MOHAMMED v. ABUBAKAR (2020)

MOHAMMED v. ABUBAKAR

(2020)LCN/14166(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, May 19, 2020

CA/YL/151/19

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

KULCHUMI MOHAMMED APPELANT(S)

And

AUWALU ABUBAKAR RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPELLATE COURT CAN DETERMINE AN APPEAL ON AN INCOMPLETE RECORDS OF APPEAL

It is settled law that an appellate Court would not determine an appeal on an incomplete record. The parties, counsel and the Court are bound by the records of appeal duly compiled and transmitted by the lower Court to the Registry of this Court. See, OSENI VS. BAJULU (2009) 18 NWLR (PT. 1172) 164, OJIOGU VS. OJIOGU (2010) 9 NWLR (PT. 1198) 1, GARUBA VS. OMOKHODION (2011) 15 NWLR (PT. 1269) 145 and UKIRI VS. EFCC (2018) LPELR 43992 (SC) PP. 19 – 26, PARAS. F – B. It is also settled law that the Court is bound and limited to utilize evidence before it in determination of matters before it and cannot examine documents which were not tendered before it in determination of a contentious matter. PER UWA, J.C.A.

RECORDS OF APPEAL

The records of appeal or proceedings are presumed to be the entire record of events that occurred at the Court and it is binding on the parties unless it is successfully challenged or impugned. In this case, for the Respondent to successfully do so, he would have to show that the letter in question was admitted in evidence as an Exhibit and relied upon by the Court but, omitted in the compiled records, which is not the case here. See, AGBAREH & ANOR VS. MIMRA & ORS (2008) LPELR – 43211 (SC) P. 21, PARAS. B – F, SOMMER & ORS VS. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (PT. 219) 548; (1992) 1 SCNJ 73, ALHAJI NUHU VS. ALHAJI OGELE (2003) 18 NWLR (PT. 852) 251 at 272; 12 SCNJ 158 at 172 and UNAMKA VS. ECHIBE & ORS (2018) LPELR – 45483 (CA) PP. 30 – 31, PARAS. E – B. PER UWA, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE PLAINTIFF TO PROVE HIS CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND

In a case of title to land, the burden of proof is on the plaintiff who must prove his case through credible evidence following the principles laid down in the popular case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC, 227; (1976) 1 NMLR 200. The plaintiff must show to wit:
(1) Ownership proved by traditional evidence.
(2) Ownership proved by production of title documents.
(3) Ownership proved by acts of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough to raise the inference that the person is the owner.
(4) Acts of long possession and enjoyment of the land as prima facie evidence of ownership of the land with reference to which such acts are done.
(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. PER UWA, J.C.A.

CONSEQUENCES OF WHERE A PLAINTIFF FAILS TO PROVE HIS ENTITLEMENT TO THE RELIEF SOUGHT BY EVIDENCE

Where the plaintiff fails to prove his entitlement to the relief sought by evidence, his claim must be dismissed and cannot be granted the claim on the basis that the defence is weak. In COL. NICHOLAS AYANRU (RTD.) VS. MANDILAS LTD (2007) LPELR – 670 (SC) P. 17, PARAS. C – D, his lordship Mohammed, JSC (as he then was) on the effect of the failure of a plaintiff to prove his claim for declaration of title held thus:
“…it is for the plaintiff to prove his case and not for the defendant to disprove the plaintiff’s claim. Therefore, where the plaintiff on his own evidence failed to prove his claim for declaration, his claim must be dismissed. See, AGBANA VS. OWA (2004) 13 NWLR (PT. 889) 1 at 17.”
The duty of the defendant is to defend not having counter claimed. The Appellant as defendant at the trial Court denied the claim and clearly stated that she was not the owner of the house and that the owner is at Abuja, page 54 of the printed records of appeal. See, IDUNDUN VS. OKUMAGBA (1976) (supra), ARIJE VS. ARIJE & ORS (2018) LPELR (SC) P. 34, PARAS. B – G, ILIYA & ANOR VS. LAMU & ANOR (2019) LPELR – 47048 (CA) PP. 19 – 20, PARAS. D – B. PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the Adamawa State High Court delivered on 8th April, 2019, which dismissed the appeal of the Appellant and affirmed the decision of the trial Area Court No. 2, Mubi delivered on 9th May, 2017 which conferred title of the disputed house on the Respondent.

The background facts are that the Respondent as plaintiff before the Area Court 2, Mubi (hereafter referred to as the trial Court) sued the Appellant as the defendant claiming title to a house situate at Lokwa Ward, Mubi town in Mubi North Local Government Area of Adamawa State and for an order directing the defendant to vacate the said house.

The claim at the trial Court was as follows:
“I Auwalu Abubakar do hereby lodge my claim of a house which is situated at Lokwa Ward Mubi North Local Government Area which was given to me as a gift by my Aunty since 1st day of August, 2005 and I have my land alienation given to me by the district head of Mubi with Ref No: MUBI/D.H/VOL/67 which they still remaining in the house. I want the defendant to vacate and leave my house for

me.”

The appellant denied the claim contending that the owner of the house was at Abuja. The Respondent did not testify at the trial Court and did not call any witness to testify on his behalf in proof of his claim. It was the contention of the Appellant that the purported alienation letter was not tendered at the trial Court as an Exhibit and was not shown to the appellant to react to. For the reason that the Appellant neither brought the owner of the house to testify nor call any witness, the trial Court proceeded to deliver judgment in favour of the Respondent conferring ownership of the disputed house on the respondent, on the ground that he proved his case since the Appellant failed to produce her documents or witnesses.

Dissatisfied with the said decision of the trial Court, the appellant appealed to the Adamawa State High Court which dismissed the appeal and affirmed the judgment of the Trial Area Court.

Dissatisfied with the decision of the Adamawa State High Court, the appellant appealed to this Court. From the appellant’s two grounds of Appeal, the following two (2) issues were formulated for the determination of the appeal

thus:
1. “Whether the Learned High Court judge was justified in his finding that the plaintiff/respondent proved his claim of title to the disputed house and in thereby dismissing the appeal of the appellant and consequentially affirming the decision of the trial Area Court which conferred title to the disputed house on the plaintiff/respondent when the plaintiff/respondent failed to prove his title to the disputed house as required by law? (Distilled from ground 1 of the grounds of appeal)
2. Whether the decision of the Supreme Court in the case of AGBASI VS. OBI (1998) 2 NWLR (PT. 536) 1 was rightly invoked by the learned High Court judge in his finding that the plaintiff/respondent proved title to the disputed house in the circumstances of this case and in thereby dismissing the appeal of the appellant.” (Distilled from ground 2 of the grounds of appeal)

In response, the learned counsel to the Respondent Hussaini G. Maidawa Esq. raised a preliminary objection in his brief of argument filed on 29/10/19, argued at pages 3 – 8 of the said brief urging us to strike out the appeal for want of jurisdiction for the following

reasons:
1. The appeal is incompetent.
2. The Court lacks jurisdiction to entertain the appeal.

The grounds upon which the application was brought are as follows:
1. The record of the trial Court is incompetent.
2. A vital document forming part of the record of the trial Court is missing.

It was argued that the appeal is incompetent and that the honourable Court lacks the requisite jurisdiction to entertain it because the records of appeal are not complete to vest jurisdiction on this Court. It was submitted that the Respondent claimed the ownership of the land in dispute based on a title document dated 1st August, 2005 with Ref. No: MUB/DH/VOL./67 which was received and relied upon by the trial Court in conferring title to the Respondent pages, 55 – 56 of the records of Court referred to. It was the contention of the learned counsel to the Respondent that the Respondent’s title document is not contained in the compiled and transmitted records of appeal for this Court to examine for proper determination of the appeal. Further, that this Court cannot properly determine the appeal without the title document. It was submitted

that without the title document, the record of appeal is incomplete and therefore robs this Court of jurisdiction to entertain the matter. See, OBIDIGWE VS. THE STATE (2018) LPELR – 44647 (CA) PP. 3 – 15, PARAS. D – A. We were urged to decline jurisdiction to entertain the appeal for the failure of the Appellant to transmit a complete record.

The learned counsel to the Appellant, Roland C. Emem Esq. responded to the preliminary objection in his reply brief filed on 4/11/19, at pages 1 – 5 in opposing the preliminary objection. We were urged to overrule the objection and hear the appeal.

In his response, the learned counsel to the appellant conceded that an appellate Court lacks jurisdiction to hear and determine an appeal on an incomplete record but, submitted that the record of appeal is complete and this Court therefore clothed with jurisdiction to hear and determine the appeal on its merit. It was submitted that apart from where a document was tendered and rejected, documents that are not tendered and admitted in evidence in course of proceedings before a trial Court do not form part of the records of Court and the Court

cannot act on it even if shown to the judge. See,GENERAL SANNI ABACHA & ORS VS. CHIEF GANI FAWEHINMI (2000) 4 SCNJ 400 at PAGE 429, DENNIS IVIENAGBOR VS. HENRY BAZUAYE (1999) 6 SCNJ 235 at PAGE 243 and ALHAJI ONIBUDO & ORS VS. AKIBU & ORS (1982) 7 SC 60 at 62. It was argued that the Court is bound to limit itself to evidence before it and not examine documents which were not tendered before it in writing its judgment in a contentious matter. See, BRIGADIER GENERAL ANYANKPELE VS. THE NIGERIAN ARMY (2000) 13 NWLR (PT. 684) 209. It was submitted that the title document or purported alienation letter dated 1st August, 2005 with Ref. No: MUB/DH/VOL./67 was not tendered before the Court and was not admitted as an Exhibit; therefore it did not form part of the records of proceedings of the trial Court which would bind both parties. See, OTUNBA ADESESAN OGUNTAYO VS. PRINCE FATAI ADELAJA & ORS (2010) 2 WRN 1 at 43; reference was made to the trial Court’s proceedings of 26th April, 2017 at page 54 of the printed records of appeal. It was submitted that the learned counsel to the Respondent was wrong to have argued that the letter of alienation

which ought to have formed part of the records of appeal was missing, when it was not tendered in evidence. It was argued that the fact that the trial court mentioned the alienation letter in its judgment is not evidence that it was tendered. See, GENERAL SANNI ABACHA & ORS VS. CHIEF GANI FAWEHINMI (supra). Further, that the Registrar of the High Court by virtue of Order 8 Rules 1, 2, 3 and 4 of the Court of Appeal Rules, 2016 is to transmit the records of proceedings not to include documents neither tendered nor admitted in evidence. It was argued that the case of OBIDIGWE VS. THE STATE (supra) relied upon by the learned counsel to the Respondent is not applicable to the facts of this case.

It was concluded that the records transmitted to this Court are complete and that no document that ought to be transmitted was omitted.

In arguing the main appeal, the learned counsel to the Appellant adopted his brief of argument filed on 20/9/19 and his reply brief filed on 4/11/19, as his argument in this appeal in urging us to allow the appeal, set aside the decisions of the High Court and the trial Court respectively and dismiss the claim. In arguing his

first issue, it was submitted that in a case for title to land which includes ownership of a house, the burden of proof is on the plaintiff who must succeed on the strength of his case, see VICTOR OSITA OKONKWO VS. GEORGE OKONKWO (1998) 7 SCNJ (246), ALHAJI YINUSA DAODU VS. NNPC (1998) 1 SCNJ 95; IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227, EMMANUEL CHIJIOKE ORLU VS. CHIEF MPAKABOARI GOGO – ABITE (2010) VOL. 181, 193 at 204. It was submitted that the Respondent did not prove his title to the land or that of his aunt who purportedly gave him the house. It was argued that the Respondent not having proved his case by credible evidence, his case ought to have been dismissed. See,MOMODU OLUBODUN & ORS. VS. OBA ADEYEMI LAWAL & ANOR (2008) 6 SCNJ 269 at PP. 290. It was submitted that the respondent who claimed title to the house in dispute neither testified nor called any witness to prove how he got the house from his aunt and how his aunt acquired the house. It was reargued that there was nothing on record to show that the purported alienation letter was tendered and admitted in evidence. Further, that the respondent who failed to prove his case

ought to have had his claim dismissed. See, ANTHONY IDESOH & ANOR VS. PAUL ORDIA & ORS (1997) 2 SCNJ 175. It was stressed that the trial Court ought not to have held that the respondent as plaintiff proved his case without any evidence to back it up. Also, that the High Court ought not to have affirmed the judgment of the trial Court without any evidence in support of the respondent’s case.

In arguing issue two, it was submitted that the Supreme Court in AGBASI VS. OBI (supra) did not shift the burden of proof from the plaintiff; the above decision was distinguished from the present case in that the Apex Court did not decide that a plaintiff who did not call any witness in proof of his title and did not testify before the trial Court should have title conferred on him.

In the alternative, the respondent reacted to the substantive appeal and formulated a sole issue for the determination of the appeal thus:
“Whether from the circumstance of this case and the totality of evidence before the Court, the lower Court was right in affirming the decision of the trial Area Court by granting the Plaintiff/Respondent’s

reliefs.”

In response, the learned counsel to the Respondent adopted his brief of argument filed on 29/10/19 as his argument in this appeal in urging us to dismiss the appeal and affirm the judgment of the trial Court and the High Court. It was argued that in deciding any matter from the decision of an Area Court, the Superior Court should look at the totality of the parties’ cases without strict adherence to procedure. See,AGBASI VS. OBI (1998) 2 NWLR (PT. 536) PG. 1 at 11, PARA.C, 14 PARAS. A – B, 18 PARAS. D – F. It was submitted that the Respondent claimed and established his title to the house by production of a title document while the Appellant who made out that the house belongs to a third party residing in Abuja failed to produce any. See, ONOVO VS. MBA (2014) NWLR (PT. 1427) 391 at 441, PARAS. A – D. It was the contention of the learned counsel to the Respondent that the argument that the title document needed to be marked as an Exhibit at the trial Court is a misconception of the proceedings of an Area Court which is devoid of technicalities but, founded on substantial justice. See, FALEYE & ORS. VS. DADA & ORS

(2016) LPELR – 40297 (SC) PAGES 33 TO 36, PARAS. E – B. It was submitted that the letter of alienation with Reference No: MUB/DH/101/67 was before the Court. It was concluded that the appellant admitted that the land does not belong to her but, failed to produce the owner of the land in dispute. Therefore, that the appellant’s claim cannot defeat that of the Respondent.

In response, as argued in the Appellant’s reply brief filed on 4/11/19, it was submitted that the burden is on a party to prove his case through evidence and not by the address of counsel, see, NATHANIEL OYEKAN & ORS. VS. AMOS AKINRINWA (1996) 40 – 41 LRCN 1387 at 1416, PARA. A. Further, that the judgment of an Area Court must be founded on law, fair hearing and proof of a plaintiff’s claim as required by law but, not in breach of a solemn duty imposed on Courts of law. See, ALHAJI ONIBUDO & ORS. VS. ALHAJI AKIBU & ORS.(1982) 7 SC 60 at 62. It was argued that the judgment of the Area Court is in breach of the Area Courts Civil Procedure Rules, 1971, Order 11 Rules 6 which requires a plaintiff to prove his case through evidence.

Further, that where a defendant denies the claim without a counterclaim as in the present case, the burden of proof on the plaintiff does not shift, it remains on the plaintiff who must succeed on the strength of his case. See, MOMODU OLUBODUN & ORS VS. OBA ADEYEMI LAWAL & ANOR (2008) 6 SCNJ 269 at P. 290 and MAGAJI VS. OGELE (2012) LPELR – 9476 (CA).

Where a preliminary objection has been raised as to the competence of an appeal, it has to be determined first before going to the substantive matter/appeal if need be. A decision has to be taken first on the preliminary objection one way or the other; a successful objection may have the effect of disposing of the appeal. It does not matter whether the objection is frivolous or not. This is so because a party is entitled to know the fate of his application whether properly or improperly brought. See, EFET VS. INEC & ORS. (2011) LPELR – 8109 (SC) P. 8, PARAS. A – C, CONTRACT RESOURCES NIGERIA LTD. VS. STANDARD TRUST BANK LTD. (2013) LPELR – 19934 (SC) P. 5, PARAS. C – E, OKOROCHA VS. UBA BANK & ORS.(2018) LPELR – 45122 (SC) P. 13, PARAS. E – F,

NDP VS. INEC (2013) 6 NWLR (PT. 1350) P. 392, UMANAH VS. NDIC (2016) LPELR – 42556 (SC) P. 5, PARAS. A – C and NUC VS. ALLI & ANOR (2013) LPELR – 21444 (CA) P. 34, PARA. A.

land and house in dispute, ought to have formed part of the records of appeal, absence of which the learned counsel adjudged the records as incomplete. There is nothing on record to show that the alleged title document was tendered and admitted in evidence as an Exhibit at the trial Court. The learned counsel to the Respondent has not argued that the said letter was tendered as an Exhibit but, rather that the letter was shown to the trial Court. The records of proceedings bind the parties, counsel and the Court. If the said document had been tendered, it would have been shown by the Court’s proceedings of the day it was tendered. This Court cannot read into the proceedings what is not there. The record as it is, did not contain the alienation letter relied upon by the trial Court and the High Court. It is erroneous for the learned counsel to have argued that the said letter was omitted in the records of appeal before this Court. The said letter was not part of the trial Court’s records and could not have been compiled for the purpose of the appeals before the High Court and this Court. The records of appeal or proceedings are presumed to be the

entire record of events that occurred at the Court and it is binding on the parties unless it is successfully challenged or impugned. In this case, for the Respondent to successfully do so, he would have to show that the letter in question was admitted in evidence as an Exhibit and relied upon by the Court but, omitted in the compiled records, which is not the case here. See, AGBAREH & ANOR VS. MIMRA & ORS (2008) LPELR – 43211 (SC) P. 21, PARAS. B – F, SOMMER & ORS VS. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (PT. 219) 548; (1992) 1 SCNJ 73, ALHAJI NUHU VS. ALHAJI OGELE (2003) 18 NWLR (PT. 852) 251 at 272; 12 SCNJ 158 at 172 and UNAMKA VS. ECHIBE & ORS (2018) LPELR – 45483 (CA) PP. 30 – 31, PARAS. E – B. There is nothing on the face of the proceedings of the trial Court to show that the alienation letter was tendered and admitted in evidence or shown to the appellant and the contents explained to the Appellant for better understanding. The question that arises at this point is: who tendered the purported letter of alienation? The Respondent did not give evidence before the trial Court and did not call any witness to

testify on his behalf. The learned counsel to the Respondent has not made out that he tendered it from the bar, because he did not. The Appellant had no opportunity of seeing the letter or asking questions on it, I hold that it did not form part of the Court’s record. Holding that the alienation letter was tendered before the trial Court and admitted in evidence would be reading into or inserting into the record of proceeding/appeal what was not there. A document that was not tendered would not form part of the proceedings on which the Court could act on. As rightly submitted by the learned counsel to the Appellant, the Registrar of the High Court and the Appellant were not bound to include documents that were not tendered and admitted in evidence as part of the proceedings of the Court, in carrying out their duty as stipulated under Order 8 Rules 1, 2, 3 and 4 of the Court of Appeal Rules, 2016 in respect of compilation of records. For the above reasons, I hold that the records of appeal/proceedings compiled and transmitted to this Court are complete and the letter of alienation alleged to have been omitted in the records ought not to have formed part

of the records, as it was not tendered at the trial Court. Moreso, where the Respondent did not testify and did not call any witness to testify on his behalf, it could not have formed part of the Court’s records without being tendered by the Respondent or his witness. In GENERAL SANNI ABACHA & ORS VS. CHIEF GANI FAWEHINMI (2000) (supra), the Supreme Court held that a document that “was never tendered and admitted in evidence, it did no form part of the proceedings in this case. Nor was it evidence on which the Court could act.”
Further, the type of evidence the Court can act on is the evidence canvassed in Court. The Court is not permitted to examine documents outside the Court and act on it without any evidence in its support to the knowledge and full participation by the parties. There is nothing on record to show that apart from the Court looking at it that it was shown to the Appellant in course of the proceedings. In sum, I hold that the preliminary objection is without merit, same is hereby dismissed.

On the merits of the appeal, I would adopt the issues as formulated by the Appellant but, would recouch the two issues into

a sole issue thus:
Was the High Court right to have affirmed the decision of the trial Area Court in holding that the Respondent as plaintiff proved his title to the disputed house and dismissed the appeal of the Appellant when the Respondent failed to prove his title to the disputed house considering the circumstances of this case?

that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
The question is: did the Respondent as plaintiff establish his claim for the declaration of title over the land in dispute by proving and relying on one or more of the ways of proving title to land in dispute as enumerated above? All the five ways need not be proved, one method is enough. From the facts of this case, the Respondent’s claim at the trial Court was hinged on: Ownership proved by production of title documents, (2) above. Where the plaintiff fails to prove his entitlement to the relief sought by evidence, his claim must be dismissed and cannot be granted the claim on the basis that the defence is weak. In COL. NICHOLAS AYANRU (RTD.) VS. MANDILAS LTD (2007) LPELR – 670 (SC) P. 17, PARAS. C – D, his lordship Mohammed, JSC (as he then was) on the effect of the failure of a plaintiff to prove his claim for declaration of title held thus:
“…it is for the plaintiff to prove his case and not for the defendant to disprove the plaintiff’s claim. Therefore, where the plaintiff on his own

evidence failed to prove his claim for declaration, his claim must be dismissed. See, AGBANA VS. OWA (2004) 13 NWLR (PT. 889) 1 at 17.”
The duty of the defendant is to defend not having counter claimed. The Appellant as defendant at the trial Court denied the claim and clearly stated that she was not the owner of the house and that the owner is at Abuja, page 54 of the printed records of appeal. See, IDUNDUN VS. OKUMAGBA (1976) (supra), ARIJE VS. ARIJE & ORS (2018) LPELR (SC) P. 34, PARAS. B – G, ILIYA & ANOR VS. LAMU & ANOR (2019) LPELR – 47048 (CA) PP. 19 – 20, PARAS. D – B. It is on record that the Respondent did not testify and did not call any witness to testify on his behalf in proof of his case, one cannot talk of credible evidence as there was no evidence at all, credible or not. On the face of the claim before the trial Court, the house was given to the respondent by his aunt, not named and nothing said about how his aunt acquired the house. From the proceedings of the trial Court of 26th April, 2017, the respondent informed the Court that he had a land Alienation document dated 1/8/2005 with Ref. No.

MUB/DH/VOL.1/67 and nothing more. It was not tendered in evidence and the trial Court did not read and examine the document in open Court, also there is nothing to show that it was shown or explained to the Appellant in open Court for a reaction one way or the other. There was nothing before the trial Court on which basis it conferred title on the Respondent and holding that the Respondent proved his case based on a document that was not tendered and admitted in evidence. There was no basis too for the lower Court to have affirmed same. The duty of the Court is simply to decide the case before it between the parties based on what has been canvassed and argued in Court. The Court cannot rightly examine and utilize a document (not tendered in open Court) outside the Court in the absence of the parties making any input, in writing its judgment in a contentious matter.
Further, the purported letter of alienation not having been tendered in evidence at the trial Court, the lower Court had no power to read into the record what the record did not contain. The appellant’s appeal to the lower Court ought to have been determined utilizing the records as they

were. The burden was on the Respondent to have proved his title to the house at the trial Court; where the burden is not discharged, the weakness of the defence if at all will not avail him, the proper judgment would be in favour of the defendant while the claim of the plaintiff ought to be dismissed. The decision of the trial Court affirmed by the lower Court was not justified.
The trial Court gave judgment in favour of the Respondent because the appellant failed to produce a witness or any document in respect of the house. From the Court’s observation, the Court held that the Respondent had proved his case. It was not the Appellant’s duty to produce documents of title or call witnesses to prove the Respondent’s case. The Appellant’s duty was to defend and nothing more. The trial Court also erroneously relied on the alienation letter that was not tendered as an Exhibit before the Court. The lower Court in the same error, without any evidence in support of the claim (oral or documentary) affirmed the decision of the trial Area Court that held that the Respondent proved his claim, he did not. At page 110 of the printed records of

appeal, the lower Court held thus:
“I have observed that this appeal is hinged on form and not substance of proceedings of the trial Court. The appellant is complaining that the title document was not formally tendered by the Respondent or formally admitted by the trial Court and that the evidence of Respondent/Plaintiff was not formally taken. All these relate to form and not substance.”
I am of the firm but, humble view that what transpired at the trial Area Court which led to the appeal to the lower Court and this Court is not a challenge of the form or procedure at the trial but, lack of evidence on the part of the Respondent as plaintiff claiming title to the house in dispute. From the above, the lower Court acknowledged the fact that the title document the Respondent relied upon was not tendered and admitted in evidence at the trial Area Court (whether formally or otherwise) and that the Respondent did not testify and did not call any witness to testify on his behalf (formally or not). There was no evidence of any type from the Respondent in proof of his claim at the trial Area Court. The view of the lower Court that the challenge

of the decision was based on form is erroneous. No doubt Area Courts are Courts of substantial justice, not bound by technicalities of the law but, substantial justice must be founded on the law, fair hearing and proof of the plaintiff’s claim as required by law not, justice in breach of the judicial duty imposed on the Courts of law to admit evidence on both sides, weigh it on the imaginary scale before arriving at its decision, depending on which side the scale tilts. Where there is no evidence at all adduced by a party, the plaintiff in this case, he is not entitled to the declaration of the title sought. The plaintiff succeeds on the strength of his case moreso, the appellant did not admit the claim and did not counter claim.
Further, at page 111 of the printed records of appeal, the lower Court in respect of the purported alienation letter held thus:
“The fact that Respondent/Plaintiff at trial Court tendered his title document in respect of the land and told the Court how he came about the house and the fact that Appellant/Defendant could not produce the person she claim own the house despite several opportunities given, all goes to

prove that Respondent/Defendant has proved title over the house.”
The above conclusion by the lower Court is erroneous and not borne out of the records.
Firstly, the Respondent did not tender any title document at the trial Area Court and did not tell the Court how he came about the house, apart from the Respondent’s claim, there was nothing else presented before the Court to support his claim. Further, the fact that the Appellant failed to call the person that owns the house cannot be rightly said to be proof of the Respondent’s title to the house in dispute.
I hold that the Respondent failed to prove his title to the house in dispute at the trial Area Court and the decision of the trial Court ought not to have been affirmed by the lower Court, there was no basis to have determined the appeal before the High Court in favour of the Respondent.

In sum, the appeal is meritorious, I allow same. The decision of the Adamawa State High Court in its appellate jurisdiction of 8th April, 2019 in suit No. ADSY/64M/2018 delivered by Nathan Musa, J. is hereby set aside. The claim of the Respondent at the Adamawa State Area Court No.

II, Mubi is hereby dismissed.
I award costs of N100,000.00 (One Hundred Thousand Naira) to the Appellant.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft, the judgment delivered by my learned brother Chidi Nwaoma Uwa JCA.

I agree entirely with my learned brother that the appeal has merit. Chambers Dictionary AZ defines palm – tree justice as justice without litigation and legal process. No stratum of our Court system is permitted to resolve dispute without following legal process as was done in this matter. The trial Court erred when it relied on a document not tendered before it in evidence to enter judgment in favour of the Respondent who led no scintilla of evidence in support of his claim to the house. What the trial Court did was tantamount to rendering palm – tree justice.

The Court below ought not have upheld the judgment of the trial Court based on no evidence adduced before it.

For the reasons contained in the very elaborate judgment of my learned brother, I too allow the appeal. I also set aside the judgment of the Court below which upheld the judgment of the trial Court. The

claim of the Respondent at the trial Court is hereby dismissed.
I abide by all other orders contained in the lead judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Roland C. Emem, Esq. For Appellant(s)

Hussaini G. Maidawa, Esq., with him, H. Omeh, Esq. For Respondent(s)