KUSHA v. MODU & ORS
(2022)LCN/16955(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/G/306/2019
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
BULAMA A.A.A. KUSHA (Suing For And On Behalf Of Kushari Islamiya School) APPELANT(S)
And
1. ALHAJI GANA MODU 2. MOHAMMED UMARA 3. KUSHARI AREA DEVELOPMENT ASSOCIATION RESPONDENT(S)
RATIO
WHETHER OR NOT DOCUMENTARY EVIDENCE IS USED TO TEST THE VERACITY OF ORAL EVIDENCE
The lower Court on its part, critically examined the documents of title, as well as other documents placed before the Court. This was a proper thing to do since the law is trite that documentary evidence serves as the hangar upon which to test the veracity of oral evidence. Thus, oral evidence that is supported by documentary evidence will be deemed more credible. This position of the law has been reiterated by the Supreme Court and this Court in innumerable decisions. For instance, in the case of Zakirai V Muhammad (2017) LPELR-42349(SC) 73, A-F, Augie, JSC restated the law with clarity when he said:
“It is an elementary principle that documentary evidence is used as a hangar to test the veracity of evidence, whether oral or by affidavit… This, documentary evidence is the hangar to base other pieces of evidence… The lower Court was right to place greater value on documentary evidence, which bears eloquent testimony to what happened – See Aiki V Idowu (2006) 9 NWLR (Pt. 984) 47, wherein it was observed –
“Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages. The documents bear eloquent testimony to what happened.”
In another case emanating from this Court in Yaro V Manu (2014) LPELR-24181(CA) 37-38, A, Sankey JCA held:
“The law is trite that wherever documents are available, they speak louder than oral evidence on the issues in contention, and are eminently preferred. The reason is not farfetched. It is invariably because documentary evidence is the hanger upon which to measure the veracity and/or authenticity of oral evidence. It stands as a yardstick for assessing oral evidence. Thus, where both documentary and oral evidence are given, documentary evidence should be used as a hanger from which to assess the oral testimony. Documentary evidence is, to be sure, the best proof of the contents of documents. Oral evidence will not be allowed to discredit or contradict the contacts thereof except where fraud is pleaded. Oral evidence is inadmissible to alter the contents of a document because the contents of a document are invariably the chords of man.”
Yet again, in Agbelegah V State (2015) LPELR-24793(CA) 24, A, per Ogbuinya JCA, this Court held:
“In law, documentary evidence is used as the yardstick to gauge the veracity of parol testimonies in cases of evidential impasse. By its documentary nature, it is superior to the oral evidence that ooze out from the vocal cord of man which is obedient to distortion by its maker/author.”
To put a seal on this principle of law, this Court per Ogakwu, JCA in Simeon V College of Education, Ekiadolor Benei (2014) LPELR-23320(CA) 33, B-E, held:
“The law is that documentary evidence is used as a hanger from which to assess oral testimony… This is so because while documentary evidence which is shown to be genuine does not lie, oral evidence may tell a lie. As the Chinese saying goes, the faintest ink is stronger than the best memory. The documentary evidence is therefore to be used as a base from which to assess the oral evidence.”
See also Eze V State (2018) LPELR-43715(SC) 13, A-C, per Rhodes-Vivour JSC, Oyewusi V Olagbami (2018) LPELR-44906(SC 39, B, per Kekere-Ekun JSC, Udo V State (2018) LPELR-43707(SC) 22, E-F, per Rhodes-Vivour JSC and Ogundepo V Olumesan (2011) LPELR-1297) 20-21, F-A, per Fabiyi, JSC.
Therefore, where documentary evidence is available, it is used to measure the veracity of the oral evidence placed before the Court, and so it is preferred. Oral evidence, like oral history, is subject to variations based on individual perceptions, distortions and inaccuracies which could be deliberate or inadvertent due perhaps, to the passage of time. Thus, where parol evidence may be coloured to suit the whims and caprices of the witness, documentary evidence remains sacrosanct and inviolate at all times. PER SANKEY, JC.A
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Borno State delivered in Suit No. BOHC/MG/CV/60 on 13th March, 2019, by M.M. Benisheikh, J.
The facts leading to the Appeal are succinctly captured as follows: The Appellant had taken out a Writ of Summons wherein he sued for himself and on behalf of Kushari Islamiya School against the Respondents. By his Amended Statement of Claim dated 20-03-16, he claimed as follows:
a. “A declaration that the Claimant has a right of title, possession and occupation of land measuring 8,652 square meter, lying and situate at Kusha village of MMC Local Government Area of Borno State covered by the Right of Occupancy No. BO/57605.
b. A declaration that the trespass by the Defendants on the said piece of land and adverse claim of title to same is illegal, wrongful, unconstitutional, null and void.
c. An order of perpetual injunction restraining the Defendants whether by themselves, agents, servants, privies or howsoever from further trespassing into, erecting structure(s) on, alienating in any way, dealing in any manner or tampering with the land or title of the land being the subject matter of the suit.
d. An order of award for general damages in the sum of N5, 000, 000 (Five Million Naira).
e. The cost of this suit.”
Upon being served with the claim of the Appellant, the 3rd Defendant counter-claimed as follows:
“5. WHEREOF the claimant claims as follows:
1) “A DECLARATION the 3rd claimant is the legal owner, interest and title holder over plot known as Kushari Islamiya School covered by letter of grant dated 8th of July, 2011 a declaration that the defendant is a trespasser.
2) AN ORDER of perpetual injunction restraining the defendant, his agents, privies, executors, heirs or by his personal representative or any person claiming through him from trespassing or claiming ownership of the land.”
In proof of his case, the Appellant called a total of six (6) witnesses and tendered a number of exhibits. The Defendants in their defence and in proof of the 3rd Defendant’s counter-claim called three (3) witnesses. At the close of hearing, Counsel for each set of parties addressed the Court on the issues of facts and law arising. Thereafter, on 13-03-19 the lower Court entered judgment for the 3rd Defendant/counter-claimant on its counter-claim and dismissed the claim of the Appellant.
Peeved by the outcome of the case, the Appellant filed an Appeal on 20-03-19 vide his Notice of Appeal, wherein he complained on four (4) grounds. Therein, he seeks the following reliefs from this Court:
1. “Allow the Appeal.
2. Set aside the decision of the lower Court.
3. In its place, enter judgment for the Appellant in all his claims while dismissing the 3rd Respondents’ counter-claim.”
At the hearing of the appeal on 01-03-22, whereas the Appellant was in Court and was represented by his Counsel, N.A. Dammo, Esq., the Respondents were neither in Court nor were they represented by Counsel. The Court having satisfied itself that there was proper service on all three (3) Respondents with a hearing Notice, as well as the Appellant’s Brief of argument, granted the Appellant’s application for the appeal to be heard on the Appellant’s Brief of argument alone pursuant to Order 19 Rule 10(3) of the Court of Appeal Rules, 2021. the Respondents having failed to file a brief of argument and the time for so doing having long since lapsed.
Learned Counsel for the Appellant, N.A. Dammo Esq., therefore adopted the submissions in the Appellant’s brief of argument filed on 19-01-21 settled by him in urging the Court to allow the appeal, set aside the decision of the lower Court, grant the Appellant’s claim at the lower Court, and dismiss the 3rd Respondent’s counter-claim.
The Appellant in his brief of argument distilled one lone issue for determination from the four Grounds of Appeal as follows:
“Whether the lower Court was not wrong in dismissing the Appellant’s claim and entering judgment for the Respondents in its counter-claim holding the 3rd Respondent the owner of the land in dispute.”
The appeal will be determined from the lens of this sole issue.
ARGUMENTS
In arguing this issue, learned Counsel for the Appellants submits that both the Appellant and the Respondents claim title to the land covered by the Right of Occupancy No. BO/57605. That being so, both parties were obliged to place credible evidence before the lower Court in proof of their respective claims to title.
Counsel relied on a host of decisions on the five (5) acceptable ways to prove title to land, including Orlu V Onyeka (2018) 2 NWLR (Pt. 1607) 467, 487, Oyewusi V Olagbami (2018) 14 NWLR (Pt. 1639) 297, 317-318. He submits that one of the five ways to prove title to land is the production of documents of title duly authenticated. Thus, in order to prove his claim, the Appellant placed the following documents of title before the lower Court: Exhibit P1 – the Right of Occupancy issued to the Appellant in the name of his School, Kushari Islamic School; Exhibit P2 – the Application for registration of the school submitted by the Appellant; and Exhibit P3 – the Certificate of Registration of the school with the Appellant as the proprietor of the school.
Counsel submits that Exhibits P1-P3 showed the Appellant as being the proprietor of Kushari Islamiya School to which the Right of Occupancy had been issued. He therefore contends that the Appellant’s title was prima facie established. He contends also that the documents were genuine and valid, issued by a grantor who had the capacity to issue it and make the grant, to wit: the Borno State Government. Counsel submits that the exhibits tendered established the title of the Appellant to the land. Therefore, that the lower Court was in grave error and occasioned a miscarriage of justice when it held that the Appellant did not establish his title to the land in dispute.
On the finding of the lower Court wherein it relied on evidence elicited under cross-examination, Counsel submits that a document is the best evidence, and no parol evidence will be allowed to add to or alter the contents of a document. Reliance is placed on Kassim V State (2018) 4 NWLR (Pt. 1608) 20, 44 & Arjie V Arjie (2018) 16 NWLR (Pt. 1644) 67, 89, among others. Counsel therefore submits that in the light of Exhibits P1, P2 and P3, the learned trial Judge was in grave error when he came to an erroneous finding based on oral evidence. In addition, the finding of the trial Judge in this regard is not based on the pleadings and evidence on record. Counsel therefore submits that based on Exhibits P1, P2 and P3, the Appellant is the sole owner of Kushari Islamiya School.
Counsel further submits that the land in dispute was allocated to Kushari Islamic School whose owner and proprietor is the Appellant. That contrary to the finding of the lower Court, Kushari Islamiya School is not the same entity as Suleimanti Islamiya. No such evidence was adduced before the lower Court. Instead, the Respondents’ case was that the land in dispute is owned by the 3rd Respondent on which it had its school, Suleimanti Kushari Islamiya School. In proof of this contention, they tendered Exhibits D1, D2 and D3 wherein Suleimanti Kushari Islamiya School is referred to, as opposed to Kushari Islamiya School.
Counsel submits that where two parties are laying claim to the same piece of land, the one with a better title or who can prove a better title is ascribed title to the land. He also submits that a party claiming title must succeed on the strength of his case. He relies on Ashiru V Olukoya (2006) 11 NWLR (Pt. 990) 1, 23-24, Gege V Nande (2006) 10 NWLR (Pt. 988) 256, 284, 285, Adamawa State Ministry of Land & Survey V Salisu (2021) 2 NWLR (Pt. 1759) 1, 27 and Obanigba V Abibu (2021) 3 NWLR (Pt. 1760) 84, 107.
Counsel submits that the documents of title produced by the Respondents, D1, D2 and D3, do not meet with the requirement of the law. He relies on Maneke V Maneke (2020) 13 NWLR (Pt. 1741) 311, 328. He argues that Exhibits D1, D2 and D3 did not meet the requirements of the law that documents of title produced and relied upon in a claim for declaration of title to land, must be genuine, valid, duly executed, stamped and registered. They must also be granted by a grantor who has the authority and capacity to make the grant, the grantor has what he proposes to grant and the grant has the effect of passing or granting title to the party claiming. They are therefore not documents of title capable of conferring title on the 3rd Respondent as to entitle it to Judgment entered in its favour.
Counsel finally urged the Court to resolve the sole issue in favour of the Appellant. He also urged the Court to allow the appeal, set aside the decision of the lower Court and in its place, enter judgment for the Appellant as per his claim, and dismiss the Respondents’ counter-claim.
RESOLUTION OF SOLE ISSUE:
Learned Counsel for the Appellant has rightly stated the law in respect of a claim for declaration of title to land. Certainly, proof by documents of title is one of the five (5) ways recognized by law for proving title to land.
In the instant case, the Appellant as Claimant at the lower Court, produced documents of title, Exhibits P1, P2 and P3 to prove his claim over the property referred to as Kushari Islamiya School. While these documents were not impugned by the Respondents, their defence is that the documents of title were issued to the Appellant in his capacity as a representative of the community members who owned the land on which the school was built, as well as the school. Upon examining the evidence and the entire documents placed before the lower Court, the learned trial Judge held that the documents of title were all issued, not in the name of the Appellant, but in the name of the property in dispute, Kushari Islamiya School.
From the pleadings of the parties, issues were clearly joined as to the ownership of the said school, which the Appellant refers to as Kushari Islamiya School, while the Respondents refer to it as Sulemanti Kushari Islamiya School. Notwithstanding the difference in nomenclature, there is no dispute that both parties are not in doubt about the identity of the property which each is contesting in the suit.
The contestation between the parties is that, whereas the Appellant claims the school as his personal property, the Respondents claim that the school belongs to the community and the Appellant is the Bulama of Kushari, a community leader. They contend that all the actions taken by the Appellant in applying for the Right of Occupancy and the registration of the school (Exhibits P1 and P2), were carried out on behalf of the community which owns the school, and not because the school belonged to him personally. The witnesses called by both parties gave evidence in favour of the respective parties which summoned them.
The lower Court on its part, critically examined the documents of title, as well as other documents placed before the Court. This was a proper thing to do since the law is trite that documentary evidence serves as the hangar upon which to test the veracity of oral evidence. Thus, oral evidence that is supported by documentary evidence will be deemed more credible. This position of the law has been reiterated by the Supreme Court and this Court in innumerable decisions. For instance, in the case of Zakirai V Muhammad (2017) LPELR-42349(SC) 73, A-F, Augie, JSC restated the law with clarity when he said:
“It is an elementary principle that documentary evidence is used as a hangar to test the veracity of evidence, whether oral or by affidavit… This, documentary evidence is the hangar to base other pieces of evidence… The lower Court was right to place greater value on documentary evidence, which bears eloquent testimony to what happened – See Aiki V Idowu (2006) 9 NWLR (Pt. 984) 47, wherein it was observed –
“Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages. The documents bear eloquent testimony to what happened.”
In another case emanating from this Court in Yaro V Manu (2014) LPELR-24181(CA) 37-38, A, Sankey JCA held:
“The law is trite that wherever documents are available, they speak louder than oral evidence on the issues in contention, and are eminently preferred. The reason is not farfetched. It is invariably because documentary evidence is the hanger upon which to measure the veracity and/or authenticity of oral evidence. It stands as a yardstick for assessing oral evidence. Thus, where both documentary and oral evidence are given, documentary evidence should be used as a hanger from which to assess the oral testimony. Documentary evidence is, to be sure, the best proof of the contents of documents. Oral evidence will not be allowed to discredit or contradict the contacts thereof except where fraud is pleaded. Oral evidence is inadmissible to alter the contents of a document because the contents of a document are invariably the chords of man.”
Yet again, in Agbelegah V State (2015) LPELR-24793(CA) 24, A, per Ogbuinya JCA, this Court held:
“In law, documentary evidence is used as the yardstick to gauge the veracity of parol testimonies in cases of evidential impasse. By its documentary nature, it is superior to the oral evidence that ooze out from the vocal cord of man which is obedient to distortion by its maker/author.”
To put a seal on this principle of law, this Court per Ogakwu, JCA in Simeon V College of Education, Ekiadolor Benei (2014) LPELR-23320(CA) 33, B-E, held:
“The law is that documentary evidence is used as a hanger from which to assess oral testimony… This is so because while documentary evidence which is shown to be genuine does not lie, oral evidence may tell a lie. As the Chinese saying goes, the faintest ink is stronger than the best memory. The documentary evidence is therefore to be used as a base from which to assess the oral evidence.”
See also Eze V State (2018) LPELR-43715(SC) 13, A-C, per Rhodes-Vivour JSC, Oyewusi V Olagbami (2018) LPELR-44906(SC 39, B, per Kekere-Ekun JSC, Udo V State (2018) LPELR-43707(SC) 22, E-F, per Rhodes-Vivour JSC and Ogundepo V Olumesan (2011) LPELR-1297) 20-21, F-A, per Fabiyi, JSC.
Therefore, where documentary evidence is available, it is used to measure the veracity of the oral evidence placed before the Court, and so it is preferred. Oral evidence, like oral history, is subject to variations based on individual perceptions, distortions and inaccuracies which could be deliberate or inadvertent due perhaps, to the passage of time. Thus, where parol evidence may be coloured to suit the whims and caprices of the witness, documentary evidence remains sacrosanct and inviolate at all times.
An examination of Exhibit P1 produced by the Appellant discloses that it is a Grant of a Right of Occupancy issued on 08-07-11 to “Kushari Islamiya School, c/o Bulama Bukar Mafoni”. The Appellant, as PW1, agreed that “Bulama Bukar Mafoni” is one of the names he uses. From the face of the document, it speaks clearly that the Right of Occupancy was not granted to the Appellant personally but to Kushari Islamiya School.
Again, in respect of Exhibit P2, it is a letter written on the letter-head of Kushari Islamiya School dated 29-12-14 and signed by the Appellant using another of his monikers: “Bulama Alh. Abubakar”, as “Director” of Kushari Islamiya School. Again, the ordinary interpretation of this document is that the Appellant was acting on behalf of Kushari Islamiya School as its Director, and not as its proprietor.
Finally, Exhibit P3 is a Certificate of registration issued to “Alh. Bulama Abubakar” as Proprietor of Kushari Islamiya School. It is only in this document that the Appellant is described therein as the proprietor of Kushari Islamiya School, as claimed in the case leading to this appeal. It was obviously not lost on the learned trial Judge that this certificate was issued upon the application of the Appellant, and so the information therein is based on the information supplied by him to the Ministry of Education. No wonder his subsequent holding that Exhibit P1 is the root of Exhibits P2 and P3.
On the part of the Defendants, they equally tendered three documents, Exhibits D1, D2 and D3. Exhibits D2 is a receipt of payment issued to Sulemanti Kushari Islamiya School by the Government of Borno State dated 12-07-05 in the sum of N2,000.00, being payment for application processing fees. Exhibits D1and D3 are letters written as far back as 2005 and 2006, (long before the issuance of the Right of Occupancy to Kushari Islamiya School in 2011, Exhibit P1) where the leaders of the community signed against their names. It is significant and noteworthy that the name of the Appellant is prominently listed in the two letters as “Bulama Bukar” and duly signed by him. This clearly substantiated the Respondents’ defence and the 3rd Respondent’s counter-claim that the property in contention, i.e., Kushari Islamiya School otherwise known as Sulemanti Kushari Islamiya School, belongs not to the Appellant personally, but to Sulemanti Kushari Maisandari Ward community where the Appellant is recognized as a community leader, being the Bulama of Kushari. Since the contents of these documents are key to the findings of the lower Court, they are set out hereunder for ease of reference:
Exhibit D1 is a letter from the Committee of the Islamiya School duly signed by the Chairman, Vice Chairman, Secretary, Vice Secretary, Advisers and Members, to the Permanent Secretary of Ministry of Land & Survey, Maiduguri dated 08-07-05. It states:
“Sir,
The permanent Secretary Ministry of Land we the entire people of Sulemati Kushari Maisandari Ward we were given this land as a grave yard. But know (sic) we decided to make it to become Islamiya Primary School and Secondary School. For the people of Sulemanti Kushari Ward.
THE CHAIRMAN/VICE CHAIRMAN
…
SECRETARY/VICE SECRETARY
…
ADVISER
1) Hon. Alahaji Ali Bulama Yajiwa – Signed
2) Bulama Bukar – Signed
3) Bulama Suleiman – Signed
4) Bulama Ali – Signed
5) Bulama Maina – Signed
MEMBERS
1) Alhaji Gabdo – Signed
…
Signature … Signature…
Chairman Secretary”
(Emphasis supplied)
Exhibit D3 is a letter from Suleman Kushari Islamiya School again signed by the same principal officers of the Committee and members dated 16-08-06 addressed to the Director of Planning, Ministry of Land & Survey, Borno State, Maiduguri. Its contents are as follows:
Suleman Kushari Islamiya,
Maisandari Ward,
Maiduguri.
Date 16/8/2006
“Dear Sir,
NOTIFICATION LETTER
With much respect and honour, we like to inform you about sales of part of Islamiya address above, we did these sales with the committee members knowledge to enable us to complete the classroom building here are the members name and their signatures below:-
1. CHAIRMAN AND VICE CHAIRMAN
…
2. SECRETARY AND VICE SECRETARY
…
3. ADVISER
Hon. Alhaji Bulama – Signed
Bulama Bukar – Signed
Bulama Suleman – Signed
Bulama Maina – Signed
4. MEMBERS
…
Yours faithfully,
Signature… Signature…
Chairman Secretary”
(Emphasis supplied)
By these letters, the evidence of the Respondents through its witnesses contending that Kushari Islamiya School is owned by the Sulemanti Kushari Maisandari community, is established. The contents go further to confirm the evidence of the Appellant and his witnesses that the land upon which the school was built was first given to the community to serve as a graveyard, but due to its hardy nature, it was converted for use as an Islamiya School for the community. Even though the Appellant in his testimony, which was supported by those of some of his witnesses, contend that the initiative to transform the graveyard into a school was from him (Appellant), Exhibit D2, puts the lie to this evidence, and being documentary evidence, it is preferred.
In addition, both sets of witnesses gave evidence that in 2014, the Borno State Government built and commissioned classrooms on the land for the community, while the two dilapidated classrooms built by community effort were pulled down. Even the Appellant agrees to this, except that he contends that he personally put up the dilapidated classrooms. It is however evident from Exhibits D1 and D3, which he duly signed as one of the advisers of the Committee of the Islamiya School, along with other Bulamas, that at all times, the Appellant acted as a representative of the Kushari Islamiya School. Thus, Exhibits P1 and P2, the Right of Occupancy and Application to formalize the registration of Kushari Islamiya School, were carried out by the Appellant in his capacity as a representative of the Islamiya school and as a community leader. Having acted in these capacities, the Appellant subsequently sought to evolve as the sole owner of the school. His claim is not however borne out by the evidence placed before the lower Court.
After scrutinizing and evaluating the evidence, the learned trial Judge made some crucial findings. At page 136 of the printed record, he held – “Going by the cross-examination which the claimant admitted those facts, and perusing through Exh. P1, it could not be said in my view that he is the sole proprietor of the Islamiya, but a community leader through whom the documents were issued (and kept in trust if I may add). This could be seen in paragraph 14 of the statement of claim where he said that in 2010, he applied for letter of grant in the name of Kushari Islamiya school, I hold it clearly indicates that the grant is to Kushari Islamiya school, and that is why it reads “To Kushari Islamiya school C/O Bulama Bukar Mafoni Liberty, Maiduguri.”
On the submission of Counsel for the Claimant (now Appellant) that the documents tendered by the Respondents were not documents of title, as opposed to those tendered by the Appellant, the learned trial Judge also held at pages 137 & 138 of the record as follows –
“Contrary to the submission of the learned counsel, examining Exhibit P1, the beneficiary as written thereon is “Kushari Islamiya School”, Exhibit P2 reads receipt for payment for application processing fees also bears the same Kushari Islamiya School, Exhibit D1 bears Sulemanti Kushari Islamiya, Exhibit D2, Notification letter dated 16/8/2006, Exhibit D3 Letter dated 8th July 2005, under the list of Advisers, the name Bulama Bukar appears on both.” (Emphasis supplied)
On the contention of Counsel for the Appellant that the signatures on these documents do not belong to him, the learned trial Judge, who saw and heard the witnesses firsthand, held at page 137-138 that –
“Also, on closer observation the signature thereon looks alike/same. So also the signature of the Appellant on Exh. P1. It is on record that when PW1, the claimant, testified on 18th October, 2018, he said his (sic) is Bulama Abubakar Abdurrahman Kusha, he is also called Bulama Bukar as well as Bulama Bukar Mafoni. Not only that the same signature as observed above appears on the deposition of witness on oath of the claimant attached to the original Writ of Summons dated 22 Sept. 2015. Therefore, I hold that all the initials or signatures as described above belongs to the claimant, and it rebuts the contention that the signature is not his.”
All the above reproduced findings of fact by the trial Court are incontrovertible. I find no reason to disturb them as they are sound findings of fact based on a proper assessment of the evidence laid before the lower Court.
In respect of the submission of learned Counsel for the Appellant that whereas the documents tendered by the Appellant were documents of title, those tendered by the Defendants/Counter-claimant were not, the law is indeed trite that a party claiming a declaration of title must succeed on the strength of his case and not rely on the weakness of the defence, I completely agree. That is the law – Elewa V Guffanti (Nig) Plc (2017) 2 NWLR (Pt. 1549) 233, 247.
However, in the instant case, the strength of the Appellant’s claim was Exhibits P1-P3 which he relied on as his documents of title. However, the documents speak out eloquently and loudly that this assertion is not true because the documents are not in the Appellant’s name, but in the name of Kushari Islamiya School. Other cogent and credible pieces of evidence, Exhibits D1 and D3, confirm that the Appellant only received the documents of title and dealt with them as a representative of the Committee of the Islamiya School which own the school. No other spin can be placed on these documents as that would amount to a distortion of its contents.
Therefore, if the documents of title, Exhibits P1-P3, were tendered by the Appellant in proof of his claim that Kushari Islamiya School belong to him, then it failed completely. Instead, it further buttressed the case of the Respondents that Kushari Islamiya School otherwise referred to as Sulemanti Kushari Islamiya, belongs to the community represented by the Committee of the Islamiya School as reflected in Exhibits D2 and D3, duly signed by its representatives, which include the Appellant herein, a.k.a. Bulama Bukar, whose name and signature appears under the list of Advisers. It is no wonder that the learned trial Judge held as follows at page 139 of the record:
“Going by the evidence before the Court, the exhibits tendered and the submissions of counsel on both sides, and for the reasons I gave above, especially as regards Exhibit P1 which I regard as the root of the other exhibits, and as submitted by learned counsel to the defence, I agree that the evidence led by the claimant supports/strengthens the case of the defence. For the reasons aforesaid, I hereby resolve the issue for determination against the claimant, that is to say the claimant is not entitled to the reliefs he is claiming.”
These findings of fact by the trial Court and the conclusion drawn therefrom are unassailable. They are supported by both oral and documentary evidence laid before it. The trial Court was right when it assessed and tested the veracity of the oral evidence adduced by both parties with the documentary evidence, the latter which spoke eloquently in favour of the case of the Defendants and Counter-claimant. Certainly, documentary evidence is a rigid and permanent yardstick against which oral evidence is assessed and tested to determine its veracity or otherwise. It hardly fails except where fraud is alleged in its procurement and proved, which is not the case in the instant Appeal –Fashanu V Adekoya (1974) 1 All NLR (Pt. 1) 35. B.
Therefore, it is for all the aforementioned reasons that I resolve both issues against the Appellant, notwithstanding that the Respondents did not file a brief of argument in response to the Appeal. The onus was still on the Appellant to establish that the Judgment of the trial Court was wrong and should be set aside. He has failed. Where there is a subsisting judgment of a competent Court of law, which is presumed right unless and until it is shown to be otherwise, there is no room for a “walk-over”.
Consequent upon this, I find the appeal lacking in merit. It fails and is dismissed.
Accordingly, the judgment of the High Court of Borno State in Suit No. BOHC/MG/CV/60/2015 delivered on 13th March, 2019 by M.M. Benisheikh J., is affirmed.
IBRAHIM SHATA BDLIYA, J.C.A.: I read in draft the judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.
I agree entirely with the views expressed therein and the conclusions arrived at that the appeal is devoid of any merit. For the comprehensive reasons in the lead judgment, I too dismiss this appeal for lacking in merit. I affirm the judgment of the lower Court delivered on the 22nd of December, 2010 in suit no. BOHC/MG/CV/60 of 13th March, 2019, by M. M. Beneishekh J.
EBIOWEI TOBI, J.C.A.: I am afforded the privilege of reading in draft the lead judgment just delivered by my learned brother, J. H. Sankey, JCA. I agree with reasoning and conclusion reached therein. In dismissing the appeal and affirming the judgment of the lower Court, I adopt the lead judgment as mine as I have nothing useful to add.
Appearances:
N.A. Dammo, Esq. For Appellant(s)
…For Respondent(s)
