MBANU v. DANIEL (2022)

MBANU v. DANIEL

(2022)LCN/17085(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, June 08, 2022

CA/YL/09/2021

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

AMOS MBANU APPELANT(S)

And

RAMATU MANASA DANIEL RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE A PARTY IS CLAIMING OWNERSHIP OF LAND OR REAL PROPERTY

It is settled beyond contention that a party who is claiming ownership of land or real property must adduce cogent and credible evidence to show how he is entitled to such land. In other words, he must satisfy the Court how he got title to the land or property in question and that such root of title is valid in law.

THE POSITION OF LAW ON THE COURT HEARING OF A MATTER DURING VACATION

The procedure which the Appellant is complaining of under this issue, that is the hearing of a matter during vacation upon an affidavit of urgency is governed by the rules of the lower Court in Order 8 thereof. For purposes of clarity, the whole of Order 8 Rules 3, 4 and 5 of the Adamawa State High Court Civil Procedure Rules 2013 under which the matter was heard is herein reproduced thus:
‘’3. The several offices of the Court shall be open at such times as the Chief Judge shall direct.
4. (1) The sitting of the Court for the dispatch of causes shall be held on every week-day except that the Court shall not sit:
(a) on any public holiday;
(b) during the week beginning with Easter Monday;
(c) during the period beginning on Christmas Eve and ending on 2nd January next following.
(2) There shall be an annual vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may by notification in the Gazette appoint.
5. (1) Notwithstanding the provisions of Rule 4, any action may be heard by a Judge in Court during any of the periods mentioned in Sub-rule (1) (b) or (c) of Rule 4 or Sub-rule (2) where the action is urgent.
(2) An application for an urgent hearing shall be made by motion ex-parte and the decision of the judge on the application shall be final.’’ PER TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Adamawa State in SUIT NO: ADSY/112/2018 delivered on 9th September, 2020 wherein the Court gave judgment in favour of the Respondent.

The material facts of the case that culminated in this appeal is that the Respondent acting on the belief that she was entitled to declaration of title over the land in dispute brought an action before the lower Court vide writ of summons filed on 6th September, 2018, seeking the following:
1. A declaration that the title and ownership to the land situated and lying at Bachure, Karewa Ward Jimeta measuring 30M x 15M is vested to the Plaintiff.
2. A declaration that the acts of the Defendant on the land situated and lying at Bachure, Karewa Ward Jimeta measuring 30M x 15M to the Plaintiff’s land constituted a trespass.
3. An order directing the Defendant to demolish an illegal structure erected on the Plaintiff’s land situated and lying at Bachure, Karewa Ward Jimeta measuring 30M x 15M.
4. An order of perpetual injunction restraining the Defendant, his Agents, Servants, Privies and any other person whosoever claiming through him from further trespass and in any manner tampering with the said land of the Plaintiff.
5. The sum of N700,000 (Seven Hundred Thousand Naira) as general damages.
6. Cost of this suit

Requisite processes were exchange between the parties, with the Appellant filing statement of defence, counter-claim and other relevant processes.

Following a full trial, the learned trial Judge, in a judgment delivered on 9th September, 2020, held that the Respondent had proved her claim, while the Appellant failed to prove his counter-claim. The lower Court consequently granted the Respondent’s prayers as prayed, save for the prayer for general damages, in respect of which the sum of N250,000.00 (two hundred and fifty thousand naira), was awarded in favour of the Respondent.

Dissatisfied, the Appellant appealed the judgment via Notice of Appeal dated and filed on 27th November, 2020 with two grounds of appeal.

The Appellant’s Brief of Argument is dated 20th September, 2021, and filed on 21st September, 2021, but deemed as properly filed on 23rd September, 2021.

Appellant’s counsel formulated two issues for determination to wit:
1. Whether the trial High Court Judge has not misdirected himself to have declared title to the land subject of this appeal to the Respondent when she has not proved her claim on the balance of probability and also dismissed the counter-claim of the Appellant. (Ground 1)
2. Whether the trial Court Judge was not in error to have assigned this matter to himself, assumed jurisdiction, hear and determine same when there was serious protest from the Defendant regarding the filing, assignment and hearing of this matter by vacation Judge having fall outside the purview of cases that should be heard during vacation. (Ground 2)

The Respondent’s Brief of Argument is dated and filed on 20th October, 2021. Respondent’s counsel distilled two issues for determination thus:
1. Whether the Plaintiff/Respondent has proved title to the land in dispute and whether the trial Court was right when it declared title to land in dispute to the Plaintiff/Respondent, dismissed the Defendant/Appellant’s counter-claim having regard to the evidences adduced before the trial Court. (Ground 1)
2. Whether the trial Court was right when it assumed jurisdiction, heard and determined the matter before it having regard to the affidavit of urgency placed before the trial Court by the Plaintiff/Respondent. (Ground 2)

A calm examination of the issues as presented by counsel on both sides to this appeal reveals that they are substantially the same and adequately capture the controversy in this appeal. I adopt the Appellant’s issues for the purpose of convenience in the determination of this appeal.

ISSUE ONE:
WHETHER THE TRIAL HIGH COURT JUDGE HAS NOT MISDIRECTED HIMSELF TO HAVE DECLARED TITLE TO THE LAND SUBJECT OF THIS APPEAL TO THE RESPONDENT WHEN SHE HAS NOT PROVED HER CLAIM ON THE BALANCE OF PROBABILITY AND ALSO DISMISSED THE COUNTER-CLAIM OF THE APPELLANT. (GROUND 1)

Learned counsel for the Appellant argued that the evidence adduced by the Respondent at trial, was inconclusive and did not establish her claim to the land in dispute, because there is no document before the Court evidencing movement of title from Kabiru Lamdo Hadeja the original owner to Lawan Mohammed Gidado and subsequently from Lawan Mohammed Gidado to John Zuntuwa the Respondent’s alleged predecessor in title, nether was there any testimony of a Witness to the alleged gifting of the land to Lawan Mohammed Gidado by Kabiru, which would have satisfied the requirement of customary transfer of land.
He relied on Nruamah v. Ebuzoeme (2013) All FWLR Pt681 ratio 5 and Matanmi v. Dada (2013) All FWLR Pt.682 page 638 ratio 3.

Counsel submitted that contrary to the findings of the learned trial Judge, the testimony of Kabiru Lamdo Hadeja the original owner of the land at trial, was not in favour of the Respondent’s claim as he denied all that was purportedly presented as his deposition on oath and insisted that the land belongs to the Appellant during cross-examination and the purported deposition on oath containing the Appellant’s oral testimony offends Section 119 of the Evidence Act, as it contained no illiterate jurat despite the fact that Kabiru Lamdo Hadeja was illiterate.

Learned counsel further argued that the Appellant on his own part at trial established his entitlement to the title over the land in dispute by virtue of Exhibit CC1, the sale agreement by which Kabiru Lamdo Hadeja sold the land in dispute to the Appellant, witnessed by the DW1 and that the fact that the Appellant farmed on the land in dispute for four years, from 2009-2012 and built on same in 2013 without interruption by the Respondent, establishes acts of possession which further supports his title to the land.

Learned counsel also argued that the fact that the Appellant has been in possession of the land from 2009, by virtue of the building erected thereon and farming activities carried out on the land, placed a duty on the Respondent to prove that the Appellant is not the owner of the land by virtue of Section 143 of the Evidence Act, a duty which the Respondent failed to discharge.

Counsel posited that even if the original owner of the land actually gifted the land to Gidado as alleged, the manner in which the transaction was concluded only transferred at best an equitable right which cannot prevail over the Appellant’s legal right and the undue delay on the Respondent’s part while the Appellant was in possession of the land meant the Respondent has been caught up by the legal principles of laches and acquiescence.
He referred to the cases of Kano v. Maikaji (2013) All FWLR Pt 674 ratio 13 and Balogun v. Adunni (2013) All FWLR Pt 666 page 539 ratio 4.

On the other hand, learned counsel for the Respondent argued that the Respondent proved her entitlement to the land in dispute based on the uncontroverted testimony of four witnesses, including the original owner of the land himself, Kabiru Lamdo Hadeja as PW1, which testimonies painted a very clear picture of how the land passed from Kabiru to Lawan Mohammed Gidado as payment for survey, who in turn sold to Zuntua John, who sold to the Respondent. He also argued that the documentary evidence of the Respondent at trial, that is sale agreement, customary certificate of occupancy, fencing permit from the Adamawa State Urban Planning & Development Authority and cash receipt evidencing payment for the fencing permit. He asserted that the Respondent took possession of the land after the sale transaction by fixing corner beacons and subsequently fencing the property after obtaining fencing permit from the Adamawa State Urban Planning and Development Authority, Yola; and that the Respondent had resisted the attempts by one Police Officer in 2010 to claim the land, a matter which was settled before the ward head of Bachure where the land is situate.
He relied on Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 151, Ngene v. Igbo (2000) 2 SCNJ 136, Ezeanah v. Attah (2004) 7 NWLR (Pt.873) 468, 501 and Godpower Orlu v. Chief Godwin Onyeka (2007) All FWLR.

Counsel posited that the evidence of the Appellant at trial was not sufficient to entitle him to a declaration of title over the disputed land, and his testimony was riddled with contradictions which made them unreliable, such as the DW1 who had claimed to have witnessed the transaction in his evidence in chief, turned around to state on cross-examination that he did not see Kabiru at the time of the transaction.
He referred to the case of Okhuarobo v. Aigbe (2002) 3 SCNJ 111.

Counsel submitted that the documentary evidence of the Appellant at trial, Exhibits D and D1 is not genuine, not valid, not registered with any authority, which on the authority of Orianzi v. AG Rivers State (2017) 6 NWLR at 283 paras D-F renders same invalid, not executed nor granted by Kabiru Lamdo Hadeja in respect of the land in dispute who lacked capacity to make such grant at the time the purported sale took place because Kabiru had prior to that time divested himself of his interest in the land and the witnesses to the purported sale did not witness the transaction as the date they signed, that is 28th and 29th May, 2009, predated the signature of Kabiru, who allegedly signed on 30th May, 2009, a signature which was irregular, as Kabiru signed as Ward Head, even though he was not the Ward’s Head. He also submitted that the failure of the Appellant to call Kabiru as a Witness or join him as a party was fatal to the Appellant’s case, as the failure made it impossible to link the said Exhibits D and D1 to the original owner.
He referred to the case of Odi v. Iyala (2004) SCNJ 35 at 54.

Counsel in response to Appellant’s submissions asserted that the Respondent took possession of the land by building corner beacons, visiting the land from time to time and building a fence on the land. He posited that the adoption of the statement on oath by Kabiru Lamdo Hadeja means the contents of said statement becomes his evidence in chief, which may be relied on by the Court despite certain irregularities in line with the authority of Udeagha v. Omegara (2010) 11 NWLR (Pt1204) P. 30 at P.168, and that illiterate jurat only protects the Illiterate where he complains, which Kabiru did not do at trial. Counsel submitted that the issue of laches and acquiescence was wrongly raised by the Appellant as same was not specifically pleaded as required by law, and that even if properly raised would not succeed as the Respondent timeously reacted to the Appellant’s trespass by instituting an action for criminal trespass in 2013, the same year the cause of action arose.
He referred to the case of Isaac v. Imasuen (2016) All FWLR (Pt823) at 1896 Ratio 3.

RESOLUTION OF ISSUE ONE
It is settled beyond contention that a party who is claiming ownership of land or real property must adduce cogent and credible evidence to show how he is entitled to such land. In other words, he must satisfy the Court how he got title to the land or property in question and that such root of title is valid in law.

The Supreme Court in the case of DAKOLO & ORS v. REWANE-DAKOLO & ORS (2011) LPELR-915(SC) per RHODES-VIVOUR, J.S.C. (Pp. 23-24, paras. F-D) reiterated the five methods by which a Plaintiff may prove his entitlement to declaration of title to land thus:
“There are five ways in which ownership/title to land may be proved. They are: 1. Proof of traditional evidence; 2. Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilising the land beneficially such acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he is the true owner; 3. Proof by production of document of title which must be authenticated; 4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done; 5. Proof of possession of connected or adjacent land, circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute, may rank also as means of proving ownership of the land in dispute. See Amajideogu v Ononaku (1988) 2 NWLR Pt.78 p.616,Piaro v Tenalo 1976 12 SC P.31, Idundun v. Okumagba (1976) 9 – 10 SC P. 224, Omoregie v. Idugiemwanye (1985) 2 NWLR Pt.5 P. 41.”
See BAYO & ANOR v. SULYMAN & ORS (2019) LPELR-47380(CA), EKEZIE & ORS v. TASIE & ORS (2019) LPELR-46451(CA) and YAHAYA v. Haruna (2019) LPELR-47706(CA).

It is trite law that production of title documents is one of the methods of proving title to land. It is also clear that both parties at trial relied on production of title documents in proof of their claim.
In the case of Oyeneyin v Akinkugbe [2010] 4 NWLR (Pt.1184), the Supreme Court stated the position of the law on how to establish title to land based on title document thus:
‘’Mere production of a valid instrument of grant does not necessarily carry with it an automatic grant of the relief of declaration. The production of an instrument of title carries with it the need for the Court to look into a number of questions including –
a. whether the document is genuine and valid;
b. whether it has been duly executed, stamped and registered;
c. whether the grantor had the authority and capacity to make the grant.’’
From the above, it is clear that mere presentation of title documents is not enough to establish title to land, but the law obligates the party presenting the documents to ensure that it fully complies with the requirements of law as to genuineness, due execution, registration and capacity on the part of the Vendor/Grantor, to establish its validity.
See Jolasun v Bamgoye [2010] 44 NSCQR 94 (SC) and Ahmed v. Ahmed & Ors (2018) LPELR-44710(CA).

There is no gainsaying the fact that on the part of the Respondent, she had a valid document of sale and a customary certificate of occupancy over the said land. She also went ahead to call the person, whom both parties and all witnesses agreed was the original owner of the land, who gave testimony which agrees with the Respondent’s version of events, which is that title to the land in dispute was transferred to Lawan Mohammed Gidado, by the original owner of the land: Kabiru Lamdo Hadeja, the consideration for said transfer being survey services rendered to the original owner, a practice which is not strange in our polity. The said Lawan then transferred ownership of the land to Zuntua John, who subsequently sold to the Respondent. On the Appellant’s part however, the document of title he is relying on has certain issues with execution and witnessing, as the original owner who purportedly sold to the Appellant signed as Village Head, a position which he didn’t hold. More damaging to the Appellant`s case is the fact that the document of title, though registrable, was not registered, with the implication that the document is not admissible to prove title. See Abdullahi v Adetutu (2019) LPELR-47384 (SC), (Pp 20, Paras A-C), Obienu v. Okeke [2006] 16 NWLR (pt. 1005) 225 and Monkom v. Odili (2010) 2 NWLR (pt. 1179) 419.

The issue of illiterate jurat as pertains to the testimony of Kabiru Lamdo Hadeja the original owner of the land in dispute, will not avail the Appellant, because as rightly argued by Respondent’s counsel, once the statement of oath is adopted, it becomes the sworn oral testimony of the Witness who adopted same. It is also correct to assert as done by the Respondent herein that it is only Kabiru Lamdo Hadeja for whose protection, the Illiterate Protection law made the provision for illiterate jurat, who can complain about non-compliance, especially in light of the fact that the purpose of illiterate jurat is to ensure Illiterates are not taken undue advantage of.
See Alhaji Modu Musa & Anor v. Kaka Gana (Trader) (2021) LPELR-55156(CA).

Appellant’s submissions on possession are not very helpful to his case, because acts of possession over land over which valid title resides in another only helps to show trespass to said land.

On the whole, the judgment of the lower Court stems from a proper application of relevant principles of law to the facts of the case before it. Thus, this issue is resolved in favour of the Respondent.

ISSUE TWO:
WHETHER THE TRIAL COURT JUDGE WAS NOT IN ERROR TO HAVE ASSIGNED THIS MATTER TO HIMSELF, ASSUMED JURISDICTION, HEAR AND DETERMINE SAME WHEN THERE WAS SERIOUS PROTEST FROM THE DEFENDANT REGARDING THE FILING, ASSIGNMENT AND HEARING OF THIS MATTER BY VACATION JUDGE HAVING FALL OUTSIDE THE PURVIEW OF CASES THAT SHOULD BE HEARD DURING VACATION. (GROUND 2)

Learned counsel for the Appellant submitted that the duty of a vacation Judge does not include the hearing of a fresh case that is not expedient to deal with; that there was nothing placed before the trial Court to justify the hearing of the matter which gave rise to this appeal during vacation, as the affidavit of urgency attached to the application for the matter to be so heard, did not contain any facts showing the need for the matter to be so heard and that the lower Court to have declined jurisdiction and transferred the case to the Chief Judge on the Appellant’s application to that effect.
He referred to the case of Okubre v. Ibanga (1990) 6 NWLR Pt 154 Ratio 13.

On the other hand, learned counsel for the Respondent submitted that the trial Court was right when it assumed jurisdiction and heard the case at trial having regard to the affidavit of urgency placed before it by the Respondent, the determination of which is the discretion of the learned trial Judge and not based on the opinion of counsel.
He relied on Order 8 Rule 5(1) & (2) of the Adamawa State High Court Civil Procedure Rules 2013 and CCB (Nig) Plc v. Okpala (1997) 3 NWLR (Pt.518) 677

RESOLUTION OF ISSUE TWO
The procedure which the Appellant is complaining of under this issue, that is the hearing of a matter during vacation upon an affidavit of urgency is governed by the rules of the lower Court in Order 8 thereof. For purposes of clarity, the whole of Order 8 Rules 3, 4 and 5 of the Adamawa State High Court Civil Procedure Rules 2013 under which the matter was heard is herein reproduced thus:
‘’3. The several offices of the Court shall be open at such times as the Chief Judge shall direct.
4. (1) The sitting of the Court for the dispatch of causes shall be held on every week-day except that the Court shall not sit:
(a) on any public holiday;
(b) during the week beginning with Easter Monday;
(c) during the period beginning on Christmas Eve and ending on 2nd January next following.
(2) There shall be an annual vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may by notification in the Gazette appoint.
5. (1) Notwithstanding the provisions of Rule 4, any action may be heard by a Judge in Court during any of the periods mentioned in Sub-rule (1) (b) or (c) of Rule 4 or Sub-rule (2) where the action is urgent.
(2) An application for an urgent hearing shall be made by motion ex-parte and the decision of the judge on the application shall be final.’’
From the above, it is clear that the learned trial Judge was well within his jurisdiction to hear the matter during vacation upon the affidavit of urgency filed by the Respondent. Whether or not to hear the matter is clearly a matter for the trial Court’s discretion and as the Appellant has not furnished any cogent reason why this Court ought to interfere with such exercise of discretion, then the decision must remain undisturbed in line with the settled position of the law to the effect that a proper exercise of discretion by a trial Court ought not be disturbed by an Appellate Court unless such discretion was not properly exercised and resulted in a miscarriage of justice.
See Nwadiogbu v. Anambra Imo River Basin Devt Authority (2010) SCNJ 212 and Taiwo Kupolati v. MTN Nigeria Communications Limited.
This issue is also resolved in favour of the Respondent.

The implication of the resolution of the two issues against the appellant is that this appeal is devoid of merit and is consequently dismissed. The judgment of the lower Court delivered on 9th September, 2020 in Suit No. ADSY/112/2018 between Ramatu Manasa Daniel V. Amos Mbamu is hereby affirmed.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead judgment of my learned brother, Jamilu Yammama Tukur JCA, where the facts and issues in contention have been set out.

I am in agreement with the reasoning and conclusion therein, and adopt the judgment as mine. I have nothing extra to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have the opportunity of reading the draft judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I agree entirely with his Lordship’s resolution and issues reached therein.

The appeal is dismissed while the judgment of the lower Court is affirmed. I have nothing tangible to add.