MAIWADA & ANOR v. KWASAU (2020)

MAIWADA & ANOR v. KWASAU

(2020)LCN/14430(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/K/312/2015

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

1. SAMAILA MAIWADA 2. SANUSI MAIWADA APPELANT(S)

And

MOHAMMED SHEHU KWASAU (Suing For Himself And On Behalf Of The Family Of Late Shehu Kwasau) RESPONDENT(S)

RATIO

WHETHER OR NOT THE EFFECT OF LIMITATION LAW IS TO LEAVE THE PLAINTIFF WITH A CAUSE OF ACTION THAT CAN NOT BE ENFORCED

It is undoubtedly the law, as submitted by the learned Counsel to the Appellants, that the effect of a Limitation Law is to leave the Plaintiff with a cause of action which cannot be enforced. See Buremoh v Akande (2017) 7 NWLR Part 1563 Page 74 at 105 Para A-B per Aka’ahs JSC; Okafor v. Bende Divisional Union, Jos Branch (2017) 5 NWLR Part 1559 Page 385 at 422 Para B-C per Kekere-Ekun JSC; Mulima v Usman (2014) 16 NWLR Part 1432 Page 160 at 207 Para A-B per Rhodes-Vivour JSC.
A cause of action denotes every fact (though not every piece of evidence) which it would be necessary for the Plaintiffs to prove, if traversed, to support his right to the judgment of the Court. A cause of action is a factual situation which if substantiated entitles the Plaintiff to a remedy against the Defendant. See Esuwoye v Bosere (2017) 1 NWLR Part 1546 Page 256 at 297-298 Para D-D per Onnoghen JSC (as he then was); Labode v. Otubu (2001) 7 NWLR Part 712 Page 256 at 280 Para D-F per Onu JSC. PER ADEFOPE-OKOJIE, J.C.A.

WHETHER OR NOT IT IS THE PRIMARY FUNCTION OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES

The assessment and credibility of witnesses is the primary function of the trial Court which had the singular opportunity of seeing and observing the witnesses, I hold. In the absence of strong reasons, an appeal Court will be slow to interfere with such findings. See All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F; (2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC. PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court sitting in Zaria, delivered on the 31st day March, 2014 by Hon. Justice M.L. Mohammed.

The subject matter of this appeal is a residential house at No. 9 Fagaci Road, Gyallesu, Zaria. The case of the Respondents, who were the Plaintiffs at the lower Court, is that their father died when all his children were underaged. They received a letter sometime in 1998 addressed to their father by United Bank for Africa Plc (UBA) Zaria Branch demanding for payment of overdraft facilities granted to him. Their family, by agreement, decided to settle the indebtedness and on discovering even more letters addressed to their father from the Bank approached the Bank to discover that their father had deposited a certificate of occupancy over the land in dispute as collateral for the facility. A search was also made at the Lands Registry where they confirmed the title to the land to be in their father’s name. They thus challenged the Appellants’ presence in the house, demanding payment of rents by them, eventually

culminating in the suit in the lower Court. They denied that their (Respondent’s) father was present at the sharing of the property in dispute to the Appellants, on the death of the Appellant’s father.
They claimed the following reliefs before the lower Court:
“(1) A declaration that the house in dispute belong to the plaintiff.
(2) Rent arrears for the use and occupation of the property.
(3) General damages of N2,000,000.00 (Two Million Naira Only) for the mental and psychological trauma caused the plaintiff and his co-heirs.
(4) Professional fees of plaintiff counsel N80,000.00.
(5) Cost of this suit.”

The case of the Appellants is that both parents were best of friends during their lifetime. The house in dispute originally belonged to the father of the Respondents who sold the property to their father and who took possession. Their father had been exercising acts of possession during the lifetime of the Respondent’s father who died in 1987. Their (Appellants’ father) died in 1978. Tenants had been occupying the house. On occasion, those taking over the property on their behalf had

instituted actions against tenants. Following the death of their father, his property was shared in accordance with Islamic rights by the Judge of the Upper Area Court Zaria. The house in dispute was inherited by them. They thus counter claimed as follows:
1. “An order confirming the Defendants as the owner of the house in dispute No. 9 Fagaci Road, Gyellesu, Zaria.
2. An order dismissing the claim of the plaintiff for lack of merit and being vexatious and frivolous.
3. A perpetual injunction restraining the plaintiff, his heirs, relations, privies, agents etc from disturbing the Defendants ownership and possession of the house NO. 9 Fagaci Road, Gyellesu, Zaria.
4. Damages of N100,000 being cost of the Defence of this suit i.e. counsel fees and typing filling and service fees for processes.
5. N200.000 general damages in favour of the Defendants and against the plaintiff.”

At the trial five witnesses testified for the Respondent while three witnesses testified for the Appellants. Upon conclusion of trial and the filing of written addresses, the lower Court granted the declaration sought and also damages or

N200,000.00. It however refused the claim for arrears of rent. It dismissed the Counter Claim of the Appellants.
Aggrieved, the Appellants filed a Notice of Appeal on 17/4/2014.

In the Appellants’ Brief of Arguments filed on 25/6/2018 and deemed properly filed on the same date, settled by Yemi S. Adekunle Esq of Yemi Adekunle & Co, three (3) issues for determination were formulated, as follows:
1. Whether the claim of the Respondent (Plaintiff) was not statute barred regard being had to the Limitation of Action Laws of Kaduna State 1990 thus robbing the trial Court of jurisdiction.
2. Whether the non-joinder of Habibu Maiwada who was jointly awarded the property No. 9 Fagachi Road Gyallesu, Zaria by Exhibit D2 and D2A did not affect the jurisdiction of the trial Court particularly that by the judgment of the trial Court, the proprietary interest of that party who ought to be joined but was not joined was affected by the final outcome of the case.
3. Whether having regard to the evidence led before the trial Court, the Appellant did not prove a better title to the dispute property No. 9 Fagachi Road, Gyallesu Zaria than the

Respondent such that the Appellant should have been entitled to judgment.

The Respondent’s Counsel, A.Y. Musa Esq of A.Y. Musa & Co., in the Respondents’ Brief of Arguments adopted the issues formulated by the Appellants. In response, the Appellants’ Counsel filed an Appellants’ Reply Brief of Arguments on 16/4/19.

I shall accordingly adopt the issues formulated by the Appellants, save the 2nd issue, which is a fresh issue and for which leave of this Court was not sought to argue. This issue is whether the non-joinder of Habibu Maiwada who was jointly awarded the property in dispute by Exhibit D2 and D2A (the document sharing their father’s property to them by the Upper Area Court) did not affect the jurisdiction of the trial Court and the final outcome of the case.

The Appellants’ Counsel has argued that by these exhibits, it became obvious that the 2nd Appellant, who was the 2nd Defendant before the trial Court, had nothing to do with the cause of action but it was one Habibu Maiwada and not Sanusi Maiwada that got the property at No. 9 Fagachi Road, Gyallesu, Zaria. There is thus a case of non-joinder of

a proper party, viz Habibu Maiwada. Even though I agree with the response of the Respondent’s Counsel that the doctrine of “standing by” and “estoppel” caught up with Habibu Maiwada, as, aware of the proceedings, stood by without seeking to join in either of the Courts and had admitted in their pleadings that they were joint heirs of the property, the fact remains that the question of mis joinder or non- joinder was not raised as an issue before the lower Court.
It is thus a fresh issue, and without the leave of this Court first had and obtained, cannot be entertained. See Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC; Isiaka v Amosun (2016) 9 NWLR Part 1518 Page 417 at 435 Para E-F per Aka’ahs JSC; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC.

The two issues raised before the lower Court were the following:
1. “Whether this suit is not caught up with laches, acquiescence and Limitation of Action Laws of Kaduna State.
2. Whether the Defendants are not entitled to their counter claims as against the Plaintiff.”

The 2nd issue formulated by the Appellants’ Counsel, being a fresh issue is incompetent and is accordingly struck out.
The issues that thus arise for determination are the following:
1. Whether the claim of the Respondent was not statute barred regard being had to the Limitation of Action Laws of Kaduna State 1990 thus robbing the trial Court of jurisdiction.
2. Whether having regard to the evidence led before the trial Court, the Appellant did not prove a better title to the dispute property No. 9 Fagachi Road, Gyallesu Zaria than the Respondent such that the Appellant should have been entitled to judgment.
The first issue that thus arises for determination is the following:
Whether the claim of the Respondent was not statute barred regard being had to the Limitation of Action Laws of Kaduna State 1990 thus robbing the trial Court of jurisdiction

SUBMISSIONS
APPELLANT
Learned Counsel to the Appellant has submitted that the learned trial Judge had no jurisdiction to try the case at the time he did, as the claim of the Respondent was caught up with the Statute of Limitation, laches

and acquiescence. He cited Section 4 of the Limitation of Action Laws of Kaduna State, arguing that the right of action first accrued to the father of the Respondent before this death, when in this lifetime, the father of the Appellants took possession of the property and put tenants in it without any form of challenge. The right continued even after the death of the father of the Appellants when his children continued to maintain possession of the property. Counsel pointed out that the younger brother of the father of the Appellants even took some tenants to the Rent Tribunal and successfully recovered the premises without any challenge from the Respondent, referring to Exhibit D1, the proceedings of the Rent Tribunal.

Counsel further submitted that the father of the Respondent who ought to have challenged them was the same person who led the wife of his late friend (father of the Appellants) to the Court where Exhibits D2 and D2A were issued, the document of sharing the properties of Appellants’ father). He wondered how a person who ought to be an owner by right will be instrumental to the sharing of the same property to others and would not have

led the wife of the Appellants’ father to the Upper Area Court if the property still belonged to him at that time.

He further submitted that Alh. Shehu Kwasau, the father of the Respondent died in 1987, according to the evidence of PW1, while the father of the Appellants died in 1979. He queried, if the Appellants’ father had been in possession with tenants let in the property by him before his death, by ordinary calculation the Respondent’s father had left the property to the Appellants’ family for over 10 years. By Section 4 of the Limitation of Action Laws of Kaduna State Cap 89, 1990 the period between 1987 when the Respondent’s father died, to 2005 when this case was filed, amounts to 18 years. He submitted that by the evidence before the Court, however, the property had been in their possession for 25 years before the case was filed.

Counsel further submitted that the cause of action arose the year that the Appellants’ father entered onto the property i.e. before 1987 and it continued up to 10 years later under both Common Law and Limitation of Action Laws of Kaduna State. He cited the case of

IBAFON CO. LTD VS. NIGERIAN PORTS PLC (2000) 8 NWLR Part 667 Page 86 at 100, submitting that the effect of a Limitation Law on a cause of action is that it renders such action void and unenforceable, with the result that the jurisdiction of the Court cannot be invoked nor exercised, the remedy being to dismiss such action. He cited in addition the cases of JALLCO LTD VS. OWONIBOYS TECHN SERVICES LTD (1995) 4 NWLR Part 391 Page 534; AKINNUOYE VS. MILITARY ADMINISTRATOR, ONOD STATE (1997) NWLR Part 483 Page 564 at 567.

RESPONDENT
In response, the Respondent submitted, referring to the evidence before the Court, that the subject matter, following the legal mortgage in 1977, has been in the possession of the UBA Plc until the same was redeemed upon payment of the final indebtedness by the Respondent’s family in the year 1999, sequel to which the C of O over the subject matter was released to them in March year 2000. Subsequently a Deed of Release of the mortgage was executed in 2005. With the release of these documents, the Respondents regained possession of their late father’s house, thus becoming clothed with the power to challenge any intruder therein.

The dates on the receipts of payment, Exhibit 3 and 3A in 1999, clearly depicts when the indebtedness was settled by the Respondents, sequel to which Exhibits 1 and later 4 (C of O and Deed of Release) were given to the Respondents.

Counsel further submitted that having mortgaged the house during his life time and surrendered the C of O over the land in dispute as security, the possession of the house ceased to the with the Respondent’s father but the Bank. The purported purchase by the Appellants’ father cannot therefore have any legal basis under the principle of nemo dat quod non habet as the Respondent’s father had no house then to sell.

It was again submitted by learned Respondent’s Counsel that in a land matter, it is incumbent on the Appellant to prove that the person through whom he claimed really had right over the subject matter, unlike the Respondents who traced their title to Exhibit 1, the Certificate of Occupancy granted by the authority which had the power to so grant. He impugned the purported sale by their father to the Appellants’ father, wondering how property that was used as security can be purchased

without the consent of the Governor. He cited Section 22 and 26 of Land Use Act and case of SAVANNAH BANK & ANOR. VS. AJILO & ANOR 3 ACLC @ PAGE 208.

In the Reply Brief of Arguments, the Appellants’ Counsel submitted that the law is that when a legal mortgage is created, the possession is retained by the owner of the property, citing the case of Wema Bank Plc v Abiodun (2006) 9 NWLR Part 984 Page 1. He denied that the Appellants’ father could have purchased the mortgaged property from UBA Plc as the right/power of sale had not accrued then.

Decision
The simple issue for determination seems to have been obfuscated by the later submissions of Counsel and is simply, whether the claim of the Respondent was not statute barred, thus robbing the trial Court of jurisdiction.
Section 4 of the Limitation Law of Kaduna State, Cap 89, is as follows:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him, or if it first accrued to some persons through whom he claims, to that person.”
It is undoubtedly the law, as

submitted by the learned Counsel to the Appellants, that the effect of a Limitation Law is to leave the Plaintiff with a cause of action which cannot be enforced. See Buremoh v Akande (2017) 7 NWLR Part 1563 Page 74 at 105 Para A-B per Aka’ahs JSC; Okafor v. Bende Divisional Union, Jos Branch (2017) 5 NWLR Part 1559 Page 385 at 422 Para B-C per Kekere-Ekun JSC; Mulima v Usman (2014) 16 NWLR Part 1432 Page 160 at 207 Para A-B per Rhodes-Vivour JSC.
A cause of action denotes every fact (though not every piece of evidence) which it would be necessary for the Plaintiffs to prove, if traversed, to support his right to the judgment of the Court. A cause of action is a factual situation which if substantiated entitles the Plaintiff to a remedy against the Defendant. See Esuwoye v Bosere (2017) 1 NWLR Part 1546 Page 256 at 297-298 Para D-D per Onnoghen JSC (as he then was); Labode v. Otubu (2001) 7 NWLR Part 712 Page 256 at 280 Para D-F per Onu JSC.
In determining when the cause of action arose in this case, the lower Court held thus, at Page 183 of the Record:
“This Court has examined the Plaintiff’s Writ of Summons and Statement of

Claim dated 26/7/2005 in which the Plaintiff among other things is seeking for a declaration of title after execution of a deed of release in respect of the disputed property mortgaged to UBA Plc by the Plaintiff’s father who owned and acquired a C of O in respect of same.
The Defendants on the other hand are also claiming title to the property in dispute which the Defendants’ father said he bought from late Alh. S. Kwasau without any proof of sale transaction, coupled with the evidence of PW5 who said Alh. Maiwada (Defendants’ father) was put in the property as a non-paying tenant by Alh. S. Kwasau (the Plaintiffs’ father).
The deed of release which was dated 26th April, 2005 as well as the invasion of the house in dispute by the Defendants which led to the institution of this suit for declaration of title etc – that was when the cause of action accrued for the Plaintiffs and that was when they rushed to this Court to commence this action.
Section 4 of the Kaduna State Limitation Law is therefore not applicable to the instant suit because the right of action accrued in the year 2005 and suit is therefore when and

before the expiration of 10 years (sic).”
I agree with the reasoning of the lower Court. The facts pleaded and the evidence before the Court, leading to the Respondent’s claim before the Court, is that they were not aware of their ownership of the property in dispute until in 1998 when the brother of the Respondent was given a letter addressed to their late father from the Bank demanding for payment of overdraft facilities granted to him. They approached the Bank and on learning of the indebtedness arranged to pay the debt, following which payment the Bank, by Exhibit 4 in 2005, forwarded to the Respondent the Deed of Release of the property.
The Deed of Release, I note, was attached to this letter and is shown to have been registered as No. 120 at Page 120 of Vol 128 of the Kaduna State Lands Registry on 26/4/2005. Also, Bank Tellers in proof of payments made on 13/7/99 were tendered as Exhibits 3 and 3B. Further tendered is the Certificate of Occupancy under the Land and Native Rights Ordinance, in the name of the Respondent’s father, Alhaji Shehu Kwasau over the land in dispute at Plot No. 9 at Fagaci Rd, Gellesu dated 29/11/74,

which Certificate was said to have been released to them by the Bank. Their evidence is that, armed with these documents, they challenged the Appellants.
The Appellants in their Statement of Defence did not contend to the contrary, agreeing in Paragraph 15 of their Statement of Defence that the Respondent challenged them that they had located their father’s Certificate of Occupancy, demanding that the Appellants surrender the property to them.
I thus do agree with the lower Court that the Deed of Release by the Bank, registered on 26/4/2005 and their subsequent challenge of the Appellant, which was resisted by them, was the cause of action leading to the institution of this suit. The Writ of Summons in the suit before the lower Court, is endorsed as having been filed in 2005. I accordingly agree with the lower Court that this case was not statute barred and resolve this issue against the Appellants.

The 2nd issue for determination, is:
Whether having regard to the evidence led before the trial Court, the Appellant did not prove a better title to the disputed property, No. 9 Fagachi Road, Gyallesu Zaria, than the Respondent such that

the Appellant should have been entitled to judgment.

SUBMISSIONS
APPELLANT
The learned Counsel to the Appellants has submitted that when a party alleges that the decision of a Court is unreasonable and against the evidence led, such a party has put the entire case in issue. In other words, such a party has questioned the entire evidence led and the appraisal thereon by the Court. While admitting that Exhibit D1 and D2 did not confer title on the father of the Appellants, said Exhibit D1 is the record of proceedings of the Rent Tribunal Zaria, but shows that the proceedings were going on while the Respondent’s father was alive. It is thus erroneous to say that the record has no value in relation to laches and acquiescence. The lower Court did not also consider how a non-paying tenant, as the Appellants’ father was reputed to be, would institute proceedings for recovery of premises in the presence of the owner.

Counsel further submitted, referring to the evidence of PW1, that it shows that the mortgage had been extinguished as early as 13th July, 1999, submitting that the purpose of the Deed of Release is to inform the relevant

Ministry of Lands that the mortgage has been extinguished at the actual date the last payment was made. It does not, however prolong or extend the tenure or tenor of the mortgage. The Deed of Release, he said, is not the same as repayment. The trial Judge thus misconstrued this principle by believing that the mortgage was still on the property until 2005. What the UBA Bank did in 2005 was merely to inform their customer that the property has remained free for further transactions as far back as 13th July 1999.

RESPONDENT
The Respondent’s Counsel, in turn, submitted that the portions alleged by the Appellants not to have been properly evaluated are the portions regarding the Record of Proceedings of the Rent Tribunal and that of the Upper Area Court Exhibits D1 and D2, which the Court held were of no value. They failed to prove that their father bought the house. The fact that somebody went to Court and mentioned another’s property as theirs, does not make the property theirs, neither can the division of the property by the Upper Area Court dispose of the Respondent’s property covered by a Certificate of Occupancy or confer ownership

of the property in the Appellants.

Counsel, further itemized as follows:
a. The Respondents pleaded and led evidence to prove that the subject matter belonged to them and were rightly declared as owners of same.
b. The Appellants as Defendants woefully failed to prove their roof of title but hinged same on purported long possession and later claimed statute bar as clothing them with rights over the property.

In his Reply, the Appellants’ learned Counsel submitted, in response to the contention of the Respondent that they failed to tender any document in proof of sale, that what was pleaded and proved by the Appellants before the trial Court was a traditional sale. There is no need to tender documentary evidence in a traditional sale but proof of purchase price and possession by the buyer, which the Appellants have shown. He further submitted that it is from the Record of Proceedings of the Area Court, Exhibits D1 and D2, that the Appellants derive their title. It is therefore erroneous to hold that these documents did not confer title on the Appellants.

DECISION
It is settled that there are five ways in which ownership of

land may be proved, as follows:
1. By traditional evidence;
2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
3. Acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land;
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
SeeIdundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC; Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561 Page 224 at 264-265 Para H-C per Galinje JSC.
In the instant case, the Appellants relied as proof of ownership of the property, the sale of the property to their father by the Respondent’s

father. They also rely on proceedings of the Upper Area Court sharing the property in dispute, as part of the estate of their late father, to them. They further rely for proof of ownership, on the proceedings of the Rent Tribunal of Kaduna State, holden in Zaria in which one Malam Maiwada Habib was the Plaintiff and sued some tenants to Court.
The Respondent, on the other hand, relied on the 1st mode of proof, by production of documents of title in the name of their father. They also proved that on learning of the indebtedness of their father to the Bank, paid up the overdraft on the account, following which they were given the Certificate of Occupancy used as collateral as well as a Deed releasing the property from Mortgage.
The lower Court, following a review of the evidence before it held:
“The testimonies of all the Plaintiff’s witnesses are on all fours with the Plaintiff’s Statement of Claim as well as establishing their root of title. The testimonies of all the Plaintiff’s witnesses were not contradicted, controverted and/or challenged under cross examination.”

It also held:
“None of the Defendants’ witnesses is a witness to the acclaimed sale transaction between late Alh Maiwada and late Shehu Kasau.”
Referring to Exhibits D2 and D2A, the Hausa and English proceedings before the Upper Area Court, and Exhibit D1 the Proceedings of the Rent Tribunal, held that they “do not confer title on Alhaji Maiwada.”
It compared the evidence of the parties and held:
“So from the evidence adduced before the Court and all the materials placed before this Court, no one is left in any doubt and this Court so hold that the Plaintiff have established and proved his claims against the Defendants on the preponderance of probability and this Court hereby enters judgment for the Plaintiff against the Defendants as per their Statement of Claim.”
The assessment and credibility of witnesses is the primary function of the trial Court which had the singular opportunity of seeing and observing the witnesses, I hold. In the absence of strong reasons, an appeal Court will be slow to interfere with such findings. See All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F;

(2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC.
The findings of the lower Court are indeed founded on the evidence before it. DW1, one of the wives of the father of the Appellants and stepmother of the Appellants stated that her husband informed her that he bought the house of Alhaji Kwasau at Gyallesu, but that she doesn’t know the name of the street. She admitted that she was not present at the sale but was informed by her husband. DW2 was one of those who looked after the house as a care taker but does not know how the Appellant’s father got the house and that he was only asked, as a friend of the Appellants’ father to look after the house. He also does not remember the year the property was given to him to look after. DW3, one Garba Shehu said it was father of the Appellants that told him that the property was up for sale and that he had bought the property but that he was not present during the transaction of the sale. No document of sale was produced by any of the Appellants, neither any witness to the sale.

The Respondents on the other hand, by PW4, David Isa, a staff of UBA testified of the mortgage of the property by the Respondent’s father sometime in the 80’s and its full repayment in 2005. During the pendency of the loan, he said, there were no applications in respect of the land. PW3 the secretary of the District Head testified there is no other C of O in respect of the land or an application for change of ownership. PW5, Vitalis Amadi, the personal secretary of the deceased father of the Respondent and who was in charge of the properties and had the responsibility to collect rents, testified that he was never informed by his boss, the Respondent’s father that he sold the house to the father of the Appellants, but that he gave the house to him to stay in.
From the foregoing, it is clear that the Respondent proved a better title.

The Appellants’ Counsel in his Reply Brief, has however alleged, for the first time, that the sale to the Appellants was a customary sale for which no documents are required.
Not only was this not pleaded, for a sale of land under Customary Law to be constituted, there are three

essential ingredients, which are:
a. Payment of purchase price;
b. Purchaser is let into possession by the vendor; and
c. Same should be in the presence of witnesses.
See Atanda v Hon. Comm for Lands and Housing Kwara State (2018) 1 NWLR Part 1599 Page 32 at 53 Para G-H per Sanusi JSC; Odusoga v. Ricketts (1997) 7 NWLR Part 511 Page 1 at 15 Para D-E per Ogundare JSC; Adedeji v. Oloso (2007) 5 NWLR Part 1026 Page 133 at 167 Para F-G per Oguntade JSC.

While, by the Appellants’ account, the 2nd ingredient was satisfied, the 1st and 3rd ingredients, payment of purchase price and witnesses to the sale, are lacking, I hold. A customary sale has thus not been proved.

With regard to the Appellants claim to long possession, the law is that long and adverse possession cannot found a claim in title against the true owner. See Atunrase v. Sunmola (1985) 1 NSCC Page 115 (SC) at 123 Lines 3 & 4 per Kawu JSC; Kyari v. Alkali (2001) 11 NWLR Part 724 Page 412 SC at 446 Para F-G per Iguh JSC.

The defence of laches and acquiescence is also not available to the Appellants as this was not their case in their pleadings, the root of title

claimed by them being a sale by the Respondent’s father to theirs.

The Respondents, I hold, proved a better title to the disputed property. I again resolve the 2nd issue for determination against the Appellants.

Having resolved both issues against the Appellants, this appeal fails and is accordingly dismissed. The judgment of the lower Court, per M.L. Mohammed J., is consequently affirmed. The parties shall bear their respective costs.
I commend the industry and depth of submissions exhibited by both Counsel, Yemi S. Adekunle Esq. and A.Y. Musa Esq.

HUSSEIN MUKHTAR, J.C.A.: I was privileged to read, in draft, the judgment just rendered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. I am in agreement with the reasons therein and the conclusion that the appeal lacks merit. I therefore dismiss the appeal and subscribe to the consequential orders made in the judgment.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the benefit of reading before now, the judgment of my Lord Oludotun Adebola Adefope-Okojie, JCA and I agree with my Lord’s reasoning and conclusions in the said judgment. I do not see that I have

anything useful to add to the judgment. Suffice it therefore that the appeal lacks merit and is therefore dismissed by me. The judgment of the lower Court is affirmed.
Parties to bear their respective costs.

Appearances:

Yemi S. Adekunle Esq. For Appellant(s)

Y. Musa Esq. For Respondent(s)