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I.A.D. NIGERIA LIMITED v. SAMPARACO NIGERIA LIMITED (2019)

I.A.D. NIGERIA LIMITED v. SAMPARACO NIGERIA LIMITED

(2019)LCN/13189(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of April, 2019

CA/YL/108/2017

 

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

I.A.D. (NIG) LIMITED Appellant(s)

AND

SAMPARACO (NIG) LIMITED Respondent(s)

RATIO

WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

There are five fundamental ways of proving title to land. A foremost authority in which these prerequisites were prescribed is the case of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 where the Supreme Court prescribed five ways of proving title to land thus: –
1) By traditional evidence
2) By document of title
3) By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
4) By act of lawful enjoyment and possession of the land.
By proof of possession of adjacent land in circumstances which render it probable that the owner of such land in addition be the owner of the adjacent land. See MOGAJI V. CADBURY NIGERIA LTD (1985) NWLR (Part 7) 393; LPELR ? 1889 SC. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways. See BIARIKO V. EDEH ? OGWUILE (2001) 12 NWLR (Part 726). Proof of one single root of title is sufficient to sustain the claimant?s claim for declaration of title to land. See ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Part 424) 252 and OLAGUNJU V. ADEOSOYE (2009) 9 NWLR (Part 1146) 225. PER BAYERO, J.C.A.

WHETHER OR NOT EVIDENCE NOT CHALLENGED IS DEEMED ADMITTED

This piece of evidence was not challenged or controverted during cross examination as reflected at Page 82 of the Record of Appeal. The law is trite that it is deemed admitted. See NIGER BENIN TRANSPORT CO. LTD. V. OKEKE (2005) AFWLR (Part 256) Page 1286. PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of Adamawa State High Court delivered by Hafsat Abdurrahman J., on the 10th day of February, 2017. By an amended statement of claim dated 2nd day of April, 2013, the Respondent who was the Plaintiff before the lower Court claimed against the Appellant who was the Defendant for:-
a) A declaration that the Plaintiff is the lawful and bonafide owner of a land measuring 8868.90m covered by Customary Certificate of Occupancy number YLSG/WKS/LAN/NAM/VOL. 1/535 dated 24th September, 2008 which is situate and lying along Yola ? Numan Road, Namtari District.
b) A declaration that the placing of trees, three electrical poles and the subsequent excavation and building of a wall on the Plaintiff?s land by the Defendant amounts to continuing trespass.
c) An order directing the Defendant to remove the three electrical poles unlawfully placed on the Plaintiff?s land and to demolish the wall unlawfully erected by the Defendant on the Plaintiff?s land.

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?d) ALTERNATIVELY an order directing the Defendant to pay the sum of N20 million only being the current market value of the land in dispute.
e) An order perpetually restraining the Defendant, its servants, agents, privies or any person or persons claiming through it from further trespassing onto the Plaintiff?s land.
f) The sum of N5,000,000 (Five Million Naira) as general damages for trespass to Plaintiff?s land.
g) Cost of filing this suit.

Pleadings were exchanged and issues joined. The Respondent called one witness and tendered four Exhibits (A. A1, B and B1). The Appellant neither called any witness nor tender any document in its defence. The lower Court delivered its Judgment and granted all the reliefs of the Respondent. Dissatisfied, the Appellant filed this Appeal via a Notice of Appeal filed on 24th April, 2017. The Record of Appeal was compiled and transmitted on 30th June, 2017. The original Appellant?s Brief of Argument was filed out of time by an order for extension of time granted on 31st November, 2017. It was further amended with leave granted and deemed filed and served on 24th November, 2018. The Respondent?s Brief of Argument was filed out of time by an

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order for extension of time granted on 21st June, 2018. It was deemed filed and served the same date.
The Notice of Appeal contained four (4) grounds of Appeal thus: –
GROUND ONE
The learned trial judge erred in law and fact when she held that the Plaintiff/Respondent has proved his title to the land in dispute on the ground that the only evidence before her is the evidence adduced by the Managing Director of the Plaintiff who testified as PW1.
PARTICULARS OF ERROR
1) The Plaintiff/Respondent claimed that he bought the land in dispute from one Ardo M. Kabiru, the Village Head of Namtari with sales agreement made between Samparaco (NIG) LTD and the said Ardo M. Kabiru.
2) No evidence was adduced by the Respondent as to how the said Ardo M. Kabiru acquired the land in dispute before selling same to Samparaco (NIG) LTD.
3) The said Ardo M. Kabiru was not called as a witness to adduce evidence as to how he acquired the land in dispute; no other witness was called by the Plaintiff/Respondent to trace the root of title of the said Ardo M. Kabiru in respect of the land in dispute.

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4) Even the sale agreement between the said Village Head of Namtari one Ardo M. Kabiru and Samparaco (NIG) Ltd did not in any way state how the Village Head of Namtari acquired the land in dispute and the District Head of Namtari who allegedly witnessed the sale transaction was not called to trace the root of title of the Village Head of Namtari in respect of the land in dispute.
5) The Plaintiff/Respondent has failed to prove his case as required by law to be entitled to a declaration of title in his favour and all other reliefs sought for before the trial Court.
GROUND TWO
The learned trial judge erred in law when she foreclosed the Appellant from giving evidence and thus decided the matter without hearing the evidence of the Appellant in defence to the Respondent?s claim which occasioned miscarriage of justice on the part of the Appellant.<br< p=””

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PARTICULARS OF ERROR
1) The matter commenced in the trial Court in the absence of the Appellant or his Counsel because the Court processes were served on the Appellant by substituted means.
2) Before the Appellant became aware of the suit pending against it before the trial Court, the evidence of PW1 who was the Respondent?s sole witness has been taken.
3) The Appellant quickly engaged the services of the law firm of B. R. ESTHON & PARTNERS who sought for extension of time to file the Memorandum of Appearance, Statement of Defence and the accompanying processes and same was granted.
4) The learned Counsel to the Appellant applied to recall PW1 who has already testified for cross examination and same was granted.
5) After several adjournments at the instance of the Respondent, PW1 eventually appeared before the trial Court and was cross examined and the matter was adjourned for defence.
6) After some adjournments at the instance of the appellant’s counsel, Counsel to the Respondent applied that the trial Court should foreclose the Appellant from defending the suit and same was granted by the trial Court.
7) The foreclosure of the Appellant has denied it the right to present its case which deprived the trial Court the opportunity to determine the matter on the merit.
GROUND THREE
The learned trial judge erred in law when she failed to avert her mind to the established principle of law that in a declaration of title to land, the Plaintiff must succeed on the strength of his case and not on the weakness of the defence.

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PARTICULARS OF ERROR
1) The learned trial judge entered judgment in favour of the Respondent solely because there was no evidence before her contradicting or denying the Respondent?s claims and therefore the Respondent?s claim is bound to succeed.
2) The learned trial judge did not put the evidence of the Respondent?s sole witness (PW1) into rigorous scrutiny to determine whether it was sufficient enough for the Respondent to be entitled to a declaration of title to the land in dispute.
3) Failure of the Appellant to adduce evidence in defence of the Respondent?s claim does not automatically entitle the Respondent to a declaration of the disputed land in his favour.
GROUND FOUR
The learned trial judge erred in law and fact when she awarded damages of N500,000.00 only against the Appellant in favour of the Respondent without assessing the level of trespass/damage done to the land if any.
PARTICULARS OF ERROR
1) The trial judge did not visit the land in dispute to see for herself what nature of trespass was committed and what

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damage was done if any, before arriving at the amount awarded as  general damages.
2) The award of N500,000.00 only as general damages in favour of the Respondent is more of speculations and conjectures since no assessment was done before award of same.

In arguing the Appeal, learned Appellant?s counsel formulated three issues for determination: –
1) Whether proof of root of title is essential to proof of title to land (Distilled from ground 1 of the grounds of Appeal.
2) Whether the foreclosure of the Appellant by the trial Court to enter its defence violated its right to fair hearing (Distilled from ground two of the grounds of Appeal)
3) Whether in a trial for declaration of land a Plaintiff succeeds on the strength of its case (Distilled from ground three of the grounds of Appeal).

On issue one, Counsel submitted that the lower Court erred in law when it held at Pages 32 to 33 of the Record of Appeal that the Respondent proved its claim by tendering the Sales Agreement (Exhibit A), Customary Certificate of Occupancy (Exhibit A1), Receipt for Payment of Ground Rent (Exhibit B) without calling the Village Head of Namtari to prove his

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root of title to the land in dispute. According to him, mere production of documents of title is not sufficient to discharge the onus on the Respondent in proving its title. He referred to AGBOOLA V. U.B.A. PLC (2011) 31 WRN Page 12 and EYO V. ONUOHA (2011) 39 WRN Page 1 at 46 Ratio 8.

As to the second issue, Counsel submitted that as shown at Pages 66, 74 and 77 of the Record of Appeal, the Respondent was obliged series of adjournments before it closed its case. That the Appellant was foreclosed by the trial Court from entering its defence based on application made by the Respondent?s Counsel that the Appellant has not shown interest in entering its defence. He referred to Page 84 of the Record of Appeal. Learned Counsel referred toIBRAHIM V. ADEKUNLE (2012) 22 W.R.N. 49 and submitted that the trial Court breached the Right to Fair Hearing of the Appellant.

As regards the third issue, it was the Counsel?s submission that the Respondent must succeed on the strength of its case by tracing the root of its title to the disputed land; and not on the weakness of the Appellant. He referred to OLATEJU V. SANNI (2011) 31 W.R.N. 87 and urged the

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Court to resolve all the three issues in favour of the Appellant, allow the Appeal and set aside the Judgment of the lower Court.

In his response, learned Respondent?s Counsel formulated two issues for determination: –
1) Whether the Respondent has proved its case on the preponderance of evidence before the trial Court (Distilled from grounds 1, 3 and 4).
2) Whether the Appellant was denied fair hearing by the trial Court (Distilled from ground 2).

According to Counsel, the Respondent has placed cogent, credible and unchallenged evidence before the lower Court that entitled it to Judgment. That PW1 testified how he purchased the disputed land on behalf of the Respondent from the District Head of Namtari; that he signed a Sales Agreement to that effect (Exhibit A) as reflected at Pages 75 ? 77 of the Record of Appeal. That the Respondent applied for the issuance of a Customary Certificate of Occupancy number YLSG/WKS/LAN/NAM/VOL.1/535 (Exhibit A1) and was issued to it covering the land in dispute. Learned Counsel further submitted that grounds rent were paid and that Exhibit B was issued to the Respondent.

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That Exhibit B1 is a letter demanding the Appellant to refrain from further acts of trespass on the Respondent?s land.

According to Counsel, the evidence of PW1 was neither controverted nor successfully challenged by the Appellant through cross examination; as such it was deemed admitted. On the issue raised by the Appellant that mere production of title documents does not entitle a party to a claim for declaration of title and referred to AGBOOLA V. U.B.A. PLC (Supra), learned counsel submitted that the Appellant must show by cogent evidence that the document was not genuine or valid. That it has not been duly executed, that the grantor has no authority to make the grant that the land does not belong to the grantor and the grant has no effect. Counsel submitted that the Appellant has failed to establish the above requirements of the law and urged the Court to so hold. As to the second issue, counsel submitted that it is on record from the proceedings of 6/02/2013, 8/02/2013, 22/02/2013, 1/03/2013, 4/04/2013 and 6/05/2013 that since the trial Court granted an order ex parte for substituted service on the Appellant, the Appellant refused to put up appearance.

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That on 9/04/2014 PW1 was recalled and cross examined by the Appellant?s Counsel. The matter was adjourned to 9/07/2014, 28/07/2014, 28/01/2016 and 7/04/2016 at the instance of the Appellant to open its defence but to no avail. That the Respondent?s Counsel applied for the right of the Appellant to enter its defence be closed and was granted. According to Counsel, the Appellant did not apply for the order to be vacated but opted to file its final written address. That the law is settled that fair hearing connotes that a party shall be given the opportunity to be heard. Once the opportunity is misused, the Court cannot be said to deny that party fair hearing. He referred to AHMAD V. AHMAD (2013) AFWLR (Part 699) Page 1025 at 1070 and DANTATA V. MOHAMMED (2013) AFWLR (Part 672) Page 1791 at 1801 and urged the Court to resolve all the issues in favour of the Respondent, dismiss the Appeal and affirm the Judgment of the lower Court with substantial cost.

There are five fundamental ways of proving title to land. A foremost authority in which these prerequisites were prescribed is the case of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 where the Supreme Court

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prescribed five ways of proving title to land thus: –
1) By traditional evidence
2) By document of title
3) By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
4) By act of lawful enjoyment and possession of the land.
By proof of possession of adjacent land in circumstances which render it probable that the owner of such land in addition be the owner of the adjacent land. See MOGAJI V. CADBURY NIGERIA LTD (1985) NWLR (Part 7) 393; LPELR ? 1889 SC. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways. See BIARIKO V. EDEH ? OGWUILE (2001) 12 NWLR (Part 726). Proof of one single root of title is sufficient to sustain the claimant?s claim for declaration of title to land. See ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Part 424) 252 and OLAGUNJU V. ADEOSOYE (2009) 9 NWLR (Part 1146) 225.

In reviewing the evidence adduced by both parties, in particular, the Respondent who had the burden to prove that he is entitled to the declaration of title of the land in

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dispute as he sought, the trial Court found that the Respondent was relying on Exhibits A, A1, B and B1 to prove his title to the land in dispute. Exhibit A is the Sale Agreement between the Respondent and the District Head of Namtari; Exhibit A1 is the Customary Certificate of Occupancy issued to the Respondent by Yola South Local Government Council. The trial Court had found and rightly too that:-
?It is trite law that all civil matters are determined on the preponderance of evidence placed before it. It is the submission of counsel for the Plaintiff that the Plaintiff has by both oral and documentary evidence prove the averments in its pleadings. See LAWAL V. U. B. N. PLC & ORS (1995) LRCN Page 107. The law allows both the Court and parties in civil suits to proceed and obtain Judgment in such circumstances. This instant case is one where a declaratory judgment is sought and which by law is entered upon. See ADEGBESAN V. R.T.C.M.G.M. (2013) AFWLR (Part 662) 1809 at 1813. PW1 testified as to how he came about the land in dispute Exhibits A, A1, B and B1 were tendered in proof of such.

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This evidence of PW1 was not challenged under cross examination?.therefore the claim of the Plaintiff is bound to succeed. See EGBUNIKE V. A.C.B. (1995) 27 LRCN Page 219 at 224. As earlier on indicated, the defendant after series of adjournments at their instance to commence they failed?.which eventually led to an order of foreclosure by the Court. The defendant neither call evidence or tendered any document in defence of the Plaintiff?s claim, but filed a written address. So the evidence before me is only that of PW1 (Director of the Plaintiff) which is to the effect that he bought the land from the Village Head of Namtari one Ardo M. Kabiru.covered by a sale agreement Exhibit A. Thereafter, he applied for Right of Occupancythis evidence was neither?.challenged or controverted which evidence I believe is cogent and convincing.
This being the only evidence before me, I am of the view that the Plaintiff has proved his title to the land in dispute. I therefore determine this issue in favour of the Plaintiff. Accordingly, Judgment is hereby entered for the Plaintiff against the Defendant

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From the evidence led before the lower Court as revealed from the Record of Appeal the Respondent (who was the Plaintiff before the lower Court), had placed before the trial Court cogent, credible and unchallenged evidence entitling it to Judgment. At Page 82 of the transmitted Record of Appeal PW1 proved that he purchased the disputed land from District Head of Namtari on behalf of the Respondent. Exhibit A is the sales Agreement. This piece of evidence was not challenged or controverted during cross examination as reflected at Page 82 of the Record of Appeal. The law is trite that it is deemed admitted. See NIGER BENIN TRANSPORT CO. LTD. V. OKEKE (2005) AFWLR (Part 256) Page 1286.

The document which further proved the title of the Respondent to the disputed land is the Certificate of Customary title issued to it by Yola South Local Government (Exhibit A1). This is because in IDUNDUN V. OKUMAGBA (Supra) it was held that proof of document of title is one of the ways of proving title to land.

Furthermore, in ONWUGBUFOR V. OKOYE (Supra), it was established that proof of one single root of title is sufficient to sustain claimant?s claim of title to land.

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On the issue of the violation of the Appellant?s right of fair hearing by foreclosing its right to enter its defence by the lower Court, from the Record of Appeal at Pages 82, 83 and 84, the Respondent?s representative (PW1) was cross-examined and discharged on 9/04/2014. The matter was adjourned to 12/05/2014, 10/06/2014, 9/07/2014; 28/01/2016 and 7/04/2016 to allow the Appellant enter its defence but did not utilize that opportunity. The trial Court on the application of the Respondent?s counsel, foreclosed the right of the Appellant to enter its defence. The right to fair hearing connotes that a party is given the opportunity to be heard, it is not the duty of the Court to make sure that the party takes advantage of such opportunity. A party who fails or refuses to take advantage of the fair hearing process created by the Court, cannot complain for lack of fair hearing. See AHMAD V. AHMAD (2013) AFWLR (Part 699) 1025 at 1970. The Appellant having been given the opportunity to be heard which he did not utilize, cannot complain of lack of hearing by the lower Court.

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After a thorough appraisal of the Notice of Appeal, the Briefs of Counsel and the Record of Appeal, I find that this Appeal is unmeritorious and is accordingly dismissed. I affirm the decision of the lower Court delivered on 10th February, 2017. No cost awarded.

CHIDI NWAOMA UWA, J.C.A.: I was obliged with an advance draft copy of the judgment delivered by my learned brother, Abdullahi Mahmud Bayero, JCA, I agree with the decision arrived at in holding that the appeal is unmeritorious and the order dismissing same. I also dismiss it for the same reasons and abide by the order awarding no cost in the leading judgment.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance in draft the lead judgment just delivered by my learned brother ABDULLAHI MAHMUD BAYERO JCA.

As usual, fair hearing is sought to be made the whipping principle by the Appellant which refused to avail itself of the opportunity to defend the suit. It cannot be allowed to do that.

In the face of overwhelming evidence adduced by the Respondent, the Court below rightly entered judgment in its favour.

?I agree entirely with my learned brother Bayero JCA that the appeal is devoid of merit and should be

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dismissed. It is dismissed by me. The judgment of the Court below is affirmed.
I abide by all other orders including the order as to costs.

 

 

 

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Appearances:

B. R. Esthon, Esq.For Appellant(s)

Ahmad Isa, Esq.For Respondent(s)

 

Appearances

B. R. Esthon, Esq.For Appellant

 

AND

Ahmad Isa, Esq.For Respondent