JIABU v. TYONZUGHUL & ANOR
(2022)LCN/16938(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, October 20, 2022
CA/MK/34/2019
Before Our Lordships:
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
RAYMOND TERHEMEN JIABU, ESQ. (Substituted Hon. Alhaji Jiabu Ityavyer Yakubu) APPELANT(S)
And
1. MRS. LADI TYONZUGHUL 2. DR. TYONZUGHUL RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHERE A CLAIMANT’S VENDOR’S TITLE IS PUT IN ISSUE
It is clear from the foregoing that the title of the appellant’s vendor and his capacity to sell the land in dispute has been touched and the law is well settled that once the claimant’s vendor’s title is put in issue, he must in order to succeed, first prove the said vendor’s title since the purchaser cannot get a better title than that passed onto him by the said vendor. This is because one cannot give what he does not have otherwise expressed as nemo dat quod non habet in latin. See Barau vs. Consolidated Tin Mines Ltd. (2019) LPELR-46806 (CA); NSITF vs. Iyen (2014) 9 NWLR Pt. 1412, pg. 217, 326 and Egbuta vs. Onuna (2007) 10 NWLR Pt. 1042, pg. 298 at 345.
It is thus the duty of the appellant to clear this dust hovering on lack of capacity on the part of his purported vendor to sell the land in dispute. The alleged customary entitlement of the appellant’s vendor as it relates to the land in dispute is quite in issue and needed further proof. It is not just enough to allege that the vendor (Hwuku Adanyi) has been in long possession and is a customary title holder of the land. Appellant failed to plead and prove how the vendor became the customary title holder which is to say the root of his title that put him in possession of the land. Exhibit 1 which is the Agreement between Baba Hwuku Adanyi and the appellant being the purported Agreement they entered into on 29th April, 2011 is no proof of the title on its own unless, the appellant first established the root of the vendor’s title. Without proof of the vendor’s root of title, the appellant cannot begin to fall back on possession. The apex Court brought it out succinctly in the authority of Otanma vs. Youdubagha (2006) LPELR-2821(SC) per Musdapher JSC., pg. 23, paras. D-F where he held thus:
“…. It was decided in the case of Bamgboye vs. Olusoga (1996) 4 NWLR Pt. 444, pg. 520, that where in a declaration of title to land, a party bases his title on a purchase or grant according to custom by a particular individual as in this case, that party must go further to plead and prove the origin of the title of that particular person. Consequently, mere production of a purchase receipt, is not sufficient. See Ogunleye vs. Oni (1990) 2 NWLR Pt. 64; Piaro vs. Tenalo (1976) 12 SC 31.” See further Ashiru vs. Olukoya (2006) LPELR-580 (SC); and Thompson vs. Arowolo (2003) LPELR-3240 (SC), pg. 67, paras. D-F. PER JOMBO-OFO, J.C.A.
THE POSITION OF LAW ON WHERE NO OBJECTION IS RAISED TO A TENDERED DOCUMENT
The law is well settled that where no objection is raised as in the instant scenario, when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later be heard to complain about its admissibility in law. See Etim vs. Ekpe (1983) 1 SCNLR 120; Viwanu-Ojo vs. Towakennu (2015) LPELR-41989(CA); Adamu vs. LEEDO Presidential Hotel Ltd. (2015) LPELR-25918(CA), pg. 37, paras. A-D; Olugun vs. Fatayo (2013) 1 NWLR Pt. 1335, pg. 303; and Aiyeola vs. Pedro (2014) 13 NWLR Pt. 1424, pg. 409. PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice T. A. Igoche J., of the Benue State High Court sitting in Makurdi (hereinafter referred to as lower/trial Court) delivered 6th August, 2018 wherein the lower Court dismissed the appellant’s suit and granted in part the counter claim of the respondents. (See pages 241 – 252 of the printed record of appeal).
The appellant herein is a substitute to the original plaintiff who instituted the suit No. MHC/330/2012 vide an order of the lower Court granted 12th July, 2013.
By way of a writ of summons and the accompanying statement of claim, the plaintiff sought the following reliefs as contained in paragraph 15 (a-f) against the defendants at the lower Court:
a. Declaration that by virtue of the agreement between the plaintiff’s father, Late HON. ALHAJI JIABU YAKUBU and one Baba Hwuku Adanyi dated 9th April, 2011, the parcel of land in issue measuring 100ft by 100ft, lying and situate at behind BNARDA, Makurdi, had been sold to my late father, by the customary title holder in possession, to the exclusion of any other person including the defendants.
b. Declaration that, having purchased the parcel of land in issue without any prior encumbrances, from the bona fide title holder in possession of the land, which my father immediately took possession of the land was no longer available to be subsequently sold to any other person including the defendants.
c. Declaration that my father’s vendor son neither has the right to sell nor the title to have passed over the land in dispute.
d. Perpetual injunction restraining the defendants, either by self, servants, privies, agents or through whomsoever from further trespass on to the land and or disturbing our quiet possession, use and enjoyment of the parcel of land in issue.
e. General Damages against the defendants, jointly and severally in the sum of Fifty Million Naira (N50,000,000.00) only for trespass and general inconveniences.
f. Cost of prosecuting this suit. (See from pages 1 – 22 of the record of appeal).
Upon the receipt of the writ of summons and all other initiating processes, the defendants filed their statement of defence and counter claim on 9th February, 2013, which process was subsequently amended with the leave of the trial Court. (See pages 123 – 148 of the record of appeal).
The plaintiff filed a reply to the defence of the respondents and accompanied the same with additional statement on oath in reply to the defence and counter claim of the respondents. (See pages 149 – 157 of the record).
With the conclusion of filing of requisite processes, the matter proceeded to trial wherein the plaintiff testified in person and subpoenaed the Ministry of Lands and Survey to testify and tender a Certified True Copy of File No. BNA 4595 in evidence. The plaintiff tendered the following documents in evidence:
i. Agreement between BABA HWUKU ADANYI AND HON. ALHAJI JIABU ITYAVYAR YAKUBU dated 29th April, 2011 – Exhibit 1.
ii. Makurdi TPS 161, – Exhibit 2.
iii. Certified True Copy of File No. BNA 4595, – Exhibit 3.
2nd respondent who testified alone in his defence, tendered the following documents in evidence:
a. Certified True Copy of File No. BNA 4595, – Exhibit 4.
b. Right of Occupancy No. BNA 4595, – Exhibit 5.
c. Proceedings and deliberations of Genabe District Council of Chiefs, Bar Ward, Makurdi Local Government Area, dated 1/6/2012, – Exhibit 6.
d. Receipts evidencing payment of Grant Rent from the period of 2005-2011, – Exhibit 7A.
e. Revalidation Fee receipt dated 27/10/2005, – Exhibit 7B
f. Sales/Invoice dated 15/12/2011, – Exhibit 8.
g. The 2nd defendant’s signature specimen, – Exhibit 9.
At the close of evidence and filing and exchange of final written addresses, the learned trial Judge in his considered judgment delivered 6th August, 2018, dismissed the plaintiff’s suit, granted the respondents’ counter claim in part and awarded the land in dispute to the 1st respondent. (See pages 241 – 252 of the record of appeal).
Aggrieved by the judgment, the plaintiff as appellant filed a Notice of Appeal on 1st November, 2018. (See pages 253 – 259 of the record of appeal). The record of appeal was compiled and transmitted to this Court 12th March, 2019.
In line with the practice and rules of this Court the parties filed and exchanged briefs of argument. The appellant’s brief of argument which was filed out of time on 25th February, 2020 but deemed properly filed and served 23rd March, 2022 was settled by Cleopatra Atsor, Esq. The respondents’ brief which was filed 22nd April, 2022 was settled by J. K. Ude, Esq.
At the hearing of the appeal briefs were duly adopted by the parties.
From the 5 (five) grounds of the Notice and Grounds of Appeal, the appellant crafted the following 4 (four) issues for determination of the appeal:
i. Whether the trial Court was right in holding the Appellant’s case not proved on the ground that he did not prove how his vendor came to the land, part of which was sold to the Appellant. [Ground 1 of the grounds of Appeal].
ii. Whether the trial Court was right when it based its decision to discredit the right and title of the Appellant’s Vendor to the piece of land in dispute and EXHIBIT 6 which does not concern or bind the Appellant. [Ground 2].
iii. Whether the trial Court was right and adequately evaluated the evidence on record when it held that the Evidence of PW2 on Exhibit 2 amounts to admission against interest. [Ground 3].
iv. Whether by the admissible evidence on record, the trial Court was right in holding that the 1st respondent was granted title to the piece of land in dispute. [Grounds 4 and 5 of the grounds of Appeal].
On the part of the respondents, they crafted a lone issue as arising from the grounds of appeal for determination to wit:
a. Whether upon an objective evaluation of the available evidence placed by both parties at the trial, the learned trial Judge was right in dismissing the Appellant’s case and finding the Respondent’s counter claim proved and reliefs granted therein? (Distilled from the Appellant’s Grounds 1, 2, 3, 4 and 5).
I have studied the issues as crafted above by both sides and, I think it will be in the best interest of justice to adopt and determine the appeal based on the issues as set out by the appellant, more so as the appellant is the one aching under the weight of the judgment as it were. The issues donated by the appellant are so adopted.
ISSUE 1 (ONE)
Whether the trial Court was right in holding the Appellant’s case not proved on the ground that he did not prove how his vendor came to the land, part of which was sold to the Appellant.
While arguing this issue, the learned counsel for the appellant submitted that the trial Court was wrong to hold that the evidence of the plaintiff is short of that which is required of him in proving the title of his vendor sufficient enough to entitle him to the reliefs sought from the trial Court. He submitted that from the evidence of the appellants, the customary ownership of the land in dispute was not an issue. Counsel argued that throughout the length and breadth of the evidence of the appellant, the evidence of the unchallenged title, use and uninterrupted possession of the appellant’s vendor was unchallenged. Counsel submitted that by the pleadings of the parties and particularly the admission in the statement of defence to the effect that both the respondents and the Government of Benue State admitted the customary rights and possession of the appellant’s vendor in the region, the said rights and title of the appellant’s vendor was not an issue that required further proof as erroneously held by the trial Court. See the authorities of Onyia vs. Onyia (2011) vol. 46 WRN 73 at 88-89, lines 40-45; and Alhassan vs. Ishaku (2017) All FWLR Pt. 866, pg. 209 at 315, paras. C-D upon which counsel placed reliance to submit that if the trial Court had properly taken into account the evidence before it to the effect that the customary title of the appellant’s vendor was never in dispute, the Court would have taken a different stance and would have averted the grave miscarriage of justice occasioned on the appellant. Counsel prayed on this Court to step in for a rescue in the circumstances of this case and in the interest of justice.
Learned counsel urged a resolution of issue 1 (one) in favour of the appellant and allow this appeal.
ISSUE 2 (TWO)
Whether the trial Court was right when it based its decision to discredit the right and title of the Appellant’s Vendor to the piece of land in dispute and EXHIBIT 6 which does not concern or bind the Appellant.
Learned counsel for the appellant submitted herein that the trial Court placed premium on Exhibit 6 tendered in evidence by the respondent. Exhibit 6 is the minutes of a purported proceedings of GENABE DISTRICT COUNCIL OF CHIEFS wherein the dispute arbitrated upon was between the 1st respondent and Ihwuakwu Adanyi which neither relates to nor concerns the appellant. Counsel contended that the appellant was not involved in the dispute which in turn was not in relation to his own portion of land.
He argued further that the land the subject matter of the arbitration between different parties has its description radically different from the land which the appellant purchased from his own vendor in terms of specific size, location and time of purchase. (See pages 248-249 and 250 of the records). Learned counsel canvassed that the position of the learned trial Judge as reflected at page 250, line 10 of his judgment is not only hasty, speculative and devoid of any valid evidence but it is also in flagrant breach of the appellant’s fundamental right to fair hearing as the same is tantamount to importation of a non-binding decision against a non-party to a particular action. Counsel went on to submit that Exhibit 6 though admitted in evidence by the trial Court, is inadmissible and ought to have been expunged for having no relevance to the case of the respondent and being an inadmissible documentary hearsay as far as the 2nd respondent through whom it was tendered is concerned. Learned counsel contended that the 2nd respondent through whom Exhibit 6 was tendered is neither the maker of the document nor has he any link with same. That the 2nd respondent had no personal knowledge of what transpired in the document or at the arbitration as he did not participate in it. There is nothing in the evidence to suggest any foundation for any exceptions as allowed under Section 83 of the Evidence Act, 2011. See also Onyekwuluje vs. Animashaun (2019) All FWLR Pt. 1007, pg. 769 at 795, paras. B-C; Daniel vs. Alex Kadiri (2011) 14 WRN 160, 169, lines 31 – 44; Evvaruese vs. Uwagboe (2015) All FWLR Pt. 767, pg. 741 at 762, paras. A-B; and Ironkwe vs. UBA Plc. (2017) All FWLR Pt. 879, pg. 650 at 685, paras. C-E.
It was the further contention of the learned counsel for the appellant that the trial Court had no answer to its question of whether the land referred to in Exhibit 6 is the same as the land in dispute from the evidence of the respondents, yet the Court answered the said question by implication against the appellant. This occasioned grave error anchored on speculation when it did not properly avert its mind to either the law or the evidence on record for proper application to the case of the appellant. Relying on the decisions in Anyanwu vs. Uzowuaka (2009) All FWLR Pt. 499, pg. 411 at 446, paras. E-C; and Adeleke vs. Iyanda (2001) 13 NWLR Pt. 721, pg. 1, the counsel urged on us to reverse the decision of the lower Court for being perverse and decide the case based on the justice the case deserved and thus resolve issue 2 (two) in favour of the appellant and allow the appeal.
ISSUE 3 (THREE)
Whether the trial Court was right and adequately evaluated the evidence on record when it held that the Evidence of PW2 on Exhibit 2 amounts to admission against interest.
AND
ISSUE 4 (FOUR)
Whether by the admissible evidence on record, the trial Court was right in holding that the 1st respondent was granted title to the piece of land in dispute.
On issues 3 (three) and 4 (four) argued together, the learned counsel for the appellant submitted that the trial Court was wrong in its view as held at page 250, para. 2, lines 7 to 13 of the record of appeal. Counsel submits that the case of the appellant remains unchallenged that the area where his land is located falls outside a layout or a planned area. See excerpts from pages 247 to 248, para. 3, last 3 lines to the first 3 lines on pg. 248 of the record. Therein Exhibit 2 ably described by the lower Court and which does not show any link with the particular land in dispute was what the trial Court held that the evidence of PW2, that was held by the said lower Court to be an admission against interest and for which the case of the respondents was preferred and held proved.
Learned counsel submitted and urged on us to hold that had the trial Court properly addressed its mind to the incredibility of Exhibit 2 and its probative value along with the evidence on record, it would have realized that:
a. The plots of land contained in such wild TPS [Exh. 2] and in particular Plot 4595 has not been shown by any credible evidence to be the plot of land outside the layout and without any marked beacons as in the piece of land which appellant purchased and took possession of from the locals/customary title holder.
b. The PW2 did not admit that the TPS [Exh. 2] and Plot No. 4595 are the same with the Plot in possession of the appellant.
c. No question was asked the PW2 to link any of the Plots in the TPS with the particular piece of land in appellant’s possession.
d. The agreement with the submission of the respondent’s counsel that there was an admission against interest in the circumstances of the evidence in the instant case is not borne out of the true admissible evidence.
Counsel argued that the trial Court was wrong to enter judgment in favour of the 1st respondent whose counter claim was not only devoid of admissible evidence but riddled with admission against her interest, contradictory and incredible documents. Counsel canvassed that the decision of the trial Court which placed premium on proof by production of title documents, especially Exhibit 5, against the customary title which was transferred to the appellant through purchase, is against the position of the law which requires that, a proof anchored on production of title document carries with it additional burden as the production of a certificate of occupancy granted is not automatic entitlement to a piece of land claimed. See Bello vs. Sanda (2013) All FWLR Pt. 636, pg. 462 at 479, paras. D-G; and Nwankwo vs. Jubril (2012) All FWLR Pt. 646, pg. 483 at 510.
Counsel contends that where a certificate of occupancy has been granted to a claimant who could not prove a better title, it must be deemed to be defective and to have been issued in error and against the spirit of the Land Use Act. He also submits that the appellant’s root is a deemed grant through his vendor and whose title predates the Land Use Act. This is more so when there is no evidence to show that the appellant’s title had previously been extinguished.
Counsel further submitted that the contradictions in the evidence of the 2nd respondent as DW1 regarding the land claimed by them show that the respondents do not know the actual location of the land to be processed for the 1st respondent. That despite the failure of the 2nd respondent to prove the alleged title of the 1st respondent to the plot of land in possession of the appellant, the trial Court found for the respondents and this occasioned a miscarriage of justice on the appellant and we are urged to so hold. We are urged to resolve all the issues herein in favour of the appellant and allow this appeal in the interest of justice.
On the converse and as submitted by the learned counsel to both respondents, the lone issue as proffered by them should be answered in the affirmative. Submits that the appellant did not lead any credible evidence at the lower Court to show proof of ownership of the land. He contended that both the title of appellant’s vendor and his capacity to sell was challenged and for the appellant to be entitled to a declaration of title as claimed by him, he must prove the vendor’s root of title. See paragraphs 1 and 6 of the respondents’ Joint Amended Statement of Defence contained at pages 123 – 128 of the record of appeal. See Ashiru vs. Olukoya (2006) LPELR-580(SC), pg. 32, paras. B-C; and Thompson vs. Arowolo (2003) LPELR-3240(SC), pg. 67, paras. D-F.
Respondents contend that the fact that the appellant’s vendor (Hwuku Adanyi) was one of the oldest residents on the land did not absolve the appellant from establishing the root of title of the said vendor. See Ayanru vs. Mandilas Ltd. (2007) 10 NWLR Pt. 1043, pg. 462 at 477-478, paras. H-C; and Tukuru vs. Sabi (2013) 10 NWLR Pt. 1363, pg. 442 SC. Respondents argue that the admissibility of Exhibit 6 in evidence is a fresh issue in this Court for which no leave was sought and obtained. Moreover, the appellant did not raise it as one of the grounds of appeal. It is thus incompetent and ought to be discountenanced. See Adamu vs. Leedo Presidential Motel Ltd. (2015) LPELR-25918, pg. 37, paras. A-D, per Abiru, JCA., Ologun vs. Fatayo (2013) 1 NWLR Pt. 1335, pg. 303; and Aiyeola vs. Pedro (2014) 13 NWLR Pt. 1424, pg. 409. Counsel however, submits that Exhibit 6 cannot be said to be documentary hearsay same having been tendered through the 2nd respondent (DW1) who was privy to the making of same. See Viwanu-Ojo vs. Towakennu (2015) LPELR-41989(CA).
It was the further contention of the respondents that the appellant in order to identify or specify the evidence, improperly evaluated or not evaluated, ought to have compared the evidence (both in-chief, and under cross-examination) with the findings of the lower Court, making copious reference to the record of appeal in each of such cases, in order for this Court to determine whether or not there was proper evaluation of the evidence as done by the lower Court. Failure of the appellant to do a particularization of the evidence said to be wrongly evaluated as is the case in this instance, ought to be discountenanced. See Ozuzu vs. Emewu (2019) 13 NWLR Pt. 1688, pg. 143 at 159, paras. A-C (SC).
Learned counsel went further to canvass pursuant to the provisions of Sections 5, 13 and 14 of the Land Use Act, 1978, that since the 1st respondent is validly granted statutory right of occupancy, she becomes a title holder with exclusive rights to occupy and improve the land against all others except the Governor. See Teniola vs. Olohunkun (1999) 4 SCNJ 98 at 102-104; Obasohan vs. Omorodion (2001) 13 NWLR Pt. 729, pg. 206; and Saude vs. Abdullahi (1989) 4 NWLR Pt. 116, pg. 387 at 416, paras. D-E.
Learned counsel submitted in conclusion that the appeal lacks merit as appellant failed to show that the findings of the lower Court are perverse. He urged on us not to disturb the findings of the trial Court so made.
DETERMINATION OF ISSUE 1 (ONE)
Whether the trial Court was right in holding the Appellant’s case not proved on the ground that he did not prove how his vendor came to the land, part of which was sold to the Appellant.
It can be garnered from paragraphs 4, 5, 6, 7 and 8 of the appellant’s sworn statement on oath, which paragraphs align with paragraphs 4, 5, 6, 7, 8 and 9 of the statement of claim, that the appellant’s claim over the disputed land is anchored on purchase from one Baba Hwuku Adanyi, a purported customary owner of same. (See pages 5 – 6 and 153 – 155 of the record of appeal). At para.1 (f) of the respondents’ Amended Joint Statement of Defence and Counter-Claim they had made averment to the extent that:
1 (f). Upon enquiry the defendants confirmed from the Ministry of Land and Survey that Government had indeed established a layout in the region of plaintiff’s purported vendor’s residence and also allocated several plots to the Hwuku Adanyi family and other settlers as customary tenants. [Underlining supplied. (See page 124 of the record of appeal)].
Furthermore, the DW1 who herein is the 2nd respondent while being cross-examined at the lower Court had testified inter alia that:
… Ihwaku Adanyi was one of the oldest residents on the land. My first contact with the land was through the son of Ihwaku Adanyi. He told me that the Ministry of Lands was doing a layout in the area and that if I was interested I should contact the Ministry…. (See page 234 of the record of appeal).
There is obviously no gainsaying the fact that it is common ground between the parties that Baba Hwuku Adanyi was one of the oldest settlers on the land part of which he subsequently sold to the appellant. However, the contention of the respondents is that at the time of the said sale, the said vendor (Hwuku Adanyi) had nothing to sell which is to say that he had no title to bestow on the appellant. See paragraphs 1 and 6 of the Amended Statement of Defence of the respondents contained at pages 125 and 126 of the record of appeal and which are reproduced hereunder:
1. The defendants vehemently deny paragraph 3 of the Plaintiff’s claim and aver as follows:
a) That the subject plot of land described in paragraph 3 of the Plaintiff’s claim did not belong to the Plaintiff’s alleged vendor by name Baba Hwuku Adanyi as of the time he purportedly sold same to the Plaintiff vide their alleged Agreement of 29th April, 2011.
b) That the said Hwuku Adanyi is an unabashed and notorious land speculator and even boasted at times that he owned so much land that he gave out the same plot of land to the 1st defendant as a gift in appreciation of the goodwill and assistance always extended by the defendants to members of his family.
6. The Defendant vehemently deny paragraphs 11, 12, 13 and 14 of the claim and will at the trial of this suit contend that the plaintiff’s purported vendor Mr. Hwuku Adanyi has no right or authority whatsoever to have sold the Defendants’ plot of land covered by the Statutory Right of Occupancy No. BNA 4595 to the plaintiff and will content (sic) at the trial that any such purported sell or sale is illegal, void and of no effect.
It is clear from the foregoing that the title of the appellant’s vendor and his capacity to sell the land in dispute has been touched and the law is well settled that once the claimant’s vendor’s title is put in issue, he must in order to succeed, first prove the said vendor’s title since the purchaser cannot get a better title than that passed onto him by the said vendor. This is because one cannot give what he does not have otherwise expressed as nemo dat quod non habet in latin. See Barau vs. Consolidated Tin Mines Ltd. (2019) LPELR-46806 (CA); NSITF vs. Iyen (2014) 9 NWLR Pt. 1412, pg. 217, 326 and Egbuta vs. Onuna (2007) 10 NWLR Pt. 1042, pg. 298 at 345.
It is thus the duty of the appellant to clear this dust hovering on lack of capacity on the part of his purported vendor to sell the land in dispute. The alleged customary entitlement of the appellant’s vendor as it relates to the land in dispute is quite in issue and needed further proof. It is not just enough to allege that the vendor (Hwuku Adanyi) has been in long possession and is a customary title holder of the land. Appellant failed to plead and prove how the vendor became the customary title holder which is to say the root of his title that put him in possession of the land. Exhibit 1 which is the Agreement between Baba Hwuku Adanyi and the appellant being the purported Agreement they entered into on 29th April, 2011 is no proof of the title on its own unless, the appellant first established the root of the vendor’s title. Without proof of the vendor’s root of title, the appellant cannot begin to fall back on possession. The apex Court brought it out succinctly in the authority of Otanma vs. Youdubagha (2006) LPELR-2821(SC) per Musdapher JSC., pg. 23, paras. D-F where he held thus:
“…. It was decided in the case of Bamgboye vs. Olusoga (1996) 4 NWLR Pt. 444, pg. 520, that where in a declaration of title to land, a party bases his title on a purchase or grant according to custom by a particular individual as in this case, that party must go further to plead and prove the origin of the title of that particular person. Consequently, mere production of a purchase receipt, is not sufficient. See Ogunleye vs. Oni (1990) 2 NWLR Pt. 64; Piaro vs. Tenalo (1976) 12 SC 31.” See further Ashiru vs. Olukoya (2006) LPELR-580 (SC); and Thompson vs. Arowolo (2003) LPELR-3240 (SC), pg. 67, paras. D-F.
The learned trial Judge in the instant case aptly stated the position of the law when he held as follows:
“… the plaintiff (appellant) simply said that his vendor was one of the earlier settlers on the land without stating how he came to settle on the land. His evidence is short of that proof. The plaintiff’s case is worsen (sic) by the Genabe Council of Chiefs that Zakilhwaku Adanyi was a land speculator who has no single empty land to sell at the time he sold land to Dominic Agber between February to March, 2011. That means he couldn’t (sic) have had land to sell to the plaintiff’s father in 2011. (See page 250 of the record of appeal).
To my mind being one of the oldest settlers on the land does not automatically qualify such settler to the customary entitlement of the land. The position of the law is that a Plaintiff in a declaration of title to land who bases his claim on customary title, must give satisfactory evidence of how his vendor derived the particular title pleaded and claimed. The burden which is on the Plaintiff in such an action, is to lead clear evidence that is sufficiently cogent and credible, in proof of the particular root of title relied on. See Ibrahim Muli vs. Sali Akwai (2021) LPELR-54903(CA). Not even an admission or lack of denial as submitted by the appellant in the instant case will entitle the appellant to a declaration of title in the absence of satisfactory proof of his vendor’s root of title. In Mulima vs. Usman (2014) 16 NWLR Pt. 1432, pg. 172 the Supreme Court laid down the principle regarding declaration of title to land to include thus:
In a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. What this means is that whenever a Court is called upon to make such a declaration as to the title of a party claiming to a piece of land, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence and not by mere admission in the pleadings of the defendant that he is so entitled.
See further the authorities of Ayanru vs. Mandilas Ltd. (2007) 10 NWLR Pt. 1043, pg. 462 at 477-478, paras. H-C; and Tukuru vs. Sabi (2013) 10 NWLR Pt. 1363, pg. 442 SC.
It is in the event of my reasoning above that I shall answer issue 1 (one) which is whether the trial Court was right in holding the appellant’s case not proved on the ground that he did not prove how his vendor came to the land, part of which was sold to the appellant, in the affirmative. The trial Court was indeed right in this regard. Issue 1 (one) is accordingly resolved in favour of the respondents and against the appellant.
RESOLUTION OF ISSUE 2 (TWO)
Whether the trial Court was right when it based its decision to discredit the right and title of the Appellant’s Vendor to the piece of land in dispute and EXHIBIT 6 which does not concern or bind the Appellant.
I do agree out rightly with the learned counsel for the respondents that the submissions of the learned counsel for the appellant to the effect that Exhibit ‘6’ is inadmissible in evidence given that it was tendered through the 2nd respondent (DW1) and hence it was a land dispute (subject matter of this appeal) between the respondents, Dominic Agber and Hwuku Adanyi (appellant’s vendor), the said Exhibit ‘6’ is not binding on the appellant in the circumstances – that the submission holds no water. In the first place the issue of admissibility of the said Exhibit ‘6’ is a fresh issue in this Court for which no leave of this Court was sought and obtained. Exhibit ‘6’ was tendered and admitted at the lower Court without any objection. See page 231 of the record of appeal for the proceedings which for purposes of clarity is reproduced hereunder:
DW1-continues-I reported the matter to the Traditional council and I have a copy of the council’s deliberation. Here it is.
Chief E. K. Ashiekaa Esq.-I apply to tender the deliberation of the council.
S. O. Idikwu Esq.-no objection.
Court-Certified True Copy of the proceedings of Genabe District Council of Chiefs, Bar Council Ward, Makurdi Local Government Area, Benue State over Land dispute between Mrs. Tyonzgul and ZakiIhwaku Adanyi dated 1/6/2012 (Friday) is admitted in evidence as exhibit 6. It is taken as read.
Signed
T. A. Igoche
Judge.
The law is well settled that where no objection is raised as in the instant scenario, when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later be heard to complain about its admissibility in law. See Etim vs. Ekpe (1983) 1 SCNLR 120; Viwanu-Ojo vs. Towakennu (2015) LPELR-41989(CA); Adamu vs. LEEDO Presidential Hotel Ltd. (2015) LPELR-25918(CA), pg. 37, paras. A-D; Olugun vs. Fatayo (2013) 1 NWLR Pt. 1335, pg. 303; and Aiyeola vs. Pedro (2014) 13 NWLR Pt. 1424, pg. 409.
Appellant’s submission in this regard is in this vein discountenanced, more so as the said Exhibit ‘6’ was aptly relevant being a traditional record of proceeding presided over by GENABE DISTRICT COUNCIL OF CHIEFS and the same was duly pleaded. Exhibit ‘6’ covers a land in which the 2nd respondent (through whom it was tendered and admitted in evidence) is privy to the making of same, likewise the appellant’s vendor (Ihwaku Adanyi). Exhibit ‘6’ is by no means a documentary hearsay as the appellant has laboured to make it out to be. The learned trial Court was therefore right in attaching importance to and acting on the said Exhibit ‘6’ in arriving at the conclusion that the appellant failed to plead and prove the title of Hwuku Adanyi (his vendor) as required by law. Issue 2 (two) is thus settled in favour of the respondents and against the appellant.
ISSUES 3 (THREE) AND 4 (FOUR) DETERMINED TOGETHER
Whether the trial Court was right and adequately evaluated the evidence on record when it held that the Evidence of PW2 on Exhibit 2 amounts to admission against interest.
AND
Whether by the admissible evidence on record, the trial Court was right in holding that the 1st respondent was granted title to the piece of land in dispute.
The learned counsel for the appellant has invited this Court to the findings and holdings of the lower Court in its judgment contained at page 250, para. 2, lines 7 to 13 which read thus:
“… it is noted that the plaintiff’s witness, PW2 confirmed the existence of Exhibit 2 and said that the Benue State Government made it for the purpose of granting same to individuals who apply for it. He identified plot BNA 4595 in Exhibit 2 granted to the 1stdefendant vide her application dated 19/7/1989. The fact of Benue State Government acquiring land in that area is not in dispute. I agree with the defence counsel that the PW2’s evidence on Exhibit 2 is an admission against interest on the part of the plaintiff”.
The foregoing findings of the learned trial Judge is borne primarily out of the evidence of the PW2, the subpoenaed staff of the Benue State Ministry of Lands and Survey. He had said in his evidence-in-chief inter alia:
… I was the one who brought Exhibit 2 and I say that it covers only the area that is planned.
PW2 went further under cross examination to state as follows:
“… I am aware of Exhibit 2. It is our document. I see Exhibit 2. It is TPS 161. I cannot identify the plot No. BNA 4595 in Exhibit 2 because the printing is very faint. I have seen where the counsel has marked Exhibit 2. I can see plot No. 4595. The Benue State Government made Exhibit 2 for the purpose of granting same to individuals who apply for it…” (See page 226 of the record of appeal).
As rightly found by the learned trial Judge, Exhibit 2 is rather illegible and the printing quite faint. The only legible content borne out of it, is the endorsement by the Surveyor General to wit: Certified True Copy, signed and dated 15/2/2016. It is a site plan with no title or description of the area covered by it. Be that as it may, the document was produced and admitted in evidence as Exhibit 2 at the instance of the plaintiff/appellant. Exhibit 2 which obviously is not worth the while or even relevant given its illegibility, is by all means an admission against the interest of the said appellant. Issue 3 (three) is herein resolved in favour of the respondents and against the appellant.
On the appellant’s contention that the respondents also failed to prove title by production of title document on the said plot in dispute, the respondents led cogent and unchallenged evidence in proof of the fact that:
i. Exhibit 5, which is the original copy of The Grant of A Right of Occupancy No. BNA 4595 dated 21st October, 1991 was issued in the name of Ladi Ityonzughul, Ministry of Health, Makurdi;
ii. The then Military Governor as the grantor, had the capacity and authority to make the grant;
iii. At the time of the grant the land was not in any way encumbered, hence valid title was conferred on the 1st respondent; and
iv. Respondents have exercised acts of ownership so numerous and positive for over 20 years prior to the purported sale of the land to the appellant. Such acts include payment of ground rent to the Government of Benue State and also revalidation fees as evidenced in Exhibits 7A and 7B respectively.
See further the cases of Dabo vs. Abdullahi (2005) 7 NWLR Pt. 923, pg. 1 at 35-36, paras. G-B; Kyari vs. Alkali (2001) 5 SC, Pt. II, pg. 192; and Asheik vs. Bornu State Government (2012) 9 NWLR Pt. 1304, pg. 1. By the combined provisions of Sections 5, 13 and 14 of the Land Use Act, 1978 and given that the 1st respondent validly holds the statutory right of occupancy, she is a title holder with the exclusive rights to occupy and improve the land against all persons, except the Governor. See the authorities of Teniola vs. Olohunkun (1999) 4 SCNJ. 98, 102-104; Obasohan vs. Omorodion (2001) 13 NWLR Pt. 729, pg. 206; and Saude vs. Abdullahi (1989) 4 NWLR Pt. 116, pg. 387, 416, paras. D-E.
Premised on the foregoing, the lower Court was on the right path when it reached the following decision:
As for the counter-claim, I find that even though the 1st defendant (1st respondent) had some difficulty with identifying the land granted to her by the Benue State Government, that was resolved by the grant of title as Exhibit ‘5’…
The evidence of PW2 in regard to Exhibits 2, 3 and 4 support the case of the defendants. He confirmed the existence of plot BNA 4595 in Exhibit 2 and the fact that Exhibit 5 was issued to the 1st defendant by the Ministry of Lands and Survey despite some obvious remarks against same. Exhibit 5 was issued in 1991 and the Ministry of Lands and Survey has not revoked it. It is therefore subsisting. I find the counter-claim as established by the production of document of title which is one of the ways of proving title to land.
I dare to state that I have found nothing on record to warrant a disturbance or interference with the findings of the lower Court. This is to say that the trial Court was right in holding that the 1st respondent was granted valid title to the piece of land in dispute. Issue 4 (four) is in the light resolved in favour of the respondents and against the appellant.
Having resolved the 4 (four) issues in favour of the respondents and against the appellant, it follows that the appeal has been visited by its waterloo consequent upon which it is hereby dismissed. The effect is that the judgment of the High Court of Benue State, sitting in Makurdi, per Hon. Justice T. A. Igoche, J., delivered 6th August, 2018 in Suit No. MHC/330/2012 is thus affirmed.
Cost assessed and fixed at N100,000.00 is awarded in favour of the respondents and against the appellant.
MUSLIM SULE HASSAN, J.C.A.: My lord, CORDELIA IFEOMA JOMBO-OFO, JCA, obliged me with the draft of the leading judgment delivered. I agree with the reasoning and the conclusion that this appeal lacks merit and it is hereby dismissed. The judgment of the trial Court is HEREBY AFFIRMED.
I abide by the consequential orders made therein.
ABDUL-AZEEZ WAZIRI, J.C.A.: I agree with the judgment.
Appearances:
S. O. Adikwu, Esq. with him, S. I. Arogha, Esq. For Appellant(s)
Chief E. K. Ashiekaa, SAN, with him, P. N. Jooji, Esq. I. R. Adekwagh, Esq. J. O. Akaaunde, Esq. Bobby Tavershima, Esq. and J. S. Agber, Esq. For Respondent(s)