MALINGA MOHAMMED & ORS v. ALHAJI ALI UMORU
(2019)LCN/13167(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of May, 2019
CA/J/392/2018
RATIO
LAND LAW: DECLARATION OF TITLE TO LAND: THE PLAINTIFF SUCCEEDS ON THE STRENGTH OF HIS CASE
In a claim for declaration of title or ownership of land, the Plaintiff succeeds on the strength of his case and not on weakness of the Defendants case, and the onus lies on the Plaintiff to satisfy the Court on evidence he adduced that he is entitled to a declaration of title.PER TANI YUSUF HASSAN, J.C.A.
LAND LAW: 5 WAYS OF PROVING TITLE TO LAND
Title to land or ownership of land may be proved in any of the following five ways:
1. By traditional evidence.
2. By production of documents of title which are duly authenticated.
3. By acts of selling, leasing, renting out all or part of the land or farming on it or on a portion of it.
4. By acts of long possession and enjoyment of land.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. Idundun Vs Okumagba (1976) 9/10 SC 277 and Ayanwale Vs Odusami (2011) 12 SCNJ 362 at 364.PER TANI YUSUF HASSAN, J.C.A.
COURTS: DUTY OF THE TRIAL COURTS
When evidence is led before a trial Court, it has the duty to assess and evaluate such evidence and ascribe probative value to it, before it can arrive at a decision one way or the other. It is a sacred duty placed on the trial Court because it has the singular opportunity of seeing, hearing and observing the demeanor of witnesses as they give evidence before it.PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
Between
1. MALINGA MOHAMMED
2. MALLAM AUWAL
3. MALLAM LAWAN Appellant(s)
AND
ALHAJI ALI UMORU Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of High Court of Borno State, sitting in Maiduguri, delivered on the 26th day of June, 2018 by Honourable Justice M. S. Umara in Suit No. BOGC/KDG/CV/14/2017.
The Respondent was the Claimant who by a Writ of Summons and Statement of Claim dated and filed on 30th of June, 2017 claimed against the Appellants as Defendants therein, as follows:
(a) A declaration that the Claimant is the lawful and legal owner of the plot of land covered by Auno Local Government Allocation Letter dated 25th July, 1983 in respect of Plot No. 142 in Block B at New Site Mogramti Area.
(b) A declaration that any move or attempt by the Defendants, by themselves, servants, agents or privies or any person(s) by any description howsoever acting through them or on their behalf from tempering, selling or alienating in any way to any person(s), body, organization or any one by any description howsoever the property covered by Auno Local Government Allocation Letter dated 25th July, 1983 in New Site Mogramti Area is unlawful, illegal and void.
(c) Cost of the suit.
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In response to the claim, the Defendants/Appellants filed a joint statement of defence dated the 14th of August, 2017.
The case of the Respondent at the lower Court is that the land in dispute was given to him by his grandfather Alhaji Abdullahi Mai Anguwa Husnu who was the original owner of the land, having been allocated same by Auno Local Government in 1983. The Appellants on the other hand claimed to have purchased the property in dispute from one Alhaji Hussaini Danbale in the year, 2000.
The Claimant/Respondent said while fence was being erected on his plot of land, the Defendants/Appellants came with weapons and threatened to deal with him and the labourers working for him if they don?t stop construction on the land as they claimed the land to belong to them. The Respondent?s solicitor wrote a letter of complaint to SARS unit of the Nigerian Police. Six days later, the Defendants/Appellants also reported the Respondent to the State C.I.D. The Respondent was arrested and detained. Upon his release from detention he instituted this action at the lower Court. At the conclusion of trial judgment was given in favour of
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the Respondent against the Appellants.
Dissatisfied, the Appellants appealed to this Court. The Notice of Appeal was dated the 24th of August, 2018. The Notice of Appeal contained four grounds with their particulars and reliefs sought.
The Appellants brief dated 1st day of November, 2018 was filed on the 5th of November, 2018. The brief settled by U. L Ngulde Esq., has one issue for determination thus:
Whether having regard to the pleadings and evidence adduced by the Respondent herein at the trial Court vis-a-vis the position of the law that a claimant seeking for a declaration of title over land is to succeed on the strength of his own case and but not on the weakness of the defence, one can say that the Respondent discharged the burden of proof placed on him so as to be entitled to judgment in his favour at the trial Court (Grounds 1, 2, 3 and 4)
The Respondents brief dated 29th November, 2018 was filed on the 5th of December, 2018, settled by G. Yunusa Esq. Learned Counsel for the Respondent adopted the lone issue formulated by the Appellant. l adopt the issue formulated by the Appellant but reframed it to
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read:
ISSUE ONE
Whether having regard to the pleadings and evidence adduced before the trial Court, can the Respondent be said to have discharged the burden of proof placed on him to entitle him to judgment
It was the submission of the Appellants Counsel on this issue, that there exist five methods for establishing ownership of land as held by the Supreme Court per A. Sanusi JSC in the case of Pada vs Galadima (2017) 71 Pt. 2) NSCQR 538 at 557. That from the pleadings of the Claimant, he is relying on production of document which is the allocation granted to his grandfather who in turn was said to have given same to the Claimant. It is argued that there is nowhere in the evidence of Claimant as PW1, that Exhibit ?E? was referred to as the document tendered and admitted by the Court. That Exhibit ?E? dated 25th July has the name of Alhaji Abdullahi as the allotee, that PW1, the Respondent when tendering the document failed to identify the document as described.
Appellants Counsel referred to page 82 lines 1-15 of the record on the evidence of PW1, Respondent herein, and submitted that his
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evidence is contradictory on reference to different document with different dates, but that the trial Court still accepted the document and admitted same as Exhibit E. The argument of the Appellants Counsel is that Exhibit E was not pleaded as allocated to Alhaji Abdullahi and it was also not pleaded to be dated 25th July, 1983. That what the Claimant pleaded in his paragraph 13 of his statement of claim is a document dated 5th July, 1983 and no such document was tendered as exhibit. It is submitted that the trial Court was in error to have admitted Exhibit E having not been pleaded and identified by the Claimant. That the effect of the evidence of the Respondent including Exhibit E which is at variance with the pleading goes to no issue, and we are urged to discountenance same.
Still on Exhibit E, Appellants Counsel contended that Exhibit E dated 25th July, 1983 was issued to Alhaji Abdullahi but there is nowhere pleaded that Alhaji Abdullahi is one and the same person as Alhaji Abdullahi Mai Anguwa Husnu, the claimant?s grandfather.
Submitting further, that
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the Claimant who pleaded his root of title to his grandfather, but he failed to establish how his grandfather became the original owner of the land. That a party whose claim of title is dependent on another title, must not only plead, but must plead the title of the person from whom he derives his alleged ownership of the land. He relied on Nwadiogbu vs Nnadozie (2001) LPELR 2080 SC; Sanyaolu Vs Coker (1983) 1 SC 168 and Ugo Vs Obiekwe (1989) 1 NWLR (Pt. 99) 566.
It is finally submitted that Exhibit ?E? admitted by the lower Court cannot be an authentic document as a staff of Konduga Local Government who testified as DW4 said Exhibit ?E? did not emanate from his office. That in a claim of declaration of title over land, the Claimant is to succeed on the strength of his case and not on the weakness of the defence. The Court was referred to Onibudo Vs Akibu (1982) SC 60 and Adeleke Vs Iyanda (2001) 6 SCNJ 101 at 120.
Relying on the case of Orianzi Vs A.G. Rivers State (2017) LPELR 41737, it is submitted that the trial Court was in error when he held that the burden of proof shifted on the Appellants, while the Respondent has
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failed to adduce sufficient evidence in proof of his claim. We are urged to allow the appeal and set aside the decision of the lower Court.
For his part, learned Counsel for the Respondent argued that the Respondent has discharged the burden of ownership of the land in dispute by producing Exhibit E in line with the first two methods of proving ownership of land as held in plethora of authorities. That the Respondent throughout his statement of claim, he pleaded only one document dated 25th July, 1983 bearing plot No. 142 Block B New Site Mogramti. It is submitted that the Respondent and his three witnesses maintained at trial that the Respondent was given ownership of the plot in dispute by his grandfather which is Exhibit E. That the contention of the Appellant is misconceived as the Respondent properly pleaded Exhibit E and laid a proper foundation for its admissibility.
Respondents Counsel said the typographical mistake heavily relied upon by the Appellant in paragraph 13 of the Respondents Statement of Claim with regard to the document dated 5th July, 1983 instead of 25th July, 1983 is not
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substantial to affect the case of the Respondent, as the same fact was pleaded in paragraphs 16 and 12(a) and (b) of the same statement of claim at pages 2, 5 and 6 of the record. That the mistake is an omission, and the Appellant having not objected to the admissibility of Exhibit ?E? at trial, cannot be heard to complain at this stage. He referred to Dahiru Vs Kamale (2001) NWLR (Pt. 723) 224 at 226 ratios 1 and 2, and Maersk Vs Addide (2002) 11 MJSC 157 at 196 paras. D-G.
It is also submitted that the submissions of the Appellants are misplaced as it is not the duty of the Appellate Court to hear evidence. That proceedings at the trial Court which the Appellants did not raise, they cannot be heard to complain on appeal. The Court was referred to Kwara State Civil Service Commission Vs Abiodun (2009) ALL FWLR (Pt. 493) 1326 ratios 10 and 11 and Musa Vs State (2009) ALL FWLR (Pt. 492) 1023 ratios 2 to 4. Learned Counsel said the Respondent has discharged what is required of him to substantiate his claim with regard to the subject matter plot No. 142 Block B.
On the evidence of DW4, when he testified that Exhibit ?E? is not a
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genuine document, he submitted that the same witness admitted that he was not employed as at the time Exhibit E was authored. That mere allegation that Exhibit E is not genuine cannot render it so, because Exhibit ?E? is a written document and can only be rendered void by another document Basil Vs Fajebe (2001) Vol. 3 MJSC 87 at 94. That Exhibit E remains a valid document in proof of the Respondent?s claim and we are urged to so hold.
It is finally submitted that the evidence of the Appellants based on Exhibit A, B, C and D runs contrary to the claim of the Respondent on property No. 142 Block B. We are urged to dismiss the appeal and affirm the judgment of the lower Court.
In a claim for declaration of title or ownership of land, the Plaintiff succeeds on the strength of his case and not on weakness of the Defendants case, and the onus lies on the Plaintiff to satisfy the Court on evidence he adduced that he is entitled to a declaration of title.
Title to land or ownership of land may be proved in any of the following five ways:
1. By traditional
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evidence.
2. By production of documents of title which are duly authenticated.
3. By acts of selling, leasing, renting out all or part of the land or farming on it or on a portion of it.
4. By acts of long possession and enjoyment of land.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. Idundun Vs Okumagba (1976) 9/10 SC 277 and Ayanwale Vs Odusami (2011) 12 SCNJ 362 at 364.
There is no doubt that in the instant appeal, ownership of the land in dispute was in issue. While the Appellants claimed ownership of the land on purchase, the Respondent based his claim on a gift from his grandfather who was the original allotee of the land. The parties herein as Claimant and Defendants have a duty to establish their claims. The Respondent as Claimant at the lower Court called three witnesses in proof of his claim and tendered one exhibit, which is Exhibit ?E?, the Appellants called four witnesses and tendered Exhibits ?A?, B?, C?, ?D?
