 1354) 522 at 563 and Section 131 and 134 of the Evidence Act.
We are urged to resolve in favour of the respondent against the appellant.
I have not seen any new or substantial issues raised and argued in the respondent’s brief necessitating a reply brief from the appellant. Reply brief is filed to answer new and substantial points arising from the respondent’s brief, and not to improve or re-argue the appellant’s brief as was done in this case. See Raymond D. Ogolo Vs. Paul D. Fubara (2003) 5 SC 141 at 156. The appellant’s reply brief which is a repetition of what has already been canvassed is discountenanced.
I now proceed to consider the appeal. There is no doubt that, from the evidence on record the appellant relied on purchase agreement to lay claim to the land that is in dispute. The respondent also claimed to have been given the land by her mother who also purchased same. Both parties agreed that Turu Mabas Mador had sold the land in dispute. Both parties are claiming that he sold the disputed land to the appellant and the respondent’s mother.
The appellant testified as PW3, reflected at page 150 of the record. His evidence is to the effect that he bought the land in dispute in 1971 from Turu Mabas Mador, who is now deceased. He said:
“I was farming on the land and along the line, my sister married close to Bokkos and I gave same to her to cultivate. I told her to stop farming on the land in 2010. The defendant told me that it was her father who gave her and not me.”
Under cross-examination at page, 153 of the record, appellant said the defendant/respondent got married between 1969 and 1970. The appellant by his own showing confirmed that at the time he bought the land in 1971, the respondent was already married. It is therefore incorrect when he said it was after he has bought the land, when the respondent got married close to Bokkos that he subsequently gave her the land to cultivate. In the year 2010, when he asked the respondent to return the land to him goes to show that it was the respondent that was in possession of the farmland.
PW1 under cross-extermination said:
“The defendant cultivated the land last year. The defendant cultivated the land five years ago.”
His evidence was as at the 26th day of October, 2015 when he testified on behalf of the appellant. Also this evidence of PW1 goes to show that it was the respondent that was in possession of the land in dispute.
Both PW1 and PW2 in their testimony before the trial Court admitted that they did not witness the transaction between the appellant and Turu Mabas Mador. What they told the Court was what Turu Mabas Mador told them, that he sold the disputed land to the appellant. Turu Mabas Mador is no more to confirm this assertion. Their evidence is not helpful to the appellant. PW2 went further to say that the late Turu Mabas Mador told his son and brothers that he sold the land in dispute to the appellant. None of the sons or brothers of Turu Mabas Mador was called as a witness in this regard.
Under cross-examination, PW2 said none of the three sons of Turu Mabas Mador was present when Turu Mabas Mador told him that he sold the land to the appellant. Even though PW1 and PW2 claimed to share boundaries with the appellant on the disputed land, their evidence is not cogent enough to be relied upon. In fact the evidence of PW1 supported the case of the respondent that she is the one in possession of the land.
It is noted that the respondent did not testify. However, DW1, who testified on behalf of the respondent told the Court that the farmland in dispute was bought by the mother of the respondent from one Turu Mabas in the sum of N5 (pounds) and that upon purchase, the respondent’s mother put the respondent into possession of the land. That the respondent has been farming on the land for over twenty years. He denied seeing the appellant farming on the disputed land. It is also the testimony of DW1 that he witnessed the transaction between Turu Mabas Mador and the respondent’s mother. Under cross-examination, he confirmed he was around when the land was sold to the respondent? mother. He said he was the one who collected the money from her and counted it and gave same to Turu Mabas Mador.
The evidence of DW2 is to the effect that he used to assist the respondent on the farmland.
The primary function of a trial Court is to evaluate evidence and make finding of facts from the evidence led before it. When the evidence is led through witnesses, the trial Court would have a singular privilege of seeing the witnesses and observing their demeanours as to whether they are witnesses of truth or not. The evidence of the parties is then put at an imaginary scale and weighed, to see which is more qualitative -Mogaji Vs. Odofin (1978)4 SC 91; Adusei Vs. Adebayo (2012)3 NWLR (Pt. 1288) 534 and Odutola Vs. Mabogunje (2013)7 NWLR (Pt. 1354) 522.
Once the Court arrives at a finding after this procedure, it is not open to an appellate Court to overturn the findings, unless the complaint has to do with the construction of documents or the finding is perverse. See Ekong Vs. Otop (2014)11 NWLR (Pt. 1419) 549 and Aiyeola Vs. Pedro (2014)13 NWLR (Pt. 1424) 409.
As earlier stated in this judgment the claim of the appellant is for a declaration that the whole land in dispute belongs to him by way of purchase. At page 151 of the record the appellant as PW3 testified thus:
“I said one Mr. Turu Mabas Mador sold the land to me. I have something to show that the said Mabas sold the land to me. I have an agreement between me and the said Turu Mabas Mador endorsed by witnesses who are all deceased now.”
At the close of his case, he urged the Court to declare title of the farmland in his favour.
The trial Court after reviewing the evidence and submissions of counsel, held at page 199 of the record thus:
“I hereby declare that the land described in Exhibit ‘A’ in Hausa language as Gadada Biyu which land is bounded by the North, West by the land of PW1 (Joseph Mafulul), to the east by the land of PW2 (Yusuf Rafan) and to the South the land various claimed by DW1, DW2, one Ubor Madid and the defendant herself, belongs to the plaintiff by way of purchase from late Turu Mabas Mador.”
Now let us look at the findings of the lower Court, the High Court of Plateau State, Jos. At page 232, lines 9-16, the Court held:
We have carefully read most of the cases cited for and against this issue. It is not in doubt that Exhibit A, A1 is put forward i.e. tendered in evidence by the respondent at the trial Court as proof of claim for title to land. However proof of title to land goes, beyond mere production of purchase receipt or sale agreement.
The production of document must be a document of title duly authenticated and executed, Exhibit A, A1′ is merely an evidence of purchase or payment, but in law, does not carry the weight of transferring an interest in land to the respondent.’
The above came about, after the Court below reviewed the evidence led before the trial Court and set aside the findings of the trial Court. The lower Court at page 234 of the record went further to hold that:
“Exhibit A, (A1) falls short of a document authenticated as required by law to prove title to the respondent. The said Exhibit A, (A1) is not authenticated and executed, and cannot therefore transfer interest in land to the respondent.”
The appellant made heavy weather on Exhibit A, A1, that the lower Court was wrong when it held Exhibit A, A1 as inadmissible, because the document was tendered as proof of his equitable interest on the land and by Regulation 4 of the Land Registration Cap. 58 Exhibit ‘A’ a sale agreement is exempted from the provisions of the Law and therefore admissible.
The appellant’s counsel has a misconception of the law. This is because there is nothing in Section 4 of Land Registration Cap. 58 suggesting exemption as contemplated.
In fact, Section 15 of the Land Registration Cap. 58 Laws of Northern Nigeria 1963, applicable to Plateau State provides:
“No instrument 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 question is whether the sale agreement Exhibit A, A1 falls within the categories of documents that should be registered? The answer is as decided by the Supreme Court in the case ofAtanda Vs. Comm. Land & Housing Kwara State (2018)1 NWLR (Pt. 1599) 32 at 36 where the Apex Court held:
“By introducing the agreement i.e. Exhibit ‘A’, which is a sort of deed of conveyance, the transaction was meant to be governed or made under English Law rather than under, native law and custom.”
It follows therefore that Exhibit A, A1 satisfied the meaning of an instrument under Section 15 of the Land Registration Cap. 58 Law, contrary to the view held by the appellant’s counsel.
Therefore in order to have any evidential value, the document ought to have been registered. Its failure to be so registered under the relevant law, rendered Exhibit A, A1 inadmissible.
It is an established principle of law that instrument that are registerable but were not so registered, are still admissible in evidence, if only it was meant to serve the purpose of evidencing payment of purchase price, but certainly not for the purpose of creating or establishing title to a land. See Ogunbambi Vs. Abowaba (1951) WACA 22; Okoye Vs. Dumez Nig. Ltd. & Ors. (1985)1 NWLR (Pt. 4) 783 and Zaccala Vs. Edosa (2018)6 NWLR (Pt. 1616) 528 at 549.
The appellant and his witnesses were unanimous that the appellant acquired the land in dispute by purchase i.e. Exhibit A, A1. However the submission of the appellant’s counsel was that Exhibit A, A1 was tendered only as proof of equitable interest on the land. The principle of the law is very well settled that a party will not be permitted to set up on appeal, a case different from that which he canvassed at the trial Court – Dagaci Dere Vs. Dagaci Ebwa (2006)7 NWLR (Pt. 979) 382 at 420-421.
As rightly submitted on behalf of the respondent, the ‘later day claim’ of the appellant has no foundation. There is no doubt, considering the purpose Exhibit A, A1 was tendered and relied upon by the appellant, it was meant to be for a declaration of the land in dispute to him. It is therefore incorrect as submitted by the appellant’s counsel that the lower Court went outside the record in holding that the crux of the appellant?s claim is dependent on Exhibit A, A1.
I cannot see how the appellant’s claim for ownership of the land would be decided without the lower Court going into evaluation of evidence and the exhibits tendered. This is because Exhibit A, A1 was tendered for one purpose, as evidence of purchase, to which the appellant wants to be declared the owner. It therefore does not lie in the mouth of the appellant to submit, as he did that the lower Court went outside the record in its findings.
There are five ways of establishing title to land, and they are:
(a) By Traditional evidence
(b) By production of documents of title which are duly authenticated
(c) By acts of selling, leasing, renting out part of the land for farming on it or on a portion of it.
(d) By acts of long possession and enjoyment of the land; and
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute – Sogunro Vs. Yeku (2017) 9 NWLR (Pt. 1570) 290 at 297-298. See also the case of Idundun Vs. Okumagba (1976) 9-10 SC 227.
From the evidence on record, it is clear that parties relied on purchase for their claim of title to the disputed land. The lower Court reviewed the evidence of parties and preferred that of the respondent with regard to possession. Even though the evidence of transaction between late Turu Mabas Mador and the respondent?s mother was not placed before the Court, the appellant by his own showing has proved to the Court that the respondent was the one in possession when he asked her to return the land to him in the year, 2010.
The evidence of DW1 is to the effect that the respondent?s mother purchased the land for the respondent. She put the respondent into possession and the respondent has been farming on the land for over twenty years.
It is also his evidence that appellant has never been farming on the disputed land. His evidence was not challenged or controverted, which is deemed admitted – kayili Vs. Yilbuk (2015) 7 NWLR (Pt. 1457) 26.
The evidence of DWI was corroborated by the evidence of PWI when he said the respondent cultivated on the farm land five years ago, as at 2015 when he testified at the trial Court.
The Supreme Court in the case of Zaccala Vs. Edoso (2018) 6 NWLR (Pt. 16161) 528 at 532 held that a purchaser of land who has paid and taken possession of the land, by virtue of a registration instrument which has not been registered, has thereby acquired an equitable interest which is as good as a legal estate.
In the instant case, the appellant has failed to prove possession to the disputed land to entitle him to the equitable interest. It is my view that the evidence led by the appellant and his witnesses is not capable of belief to be relied upon as having established his claim. I am therefore not at one with the conclusions of the trial Court that the evidence of the appellant and his witnesses are substantial. Their evidence is not germane to the issue in controversy.
We are mindful of the fact that the respondent did not testify at the trial Court. That notwithstanding, in a claim for declaration of title to land, a plaintiff has the onus to prove his case based on the evidence he adduced at the trial, and not to rely on the weakness of the defendant’s case, even though he can take advantage of the evidence of defence which supports his case – Pada Vs. Galadima (2018) 3 NWLR (Pt. 1607) 436 at 442. See also Tukuru Vs. Sabi (2005) 3 NWLR (Pt. 913) 544; Uchendu Vs. Ogboni (1999)3 NWLR (Pt. 603)337 and Akinola Vs. Oluwo (1962)1 SCNLR 352.
The burden will only shift to the respondent after the appellant has discharged the burden placed on him. The appellant having failed to discharge the burden of proof on him, there is nothing for the respondent to rebut.
On the whole, the resultant effect of all that I have said above, is that this appeal is devoid of merit. It is accordingly dismissed. The Judgment of the lower Court is affirmed. Costs of N50,000.00k for the respondent against the appellant.
UCHECHUKWU ONYEMENAM, J.C.A.: This is an appeal against the decision of the Plateau State High Court sitting in its appellate jurisdiction in Suit No. PLD/J58A/2016. The said Court delivered its judgment on 27th February, 2017 wherein the lower Court upturned and set aside the judgment of the Upper Area Court, Mangu (trial Court) earlier delivered in favour of the Appellant herein as Plaintiff.
At the trial Court, the Appellant (Plaintiff therein) claimed against the herein Respondent (Defendant) as follows:
(1). “A declaration that the whole land in dispute belongs to the Plaintiff by way of purchase and other person
2. An order directing the Defendant to hand over possession of the disputed land to the Plaintiff (see page 142 of the Record of Appeal). In proof of the Plaintiff’s case he tendered Exhibit A and Exhibit “A1” which is titled “Agreement for the sale of land between Mr. Turu Mabas and Mr. Hosea Mamwan of Bokkos” written in Hausa language respectively.”
The trial Court in entering judgment in favour of the herein Appellant relied heavily on Exhibit “A, A1” on the ground that the Plaintiff has proved his case by production of “document of title” (see page 197, lines 4 and 5 of the record of appeal).
The Defendant therein now Respondent appealed the decision of the trial Court in Suit No.UAC/M/CV48/2014 at the Plateau State High Court holding at Jos. The appellate Court on its own formulated one main issue for determination, which is:
“Whether the Plaintiff/Respondent at the trial Court proved his claim for declaration of title to land by the production of Exhibit “A” and “A1″.” (See page 230 of the Record of Appeal)
The appellate Court in its judgment held that Exhibit “A, A1” falls short of a document authenticated as required by law to prove title of the Respondent (now Appellant). It further held that the said Exhibit “A, Al” is not authenticated and executed, and cannot therefore transfer interest in land to the Respondent. See page 234 lines 5, 6 and 7 of the Record of Appeal.
In the appeal before this Court, I want to note that all the issues for determination as formulated by the parties are centered on Exhibit “A, A1”. Therefore I will approach this appeal by expressing my view on Exhibit “A, A1”.
The trial Court relied on Exhibit “A, A1” to enter judgment in favour of the now Appellant when it held that
“The Plaintiff has proved his case by production of document of title.” It is also on that basis that the appellate Court set aside the judgment of the trial Court when it held that the said Exhibit A & A1 fall short of document authenticated as required by law to prove title to land”.
Let me start from the legal creche and which is that; in a claim for declaration of title to land, the claimant may prove his case in any of the following ways:
1. By traditional evidence
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
See: OYEWUSI & ORS V. OLAGBAMI & ORS (2018) LPELR – 44906 (SC); IDUNDUN V. OKUMAGBA (SUPRA); NKADO V. OBIANO (1997) 5 SCNJ 33 @ 47; OWHONDA V. EKPECHI (2003) 9 11 SCNJ 1 @ 6.
By production of documents as in number 2 above, this arises mainly from purchase of land which can be conducted in two forms:
(a) Under Customary law, or
(b) Under the received English law
It was decided in the case of BAMGBOYE V. OLUSOGA (1996) 4 NWLR (PT. 444) 520, that where in a declaration of title to land, a party bases his title on purchase, that party must go further to plead and prove the origin of the title of that particular person as mere production of a receipt, is not sufficient. See: OGUNLEYE V. ONI (1990) 2 NWLR (PT.135) 745; KALIO V. WOLUCHEM (1985) 1 NWLR (PT. 4) 610; PIARO V. TENALO (1976) 12 SC 31; OTANMA V. YOUDUBAGHA (2006) LPELR – 2821 (SC). A purchase receipt is evidence of contract of sale being an acknowledgement of money paid to a vendor but the same does not entitle a Claimant to a declaration of title to land. In a customary sale, a purchase receipt must be coupled with the act of being let into possession before witnesses, for a Claimant to acquire an equitable interest in the land. see: ELEME & ANOR V. AKENZUA (2000) LPELR -1112 (SC); BASSIL & ANOR. V. FAJEBE & ANOR. (2001) LPELR – 757 (SC).
Thus in order to transfer an absolute title to land under customary law, it is necessary that the sale be concluded in the presence of witness who saw the actual handing over of the land. Let me importantly note at this point that, a purchaser who envisages that he may run into difficulties in proving compliance with the requirements of sale of land under customary law, could employ the option of the use of non-customary formalities which is purchase under the received law. See: AJADI V. OLANREWAJU (SUPRA) AT P 338. In the instant case, the Appellant did not employ the use of purchase under the received English law, his evidence made it clear that he purchased under the customary law and was issued with Exhibit A, a sale agreement which also evidences payment for the land. As there was no evidence that the alleged purchase of the land by the Appellant was carried out in the proper way either by the actual handing over of the land in the presence of witnesses or the performance of other customary rites for land purchase; Exhibit A becomes the only prove for the alleged sale and as such falls squarely within the confine of a document relating to transfer of title.BASSIL & ANOR V. FAJEBE & ANOR (SUPRA).
It is trite law that for a sale of land under native or customary law to be valid, the following requirements must be met. These requirements are:-
(1) There must be payment of money or agreed consideration.
(2) The transaction must be witnessed by witnesses.
(3) The actual handing over of the land must be done in the Presence of the same witnesses.
see ADEDEJI V OLOSO [2007] SCNJ 411; FOLARIN V. DUROJAIYE (1988) 1 NWLR (PT. 70) 351; COLE V FOLAMI (1956) 1 FSC 66 AT 69; ATANDA V. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR. (2017) LPELR – 42346 (SC).
I am of the view that, even though the Appellant claimed that the purchase of the land he made was done under the customary or native law, the procedure of the purchase he made fell short of the requirements under customary law which as of necessity must be fulfilled or complied with.
The Appellant herein tendered Exhibit “A, A1” as his sole root of title to the land in dispute thus making it the document transferring the land in dispute to him thereby making it a registrable document under the law.
The Statutes define a registrable instrument as a document affecting land, whereby one party [the grantor], confers, transfers, limits, charges or extinguishes in favor of another party, [grantee], any right of title to or interest in land and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will. Once a document purports to transfer and/or confer interest in land or howsoever described, it becomes an instrument that must be registered. See: NIGER CONSTRUCTION LTD. V. OGBIMI (2001) 18 NWLR (PT. 744) 83; IKONNE V. NWACHUKWU (1991) 2 NWLR (PT. 172) 214. Where the document does not confer title to land, it need not be registered. There is no doubt that Exhibit “A, A1” was tendered as document conferring title of the disputed land to the Appellant in which case the said Exhibit being a document of title must be duly authenticated and executed as required by Sections 3 and 15 of the Land Registration CAP. 58 Laws of Northern Nigeria, 1963, applicable to Plateau State.
I do agree with the lower Court that Exhibit “A, A1” as a document conferring title which ought to be registered but which was not registered was not duly authenticated and executed under the law and as such does not qualify as a document of title and cannot be relied on in proving title to the land in dispute herein.
It is for what I have said herein and for the fuller reasons adduced by my learned brother TANI YUSUF HASSAN, JCA that I agree that the appeal is wanting in merits. I too dismiss the appeal, while I affirm the judgment of the High Court of Plateau State sitting in its appellate jurisdiction in Suit No: PLD/J58A/2016. I abide by the order made as to costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I had read in advance the lead judgment of my learned brother Tani Yusuf Hassan, J.C.A., and I share my Lord’s views on the appeal. I also find the appeal unmeritorious and hereby dismiss it. I equally abide my Lord’s orders regarding costs.
Appearances:
Farmasum Fuddang For Appellant(s)
Obed Y.D. Vuamhi with him, N.T. Komak and K.K. Daban For Respondent(s)
