MANGAI v. P. W. (NIG) LTD & ORS (2020)

MANGAI v. P. W. (NIG) LTD & ORS

(2020)LCN/14424(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Tuesday, July 21, 2020

CA/J/142/2016

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

KASHAP BADUNG MANGAI (For Himself And On Behalf Of The Lo-Kwon Family) APPELANT(S)

And

P.W. NIGERIA LTD 2. PLATEAU STATE MINISTRY OF LANDS AND TOWN PLANNING 3. JAMES WAKILI NGU RESPONDENT(S)

RATIO

WHETHER OR NOT WHERE A DISPUTED LAND IS WELL KNOWN TO BOTH PARTIES AND HAS NOT BEEN MADE AN ISSUE IN THE PLEADINGS OF PARTIES, IT WILL BE WRONG TO HOLD THAT IDENTITY OF THE DISPUTED LAND WAS NOT ESTABLISHED

The law is well settled that where a disputed land is well known to both parties and has not been made an issue in the pleadings of parties, it will be wrong to hold that identity of the disputed land was not established. That is trite law and was also the way the apex Court held in Tanko v. Echendu (2010) 12 S.C. 33 while upturning the decision of this Court inEchendu v. Tanko (2005) 11 NWLR (PT 936) 281 @ 289-290 commended to us ‘strongly’ by Messrs Hamman and Ezechukwu in first respondent’s brief of argument. What is more, the trial judge itself even went to visit the very stone hill in dispute and said this about it in his judgment:
“Besides, at the locus in quo the Court observed the stone hill. It was so massive that I find it difficult to believe that it can be owned by an individual or family.”
Where parties know the land in dispute, did not make it an issue and the Court also visited the land in the course of the trial as it did in this case, it will not be open to parties to raise issue of identity of land: see Abodunrin v. Arabe (1995) 5 NWLR (PT 383) 77 @ 89 (SC), Jimoh v. Akande (2009) ALL FWLR (PT 468) 209 @ 233, (2009) LPELR-8087 (SC) p. 33; Anyanwu v. Uzowuaka (2009) ALL FWLR (PT 449) 411 @ 436. PER UGO, J.C.A.

PLEADING TRADITIONAL HISTORY IN AN ACTION FOR DECLARATION OF TITLE TO LAND

That is even as the settled position of the law is that in pleading traditional history of ownership the claimant should not only plead the name of his ancestor who founded the land, he must also plead what the founding ancestor did specifically to actualize the founding: see Akanbi v. Salawu (2003) 6 S.C. (PT 11) 120 @ 149 (SC), Iroagbara v. Ufomadu (2009) ALL FWLR (PT 481) 843 @ 853; Adebayo v. Shogo (2005) ALL FWLR (PT 253) 739 (SC), Anyafulu v. Meka (2014) 7 NWLR (PT 1406) 396 (SC). Where he fails in that regard, it has been said, it is generally difficult to see how the burden of proof on him can be said to have been satisfactorily explained: see Adebayo v. Shogo supra at p. 746. Appellant’s omission to plead how and what Kwon did to own the disputed stone hill killed his case on the pleadings even before trial started. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal questions the decision of the High Court of Plateau State dismissing appellant’s claims against the respondents for:
1. A declaration that plaintiff’s family is the rightful owner of all that Stone Hill known as Daku Tabalang which is lying and situate at Dandyes area of Chugwi Village along the Vom-Manchok Road.
2. A declaration that the purported sale of the plaintiff’s stone hill known as Daku Tabalang in Chugwi Village by the 3rd defendant to 1st defendant is null, void and of no effect whatsoever.
3. A declaration that the Right of Occupancy No PL 33321 purportedly issued the 1st defendant by the 2nd defendant as it affects the stone hill in issue is null, void and of no effect.
4. The sum of ₦20,000,000.00 (Twenty Million Naira) being general damages for trespass and destruction of the said stone hill.

As an ALTERNATIVE to the damages claimed by him, he sought (a) An order of Court compelling 1st defendant to render accurate account of the quantity and market value of the stone chipping it extracted from the stone hill in dispute

and pay to the plaintiff such value Or (b) An order of Court appointing independent Valuers and/or Quantity Surveyors to assess the quantity and market value of the stone chipping extracted by 1st defendant from the stone hill in dispute and for the defendants to jointly and separately pay such value to him.

The case appellant put forward in support of those claims was that his Lo-kwon family exclusively owns the massive Daku Tabalang Stone Hill that is the subject of his claim. He said sometime in January 2000, first Respondent, a construction company, got a contract from the Federal Government of Nigeria to construct the Vom-Manchok Road and needed a camp site for her equipment so she approached him and several other persons who owned land around the stone hill to purchase their lands. Pursuant to that, he said, he and twenty four other persons duly sold their said pieces of land surrounding the stone hill to first respondent. He claimed, however, that that sale did not include the stone hill. He said even when his family offered to sell the stone hill to first respondent she turned down the offer. Despite that fact, he says, first respondent has been

wrongfully quarrying the stone hill claiming that it was included in the sale, that besides, she also paid another sum of money to Chugwi village through its village head, the 3rd respondent, who claimed the stone hill belonged to the entire village by their Berom custom. First respondent has refused to stop quarrying the stone hill, even after receiving letters from his family’s solicitors telling it to stop, hence his action, he claimed.

First respondent on her part asserts that the stone hill is part of what she bought from appellant and the twenty four other land owners. She claims the stone hill was in fact the attraction for her negotiations with appellant and his neighbours, because she needed to quarry the stone hill for her construction work; that appellant and all the other sellers of land were also aware of this from the beginning and did sell the stone hill to her. Despite buying the stone hill from appellant and the other co-sellers, she further asserted, she was told by the Village Head of Chugwi and District Head of the Area that stone hills by Berom custom applicable to Chugwi village belongs to the traditional authority, namely the

District, Village Heads and the Community and not families or individuals and for that reason, she had to pay additional ₦100,000.00 to 3rd Defendant, Village Head of Chugwi Village. Following that transaction, she said she applied for and was even granted Right of Occupancy by Plateau State Government over the area she bought including the stone hill.

The third defendant (Village Head of Chugwi village) in his 14-paragraphed amended statement of defence confirmed the assertions of 1st respondent that by Berom custom stone hills belong to the whole community and not to individuals or families and so it is with the Daku Tabalang stone hill too – that it belonged to Chugwi community. He also admitted that he as Village Head of Chugwi received ₦100,000.00 from 1st respondent on behalf of Chugwi village for the stone hill in question and the money was used for community project.

With second Respondent not filing a defence, the case went to trial before Dakwak, J., of the High Court of Plateau State and witnesses were called by all three parties that filed statements of defence. One of the witnesses called by appellant to prove his family’s

ownership of the stone hill in issue was his younger brother, Pam Mangai, a Pastor who testified as P.W.2.

After taking evidence from all witnesses presented by the parties and receiving final addresses from counsel, the trial judge held in his judgment of 28/9/2015 that appellant failed to prove his case, that in fact his case was ‘baseless and lacking in merit,’ and on that basis dismissed it.

Appellant is dissatisfied with that verdict hence his instant appeal of twelve grounds from which he distilled four issues for determination as follows:
1. Whether the learned trial judge was right to find that he relied solely on traditional history to found his claim over the stone hill in dispute.
2. Whether the learned trial judge was right to find that the stone hill in dispute belonged to Chugwi traditional community.
3. Whether the learned trial judge was right to dismiss his case.
4. Whether the learned trial judge was right to find and hold that 1st respondent validly and legally purchased the stone hill in dispute.

First respondent being the only one to respond to the appeal formulated three issues for

determination as follows:
1. Whether appellant at the lower Court proved his case for declaration of title to the stone hill by cogent and credible evidence as required by law.
2. Whether the learned trial judge was right when he preferred the evidence of the respondents to that of the appellant in the determination of the ownership of the stone hill.
3. Whether there was a valid purchase of the stone hill in dispute by the 1st respondent as found by the trial Court.

On appellant’s issue one, his counsel Dr. H.S. Ardzard submitted that the trial judge was wrong when he said in his judgment that appellant as plaintiff relied solely on traditional history to prove his family’s ownership of the stone hill in question and dismissed his case on the ground that he failed to prove the traditional history pleaded by him. Counsel argued that in line with the case law, for which he cited Idundun v. Okumagba (1976) 9-10 S.C. 227, the learned trial judge ought to interrogate other methods of proof of ownership of land pleaded by him, particularly ownership by his family members of adjacent land or land so connected to the disputed stone

hill that the inference that they are its owners can be drawn. Counsel submitted that it is settled by Idundun v. Okumagba (supra) that there are five independent ways of proof of ownership of land and the failure of one does not preclude the Court from interrogating any other method pleaded by the claimant. The trial judge’s failure to consider appellant’s Kwon family’s ownership of the stone hill by reason of its ownership of adjacent land or land so connected with the stone hill as to raise the inference that they are the owners of the stone hill too, counsel submitted, did not do justice to appellant’s case so we should intervene by resolving this issue in his favour and hold that he proved his case.

On issue 2, Dr. Ardzard attacked the trial judge’s finding that the stone hill in question belonged to Chugwi community of appellants and not appellant’s family. Counsel attacked the evidence of DW2, DW3 and DW5 who testified to the said Berom custom of communal ownership of stone hills and submitted that the said witnesses did not prove it. He said their evidence was contradictory; that in any case the evidence of

P.W.9, PW10 and PW11 who testified in favour of appellant’s position that stone hills belong to families and not to community by Berom custom was more cogent.

On appellant’s issue 3 regarding whether the learned trial was right in rejecting appellant’s case, Dr. Ardzard went through the evidence adduced by appellant and his witnesses and submitted that appellant proved his case so the trial judge was wrong in rejecting his case.

On his issue 4 regarding whether the trial judge was right to find and hold that 1st respondent validly and legally purchased the stone hill in dispute, learned counsel again went through the oral and documentary evidence that was adduced by 1st respondent in support of her assertion of purchase of the stone hill and submitted that she did not prove it so the trial judge was wrong in finding otherwise.

Responding for 1st respondent, Messrs Ibrahim Hamman and A.C. Ezechukwu started by harping seriously on the fact that appellant’s claims before the lower Court were mainly declaratory. They pointed out that declaratory reliefs are granted only on cogent and credible evidence and not even on the

basis of admission of admission by the defendant, and that a claimant for declaratory relief can only succeed on the strength of his case and not on the basis of weakness of the defendant’s case. Learned counsel then went through the evidence adduced by appellant in support of his family’s traditional history of ownership of the stone hill in question and submitted that it was not credible so the trial judge was right in rejecting it.

In response to appellant’s argument that the trial judge was wrong in limiting himself to only the traditional history of ownership he pleaded in dismissing his case, learned counsel cited among others the case of Owhonda v. Ekpechi (2003) 17 NWLR (PT 849) 326 @ 344 to submit that in an action for declaration of title to land, where a plaintiff fails to discharge the burden of proving his root of title to the land as pleaded by him, he cannot be entitled to the declaration sought and cannot even fall back on long possession and act of ownership to prove title. They submitted that a claimant must first prove a valid root of title to be able to rely on acts of ownership or long possession, and that having

failed to prove the title of his Lo-Kwon family to the stone hill which appellant pleaded, his case was bound to fail.

The arguments of Mr. Hamman and Ezechukwu on 1st respondent’s issue 2 mainly revolved around whether appellant proved the identity of the disputed land. Counsel argued, strenuously, that there was a duty on appellant, as the person claiming ownership of land, to prove the identity, dimension, size and boundaries of the land he was claiming and his failure to do that was fatal to his case. In support of that argument, counsel particularly commended to us this Court’s decision in Echendu v. Tanko (2005) 11 NWLR (PT 936) 281 @ 289-290. They submitted that this case merits a strict application of the reasoning of this Court in Echendu v. Tanko.

On first respondent’s issue 3, counsel like Dr. Ardzard also went through the oral and documentary evidence adduced by first respondent and submitted that she proved her purchase of the disputed stone hill.

Appellant filed and adopted a reply brief which he mainly used to argue facts rather than reply to new issues arising from the respondent’s brief. He nevertheless

managed to use it to make the following telling admission in paragraph 2.3 (last page) of that Reply brief: “From the pleadings and facts of the instant case it was established before the lower Court that the stone hill in dispute is situated on the land belonging to the appellant and 24 others…” (Italics mine).

Resolution of issue(s)
I am convinced that at the end of the day, the only live issue for determination in this appeal is whether appellant proved his case of ownership of the stone hill in question by his Lo Kwon family and the trial judge wrong in holding that he did not. All other issues identified by the parties are subsumed in that sole issue. I shall therefore adopt this issue for the determination of this appeal and proceed to do that now. In doing that, I deem it necessary to first dispose of the argument of Messrs Hamman and Ezechukwu on a purported onus on appellant to prove the identity of the disputed stone hill and his failure to do so as affecting his case. In the first place, like every case that is tried on pleadings, the identity of a disputed piece of land will only become an issue in the case when it is

made so by the defendant in his statement of defence: see Buraimoh v. Bamgbose (1989) 3 NWLR (PT 90) 352; Adenle v. Olude (2002) 18 NWLR (PT 799) 413. That was not the case here as 1st respondent never claimed even in the remotest way in her statement of defence that she did not know the stone hill claimed by appellant; on the contrary, she herself claimed that that very stone hill was the main attraction for its sales transaction with appellant and his neighbours and it is part of the land she bought from them and even paid another ₦100,000.00 to the 3rd defendant, Village Head of appellant. How then can she turn around to now say the identity of that same stone hill was not clear to her so appellant needed to define it further to her understanding? The law is well settled that where a disputed land is well known to both parties and has not been made an issue in the pleadings of parties, it will be wrong to hold that identity of the disputed land was not established. That is trite law and was also the way the apex Court held in Tanko v. Echendu (2010) 12 S.C. 33 while upturning the decision of this Court inEchendu v. Tanko (2005) 11 NWLR (PT 936) 281 @

289-290 commended to us ‘strongly’ by Messrs Hamman and Ezechukwu in first respondent’s brief of argument. What is more, the trial judge itself even went to visit the very stone hill in dispute and said this about it in his judgment:
“Besides, at the locus in quo the Court observed the stone hill. It was so massive that I find it difficult to believe that it can be owned by an individual or family.”
Where parties know the land in dispute, did not make it an issue and the Court also visited the land in the course of the trial as it did in this case, it will not be open to parties to raise issue of identity of land: see Abodunrin v. Arabe (1995) 5 NWLR (PT 383) 77 @ 89 (SC), Jimoh v. Akande (2009) ALL FWLR (PT 468) 209 @ 233, (2009) LPELR-8087 (SC) p. 33; Anyanwu v. Uzowuaka (2009) ALL FWLR (PT 449) 411 @ 436. Identity of the disputed stone hill I hold was not in issue at all and did not need any further proof by appellant.

That takes me to the core issue of appellant’s claim that he proved his family’s ownership of the stone hill in issue and the lower Court was wrong in holding that he did not. Did he?

I am not sure at all. First, it must be realized that appellant’s claims in the action were for declarations, of which the law is settled lie at the discretion of Court. Declarations are not granted even on the basis of admission by defendant: see Bello v. Eweka (1981) NSCC 48 @ 57-58. The Court exercises its discretion in granting declaratory reliefs only in deserving case and where the claimant leads strong and cogent evidence to the declaration sought and the Court also satisfied that taking into account all the circumstances of the case the claimant is entitled to it: see Makanjuola v. Ajilore (2001) 12 NWLR (pt. 727) 416, and Network Security Ltd. v. Dahiru (2008) ALL FWLR (pt. 419) 475 @ 498.

Here appellant founded his family’s claim to the stone hill on traditional history. He pleaded it in paragraph 16 of his further, further, further Amended Statement of Claim thus:
16. The plaintiff avers that the Lo-kwon family inherited the stone hill from their ancestors as follows: Mangai who got from Kashap, who got from Kwon who first owned the stone hill.

How and what Kwon did to become the first to own the stone hill is not

disclosed by appellant in this pleading. That is even as the settled position of the law is that in pleading traditional history of ownership the claimant should not only plead the name of his ancestor who founded the land, he must also plead what the founding ancestor did specifically to actualize the founding: see Akanbi v. Salawu (2003) 6 S.C. (PT 11) 120 @ 149 (SC), Iroagbara v. Ufomadu (2009) ALL FWLR (PT 481) 843 @ 853; Adebayo v. Shogo (2005) ALL FWLR (PT 253) 739 (SC), Anyafulu v. Meka (2014) 7 NWLR (PT 1406) 396 (SC). Where he fails in that regard, it has been said, it is generally difficult to see how the burden of proof on him can be said to have been satisfactorily explained: see Adebayo v. Shogo supra at p. 746. Appellant’s omission to plead how and what Kwon did to own the disputed stone hill killed his case on the pleadings even before trial started.

As if that was not enough, appellant’s own younger brother, Pam Mangai, PW2, in evidence contradicted and interred whatever was remaining, if any, of that incomplete root of title of first ownership of the stone hill by Kwon. Pam Mangai while being led by appellant’s counsel

had this to say on his family’s root of title:
“We inherited that stone from our father Mangai who inherited from Kashap who inherited from Kwon inherited from Nyai who was the first person to own and cultivate the place.”

The trial judge referenced this contradiction in his judgment when he said that “the history as to the founder of the place relied upon by the plaintiff is contradictory and thus not reliable.” Dr. Ardzard for appellant tries to trivialize this crucial finding by describing it as mere discrepancy. I do not agree with him. That was a contradiction and goes to the very root of appellant’s family’s claim to the stone hill. It is either Kwon was the first ‘to own’ the stone hill by whatever undisclosed means he did that and passed it to his descendants as pleaded by them or Nyai was the first person to ‘own and cultivate’ the stone hill as stated by P.W.2, a member of the same family. That is even assuming that a stone hill is capable of cultivation.

Dr. Ardzard’s further submission that the trial Judge should have proceeded to consider other methods of

ownership of the same stone hill, particularly ownership of adjacent and connected land by members of appellant’s family, is also of no moment especially as appellant did not plead names let alone locations of the said adjacent or connected land owning members of his family to warrant that inference/consideration.

At any rate, the trial judge delved deep into all the evidence, including other issues agitated by parties, before him and made several findings, all in favour of first respondent. These include that stone hills by Berom custom applicable to appellant’s Chugwi village belong to the community and not individuals or family, that nevertheless the amount first respondent paid appellant and his neighbours included the stone hill in issue and same was validly sold to 1st respondent, and that first respondent paid additional ₦100,000.00 to the community for that same land. These findings I note are all supported by the evidence on record so this Court which did not enjoy the advantage the trial judge had of seeing witnesses testify to them has to respect the trial judge’s decision: see Agbonifo v. Aiwerioba & Anor (1988) 1 NSCC

237 @ 245; Ugo v. Obiekwe & Anor (1989) LPELR-3319 (SC) p. 20-21, Odofin v. Ayoola (1984) NSCC 711 @ 729-732.

Furthermore, as shown earlier, appellant who founded his case on his Lo-Kwon family’s exclusive ownership of the said massive stone hill finally conceded in his Reply Brief that “From the pleadings and facts of the instant case it was established before the lower Court that the stone hill in dispute is situated on the land belonging to the appellant and 24 others…” Appellant is bound by his brief of argument which he adopted before us as part of his case for us to allow his appeal. Appellant’s Lo-Kwon family cannot claim exclusive ownership of a stone hill they now admit they only own in common with other twenty-four other families that sold to first respondent. Little wonder the trial judge in his judgment said that the fact that the other twenty-four families who also sold land to first respondent are not claiming the stone hill further shows that it is part of what they all sold with appellant to first respondent. At any rate the Court cannot make declaration of ownership in favour of a part-owner of land:

Oloriode & Ors v. Oyebi & Ors (1984) LPELR-2591 (SC). That is even assuming that appellant was correct in this assertion, which he is not. Whichever way, that concession in his reply brief further confirms the trial judge’s finding that the stone hill in issue was not owned exclusively by appellant’s family as he claimed.

The result of all the foregoing is that the lower Court was correct in its decision that appellant failed to prove his case. Appellant therefore deserved the order of dismissal the Court made on his case, meaning that this appeal fails and is here dismissed while the decision of the Plateau State High Court is affirmed.
Cost is assessed at ₦100,000.00 against appellant in favour of first respondent.

TANI YUSUF HASSAN, J.C.A.: I agree with the lead judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA, dismissing the appeal and affirming the judgment of the lower Court. I abide by the order as to cost.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading a copy of the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. I agree with the reasoning and conclusion

reached thereat that the appeal fails and should be dismissed.

I also dismiss the appeal and abide by the consequential orders there in made including the order on cost in favour of the 1st Respondent.

Appearances:

Dr. H.S. Ardzard with him, M.M. Mandong, Esq. For Appellant(s)

A.C. Ezechukwu, Esq. for the 1st Respondent

Second and third Respondents were not represented and did not also file briefs of argument For Respondent(s)