MR. SHITTU GWANI v. FRANCIS ONYILOLA & ORS (2013)

MR. SHITTU GWANI v. FRANCIS ONYILOLA & ORS

(2013)LCN/6451(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of August, 2013

CA/K/160/2007

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI -ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

MR. SHITTU GWANI Appellant(s)

AND

1. FRANCIS ONYILOLA
2. SHEHU OLUGBEJA
3. SULE OLUGBEJA
4. MOHAMMED OLUGBEJA
5. FIDELIS FREEMAN Respondent(s)

RATIO

THE DUTY OF A CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is trite that the duty of the claimant for a declaration of title to the disputed land is to prove the identity of the land in a definite and unequivocal manner that a surveyor who listens can draw a comprehensive plan for the land.
In this case, there is no description of the features and the location of the land in question. All that the appellant did was to tender Exhibits 1 and 2 and those exhibits are contradictory in the sense that one is 100 x 100ft and the other is 100 x 200ft. Therefore these contradictions have to be explained either in the pleadings or by calling a person to testify. The Exhibit 1 is the evidence of payment to the property which was sold for N250,000.00 while Exhibit 2 is the copy of the certificate of occupancy without the site plan annexed to it. There is therefore no way the trial court could ascertain the exact measurement of the plot claimed – See the case of Kyari vs. AlkaJi (2001) 5 SCNJ 421 at 440. PER ADAMU, J.C.A.

WHETHER OR NOT PARTIES CONTESTING OWNERSHIP OF LAND MUST ESTABLISH A BETTER TITLE TO TAKE IT

The law is trite that where the parties are contesting the ownership of land, and especially where each claim root of title from the same source, then the party that can establish better title will take it. See the case of SUU VS. JOBAK NIG LTD (2012) 49 WRN 52; ABDULLAHI ALI VS. GODDY UGWU (2012) ALL FWLR (Pt. 619) 1078; OKELOLA VS. ADELEKE (2004) 13 NWLR (Pt.890) 307; SHUKKA VS. ABUBAKAR (2012) 4 NWLR – (Pt.1291) 497.
See also the case of MADAM ALI WAZIRIN GWANTU VS. ISIYAKU SARKIN YAKI AND 2 ORS: CA/K/12/2007, (an unreported decision of this Court, delivered on 3/7/2013), where it was held.
“Thus, the right of possession of an Appellant and his right/power to sue for trespass exists as long as the true owner or one with better title fails to emerge. Put differently, the right and power of one in possession to sue for trespass fails to exist against the owner of a property or one who can prove better title to the property.” PER MBABAA, J.C.A.

METHOD OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

Under issue No.3, the settled principle of what the claimant of declaration of title is expected is stated. He is to bring to the Court cogent evidence which must tilt the imaginary scale in his favour – See Mogaji vs. Odofin (1978) 4 SC 91 and Onowama vs. Ezeokoli (2002) 9 NSCQR p.233 at 244 referred to in the appellants brief. It is further submitted that there are five methods by which ownership of land may be proved by a claimant. These are as follows:
(a) By traditional evidence.
(b) By production of document of title which must be duly authenticated.
(c) By the exercise of numerous and positive acts of ownership over sufficient length of time to warrant the inference that the person is a true owner of the land.
(d) By act of long possession and enjoyment of land: and
(e) 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.
-See Idundun vs. Okumagba (1976) NSCL P.445; Kyari vs. Alkali (2001) 6 NSCQR 819 at 845 – 846. The plaintiff does not need to prove all the five methods for him to succeed in an action for title. See Ojoh vs. Kamulu (2005) 12 SCNJ page 236 at 261 – 262. PER ADAMU, J.C.A.

DALHATU ADAMU, J.C.A. CFR (Delivering the Leading Judgment): This is an appeal against the judgment of J.S. Abiriyi J. (as he then was) of Kaduna State High Court on 16th day of June, 2005 in which he dismissed the appellant’s claims. The plaintiff who is now the appellant was dissatisfied with the judgment and he is appealing to this court. From his amended notice of appeal filed on 8/1/2013 pursuant to the order of this Court made on 2/11/2009, the appellant filed 9 grounds of appeal.

The parties have filed briefs of arguments as required by the rules of this Court. The appellants amended brief of arguments was filed on 8/01/2013 pursuant to the Order of this Court made on 2/11/2009. The 1st respondent brief was filed on 8/02/2013 while the brief of 2nd – 5th respondents was filed on 29/10/2012 – within time. From the appellants amended brief six (6) issues were formulated and related to the grounds of appeal in paragraph 3.02. They are:-
“(1) Whether or not the learned trial judge properly evaluated the case of the plaintiff by holding that exhibits 1 and 2 contradict themselves.

(2) Whether or not the plaintiff needs to plead evidence to establish his claim.

(3) Whether or not the plaintiff gave a credible evidence to establish his title to the property.

(4) Whether or not the 1st defendant from the circumstances of this case has proved titled to the disputed property to have warranted the trial judge to have given him title to the said property.

(5) Whether the award of special and general damages in this case to the 1st defendant is sustainable when the 1st defendant did not lead any credible evidence in proof of same.

(6) Whether or not it was proper for the learned trial judge to have conducted parts of the proceedings or trial of this case in chambers. ”

In the 1st respondents brief of arguments the above issues formulated by the appellant were adopted. The 2nd – 5th respondents who made a preliminary objection merely formulated the following four (4) issues at page 5 of their brief:
“4.1. Whether the learned trial judge properly evaluated the evidence led by the appellant in proof of his case and made correct findings of facts before dismissing his claims (Grounds 1, 2 and 3).

4.2. Whether the evidence given by the defence witnesses deserves credibility and worthy of belief so as to lend weight to and support the declaration of title of the disputed plot of land in favour of the 1st Respondent (Grounds 4, 5 & 6) against the appellant.

4.3. Whether the special and general damages awarded to the 1st Respondent herein are sustainable on the basis of the pleadings and the evidence adduced in support. (Ground 7).
4.4. Issue No.6 as formulated by the Appellant is hereby adopted by the 2nd – 5th Respondents as their issue No.4 (Ground 8).

At the hearing of the appeal, the notice of preliminary objection was expressly withdrawn by the learned counsel to the 2nd – 5th respondents. Thus there is no longer any preliminary objection to the grounds of appeal.

On the 1st issue formulated by the appellant, the appellant submitted that Exhibits 1 and 2 do not in any way contradict themselves. The assertion to that effect by the learned trial judge at page 137 is not borne out of the record of proceedings. This shows that the learned judge did not properly evaluate the case of the plaintiff and consequently gave a wrong finding to Exhibit 1 and 2. It is submitted that where a trial court fails to perform its function of assessing the evidence, evaluating it and ascribing probative value thereto he cannot be said to have discharged his judicial function properly and the result will lead to a miscarriage of justice. Any judgment that involves such an exercise will be vitiated on appeal. Reliance is placed on the cases of G.T. E. Sagay vs. E.I. Sajere & 2 Ors. (2001) FWLR (Pt.7) 1111 at 1122; U.B.A. PLC vs. Tsokwa Motors Nig. Ltd. (2000) FWLR (Pt.22) 1057 at 1101 and Olusola Fatunbi vs. Ebenezer Olanloye & 3 Ors. (2004) 40 WRN 133 at 148. It is further submitted in the brief that there are no facts on the record to support that finding but it is based on the rubicon of “I believe” and “I do not believe”. Reference is made to the cases of High Grade Maritime Services Ltd. Vs. FBN Ltd. (1991) NWLR (Pt.107) 290 at 310; ACB Ltd. Vs. Oba (1993) 7 NWLR (Pt.304) 173 at 184 and Bosin vs. State (1985) 2 NWLR (Pt.8) 465 at 473. It is submitted that where a judge misconceives or misconstrues the cases of the parties before him he cannot arrive at a just decision on the real issues submitted to him for adjudication. Having given a wrong finding to exhibits 1 and 2 it was logical that his eventual conclusion would be erroneous. Reliance is made to the unreported decision of this Court in the case of Jimoh Akanni Oyewale vs. Suberu Agboola Oyesoro in case No. CA/K/55/93 delivered on 5/10/1994 Per Umaru Abdullahi JCA (as he then was). It is finally prayed to resolve Issue No.1 in favour of the Appellant and to allow the grounds of appeal on which the issue was formulated.

In the 1st respondents brief of argument it was argued that exhibit 1 is the deed of assignment between the plaintiff and Mathew Ishaya Freeman dated 13/12/2000 and was a registrable document which was never registered. Exhibit 2 was only a photocopy of the certificate of occupancy. It is submitted that under paragraph 5 of the statement of claim the fact of tendering a photocopy the whereabout of the original and the facts that it covers only a part of the plot were not pleaded. It is stated that these facts go to no issue as they were not pleaded. They should be expunged from the record. See the case of Braimoh vs. Esa (1990) 4 SCNJ 1 at 67 and Ogunsina vs. Matanmi (2001) 4 SCNJ 89 at 97 where the same view was expressed by the Supreme Court. Both the records containing the statement of claim and the reply to the 1st respondents amended statement of defence and counter-claim there is no pleading that the plaintiff bought only part of the property in dispute.

In a joint statement, of defence the 2nd – 5th, 6th defendants at paragraph 4 page 26 of the record show that Ishaya Freeman sold to Alhaji Olugbeja…. His plot of land measuring 250 x 250ft. It is submitted that the sale transaction between Alhaji L.A. Olugbeja and Ishaya Freeman was evidenced in writing in a document headed “to whom it may concern” DW4 Bashir Abdullahi was a witness to the transaction which took place in 1982 and was a signatory to Exhibit 3 at page 104 of the record. It is submitted that on the face of Exhibit 1 stating that the claim was for land measuring 100 x l00ft and Exhibit 2 showing that the land covered 100ft x 200ft, there was no way the trial court could ascertain the exact measurement of the plot claimed in view of the obvious contradiction. Exhibit 2 has no site plan or sketch map annexed to it. It is submitted that there could not be more contradiction than that. It is submitted that for the plaintiff to succeed in a case for declaration of title he is required to prove with absolute precision and certainty the property which he claims to have title for. See the Supreme Court in Kyari vs. Alkali (2001) 5 SCNJ 421 at 440. We are finally urged to resolve this 1st issue in favour of the respondents.
In the 2nd – 5th respondents brief the argument on issue 1 is at page 5 – 9 of their brief. We are called to evaluate the Exhibits 1 and 2 to determine their probative value in conjunction with the entire evidence which the appellant led in support of his claims. The disputed plot of land of the Appellant formed part of the plot of land measuring 250 x 250ft earlier sold by the same vendor Ishaya Machau Freeman to Alhaji L.A. Olugbeja from whom the 2nd – 5th respondents derive their title by inheritance – see paragraph 4 and 5 of the statement of claim at page 3 of the record and paragraphs 3, 4, 5, 6 and 7 of the statement of defence of the 2nd – 5th respondents. The appellant in line with the pleadings gave evidence to the effect that he bought the disputed property on 13/12/2000 for N250,000.00 and tendered Exhibit I as the evidence of payment which exhibit cannot pass title to him in respect of the disputed plot. On the other hand Shehu Olugbeja gave evidence to the effect that Mathew Ishaya Freeman sold the land at Barnawa New Extension to his father Alhaji L.A. Olugbeja and in support of the purchase he tendered a document dated 17/1/1982 signed by both his deceased father and Mathew Ishaya Freeman. DW2 Fidelis Ishaya Freeman the son of late Mathew Ishaya Freeman testified that both his deceased father and mother informed him that the disputed land belonged to Alhaji L.A. Olugbeja who bought it from his late father see page 99 to 100 of the record. The evidence of DW2 was corroborated by DW3 Mrs. Ann Ishaya Freeman.
It is submitted that Alhaji L.A. Olugbeja was the 1st purchaser of the disputed plot. He bought it in 1982. It is submitted that the learned trial judge dispassionately evaluated the facts before him at page 140 and therefore made finding which were clearly borne out of the evidence – See the case of Chief Joseph Abraham & Anor. Vs. Ishau Amusa Olorunfumi (1991) 1 NWLR (Pt.165) 53 at 79. Where there are contending parties to a disputed land trying to derive title or interest from the same person such as in the instant case the issue should be resolved by finding out who as between the plaintiff and the defendant has a better title – See Lion Building Ltd. Vs. Shodipe (1976) 12 SC 13 at 154 – 155; and Bello vs. Eweka (1981) 1 SC 101 at 122 and 120.

It was respectfully submitted that it was Alhaji L.A. Olugbeja as held by the trial judge who has a better title to the disputed land. It is further supported by Exhibit 3 and the evidence of DW4 Bashiru Abdullahi at page 104 – 105 of the record. DW3 also at P.104 corroborated the evidence of DW4. These pieces of evidence were property assessed, evaluated and weighed against that of the appellant before the learned trial judge dismissed the appellant’s case. As at 13/12/2000 Ishaya Freeman had nothing in respect of the disputed land which he purportedly grants to the appellant. See Romaine vs. Romaine (1992) 9 SCNJ 25 at 36: Olowoake vs. SaIawu (2000) 11 NWLR (Pt.677) 127 at 146; Folarin vs. Durojaiye (1988) 1 NWLR (Pt.70) 351.

We are urged to uphold the finding of the learned trial judge and to hold that he properly assessed and evaluated the evidence adduced by both parties and he has put the same on an imaginary scale and thereafter preferred the evidence of the defence to that of the appellant. The success of this type of case depends on the strength of plaintiff’s case and not on the weakness of the defence – Kodelinye vs. Mbanefo Udu (2 WACA 336 at 277; Akinlola vs. Oluva (1962) WNLR 134 at 135; Aishat Aliyu vs. E.A. Adewuyi & 4 Ors. (1996) 4 NWLR (Pt.442) 248 at 291.

To resolve this issue is simple that is to see what is the duty of the appellant as a claimant for the declaration of title to the land.
It is trite that the duty of the claimant for a declaration of title to the disputed land is to prove the identity of the land in a definite and unequivocal manner that a surveyor who listens can draw a comprehensive plan for the land.
In this case, there is no description of the features and the location of the land in question. All that the appellant did was to tender Exhibits 1 and 2 and those exhibits are contradictory in the sense that one is 100 x 100ft and the other is 100 x 200ft. Therefore these contradictions have to be explained either in the pleadings or by calling a person to testify. The Exhibit 1 is the evidence of payment to the property which was sold for N250,000.00 while Exhibit 2 is the copy of the certificate of occupancy without the site plan annexed to it. There is therefore no way the trial court could ascertain the exact measurement of the plot claimed – See the case of Kyari vs. AlkaJi (2001) 5 SCNJ 421 at 440.
The other issue just crept up from the brief is that Alhaji Olugbeja the deceased father of the 2nd -5th respondents was the person who bought the land first in 1982 while the appellant bought it from the same vendor in 2000. Therefore the Alhaji (i.e. the late father of 2nd – 5th respondents) have a better title to the property. As at 13/12/2000 the vendor Ishaya Freeman has no title to the property which he had transferred to the Alhaji since 17/1/1982. Therefore there is no doubt that the decision that Alhaji L.A. Olugbeja had a better title to the property. Therefore the finding of fact and evaluation of evidence and ascribing probative value thereto which are the primary functions of a trial court would not be interfered with unless there is an allegation of perversity. Since there is no allegation of perversity, in this case I do not wish to interfere with the finding and evaluation. In any case the 2nd – 5th respondents have stated in their brief that the learned trial judge has evaluated and properly assessed the evidence adduced by both parties and he has put the same on an imaginary scale and thereafter preferred the evidence of the defence to that of the appellant. Kodilinye vs. Mbanefo Odu (2 WACA) 336, Akinola vs. Oladewa (1962) WNLR 134 at 133. Aishat Aliyu vs. Adewuyi & 4 others (1996) 4 NWLR (Pt.442) 248 at 291.
In the final analysis of this 1st issue, I resolve it against the appellant. The ground of appeal on which the issue was formulated is dismissed.

The 2nd issue is whether or not the plaintiff needs to plead evidence to establish his claim. I will take this along with issue No.3 which is whether or not the plaintiff gave a credible evidence to establish his title to the property.

Under issue No.2 the appellant in his brief after stating the supporting facts submitted that a pleader is mandatorily obligated to state material facts upon which he rely for the success of his case. Under Order 24 rule 4 of the Kaduna State High Court (Civil Procedure) Ru1es 1987. It is submitted that the appellant herein has succinctly and precisely pleaded material facts in paragraphs 3, 4 and 17 upon which Exhibit 2 was admitted in evidence. It is submitted again that the plaintiff called PW3 a land officer from Chikun Local Government Kaduna State to prove the authenticity of Exhibit 2 which was done by PW3 in his evidence at page 93 of the record.
It is humbly submitted that the plaintiff need not plead and tender official file before the learned trial judge could ascribe a probative value to the Exhibit 2 and believe the evidence of PW3. The holding of the learned trial judge at page 137 of the record that the file from the Local Government was not pleaded and tendered in evidence is with utmost respect perverse.

It is submitted that it is sufficient for the pleader to plead sufficient facts in relation to the documents he seeks to rely upon. The cases of Chike Orjiekwe & 1 Or vs. Samuel Orjiekwe & 1 Or. (2001) FWLR (Part 33) 1181 – 1197: M.SC Ezemba vs. S.O. Ibeneme (2004) WRN P.1 at 24. We are urged to allow the grounds of appeal on which issue No.2 was formulated.

DW3 under cross examination admitted that it was possible for the land to be sold to another person because that was the vendor’s character. With the above admission, the trial Judge ought to have given the title to the land in dispute to the plaintiff/appellant. In view of the totality of the pleadings and evidence adduced and the document tendered at the trial the appellant has proved his case by the preponderance of evidence. The appellant has put forward a strong and credible case through Exhibits 1 and 2 that the appellant has an unimpeachable ownership of the property in issue. We are urged to resolve the issue 3 in favour of the appellant and allow the ground of appeal on which the issue was formulated.
In the 1st respondents brief, the arguments concerning the 2nd issue of the appellant is at page 8 and it covers only one page. The respondent submits that the evidence given by PW3 was to throw more light on Exhibit 2. The fact that there existed such a file was never pleaded. Thus there was no relationship between the certificate of occupancy and the file. Consequently the trial court was correct in stating that the file was not pleaded nor tendered. See Akande vs. Alfa (1988) 7 SCNJ 279 at 289 and Lawal vs. G.B Ollivant (1972) SCNJ 124. It is submitted that the file would have thrown more light on the origins of the property and details as regards to measurements location and the boundaries as well as ownership.

Since the defendants/respondents are challenging the title of the plaintiff it behoves on the plaintiff to do more than just tendering Exhibit 2 which was based on nothing – Romaine vs. Romaine (1992) 5 SCNJ 26 at 36. Finally the 1st respondents brief urges us to dismiss the appellants appeal on this issue.

Under the 3rd issue in the 1st respondents brief it is submitted that under S.135 of the Evidence Act, 1990, the burden of proof placed on the claimant never shifts. Going by the appellant’s reliance on Exhibits 1 and 2, that heavy burden of proving that Exhibits 1 and 2 were valid was never discharged. The issue of credibility is strictly an issue in the Court of trial who could see and hear the witness. In the case of Ihenacho vs. Chigere (2004) 7 SCNJ 272. That has been stated. The 1st wife of the appellants vendor DW3 stated concerning her husband that:
“It is possible that he could sell this place to another person. That was his character.”

It submitted on the authority of Onu vs. Idu (2006) 6 SCNJ 23 at 34 that it is only the trial court that has the advantage which the court of Appeal does not have. The presumption is that the findings of fact by the trial court or Judge are right and the duty to displace that presumption is on the person or party challenging them. Finally it is stated in the brief that this court has no option than to uphold that the trial court was right in holding that the plaintiff and his witness were not credible and to resolve the issue in favour of the respondents.

In the 2nd to 5th respondents brief, it was stated that on the 2nd issue and to determine it is necessary to examine the evidence that was adduced by both parties in support of their respective claim before the trial court. Since in this suit both the appellant and 1st respondent are laying claim to the plot of land in dispute, it is the duty of each to establish his claim to the disputed plot of land. The appellant gave evidence to the effect that his root of title was from Mathew Ishaya Freeman from whom he purchased the disputed plot of land on 13/12/2000 at the cost of N250,000.00. He tendered exhibits 1 and 2 in support of the evidence adduced by him. Exhibit 1 it is submitted cannot confer title to the appellant though it is receivable as evidence of payment of purchase price. See Ogunbanbi vs. Abowab (13 WACA) 222 at 224 and Onimors vs. Arimoro (1973) ALL NWLR 153 at 161. On Exhibit 2 it was submitted that the Exhibit is the purported certified photo copy of the certificate of occupancy No. CK/B/000471. That is said to be of no evidential value in this suit because:
(1) It did not have a sketch plan to show the area it covers.
(2) It did not show or indicate the portion of plot of land sold to the appellant.
(3) It did not meet the requirement of Section 111(1) of the Evidence Act in that
(a) The name of the person that allegedly certified it and the persons official status are not written on it.
(b) There is no evidence of payment of legal fees by the person demanding it.
(c) The certification is not dated.
See Guaranty Trust Bank PLC vs. Tabik Investment Ltd & Anor. (2005) 3 FWLR (Pt.271) 301 at 310 – 311.

Therefore Exhibit 2 lacks probative value and weight to be attached to it. Consequently the court has power to expunge it on the basis that the said Exhibit 2 is inadmissible in law. See Olukade vs. Alade (1976) 6 SC 183 at 188: Owoniyi vs. Omotosho (1961) All NLR 317 at 321: and Alashe & Ors. vs. Olori Ilu & Ors. (1964) All NLR 383 at 390.
It is submitted that if Exhibit 2 is expunged from the record there will be nothing on which the appellant could rely upon. The mere deed of conveyance and the issuance of the certificate of occupancy without proof of prior titled of the person from whom the title is derived would not confer or better the title on the appellant. PW3 has stated that he knows nothing apart from the file about the land. The evidence of PW3 is said in the brief to be hearsay evidence – See Omonujie vs. The State (1976) All NLR 301 at p.303 cited in the brief. DW2 and DW3 as well as DW4 all gave evidence that the land was sold by to Alhaji L.A. Olugbeja by Ishaya Freeman. At page 140 of the record the learned trial Judge held that the Ishaya Freeman purported to sell part of the land in 2000 while he had sold the same land in 1982. This could not be as he had sold the title which was not with him. We are urged to uphold this finding of the trial court. See Mani vs. Shanono (2007) All FWLR 303; and Christopher Okolo vs. Eunice Uzoka (1978) 4 SC 77. We are finally urged to resolve this issue 2 in favour of the 1st respondent.

On the 3rd issue the 2nd – 5th respondents brief, the brief says that there is ample evidence to prove the counter-claim. In Gani vs. Paye (2003) 5 SCNJ 12 at 35, Edozie has this to say:
“It has been said that the effect of failure to cross-examine a witness upon a particular matter is a fact acceptance of the truth of the evidence of the witness.”

We are urged to rely on the evidence as was done by the trial court. Thus in Apute vs. Agbeotu (1990) 10 NWLR 107 at 120 (Per Ba’aba JCA), see also Turka vs. The State (1990) 3 NWLR (Pt.189) 54; Nwogu vs. Njoku (1990) 3 NWLR (Pt.140) 570 and Osundu Co. Ltd. Vs. Akhibe (1999) 7 SCNJ 1 at 16.

In a claim for special damages that must be supported by evidence of not only the total value but also the value of each item in order to know how the total value was arrived at. Akinbiyi vs. Anike (1959) NWLR 16; and NEPA vs. R.O. Ali (1992) 10 SCNJ 34. The appellant destroyed the land for the 1st time with his people and came again the 2nd time to destroy it. Both the special and general damages are therefore justified. In the circumstances we are urged to resolve issue No.3 in favour of the 1st Respondent.

In resolving the 2nd issue which is predicated on Exhibit 2 and the evidence of PW3. I have already dealt with the issue under issue I dealing with Exhibit 2 which I said was contradictory with Exhibit 1. There I said that the Exhibit 2 which is a copy of a certificate of occupancy without a site plan attached to it could not allow the Court to ascertain the exact measurement of the plot claimed. I also held that Alhaji Olugbeja (the father of 2nd – 5th respondents) has a better title to the property since he has bought the same land on 17/1/1982 against the title of the appellant who bought his own land from the same vendor on 13/12/2000. Thus at the time of purchase by the appellant, the vendor has no title to the property which he had transferred since in 1982 to Alhaji Olugbeja – the late father of the 2nd – 5th respondents. There are 5 (five) ways of proving title to or ownership of land in Nigeria. They are:-
(a) Traditional evidence:
(b) Production of documents title duly authenticated;
(c) Positive acts of ownership extending over a long period of time;
(d) Acts of long possession and enjoyment of land; and
(e) Proof of possession of connected or adjacent land.

When a claimant establishes one of the five methods that is sufficient proof of ownership of the land he claims. See Idundun vs. Okumagba (1976) 9 – 10 SC 246; Adeniji vs. Anwase (2006) 12 NWLR (Pt.993) 183; Ewo vs. Anu (2004) 17 NSCQR 36 and Adesanya vs. Aderounmu (2000) 6 SC.

Evidence on facts not pleaded goes to no issue and such evidence if inadvertently admitted will be expunged. See Ito vs. Ekpe (2000) 2 SC 98: Olowofoyekun vs. A.G. of Oyo State (1996) 10 NWLR (Pt.477) 190; and Amobi vs. Amobi (1996) 8 NWLR (Pt.469) 638.
Since therefore the evidence of PW3 has not been pleaded, it goes to no issue. Therefore consequently, issue No.2 is resolved against the appellant and the ground of appeal on which the issue is based is dismissed. Since the 3rd issue is also centred on Exhibits 1 and 2 it is also resolved against the appellant and the ground of appeal on which the issue No.3 is based is dismissed.

On the findings of the trial judge which is criticized by the appellant, it is the primary duty of the trial courts to ascribe probative value to its finding and evaluation of evidence and the appellate court has no business in interfering with such findings. Such findings in the absence of the allegation of perversity, this Court as an appellate Court will not interfere with it – See Alashi & Ors. vs. Olori Ilu (1964) All NLR 383 at 390.

In the final result of my consideration of the 2nd and 3rd issues together the said issues have been resolved against the appellant and the grounds of appeal under which the issues have been formulated are hereby dismissed.

On issue No.4 the appellant is challenging against, the scanty and hearsay evidence of DW3, 4 and 5 in relation to Exhibit 3 and 4 the evidence is said to be weak and incredible. I have said on the credibility to be attached to evidence which I said should be the duty of the trial court that has seen and assessed the witnesses. In the absence of allegation of perversity therefore I will not interfere with the findings of the trial court. Consequently issue 4 is also resolved against the appellant and the grounds of appeal on which the issue 4 is formulated (i.e. grounds 4 and 5) are dismissed.

Issue 5 is challenging the order of the learned trial judge granting general damages to the 1st respondent in the sum of N100,000.00k. That also I feel is justified because of my holding that the 1st respondent has a better title.

On issue 6 which is alleging that some of the proceedings were done in chambers. That is not supported by the record. The presumption is that the proceedings were conducted in public. In the case of Orugbo vs. Una (2002) 9 SCNJ. Niki Tobi JSC was quoted as stating:
“An appellate Court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is there.”

The appeal is without merit and it is dismissed by me. The judgment of the trial Court that is the judgment of J.S. Abiriyi is affirmed – dismissing the appellant’s claims. I assess the cost of this appeal at N40,000.00 which I award against the appellant and in favour of the respondents.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the opportunity of reading in advance the leading judgment of my learned brother, Adamu, J.C.A, CFR, and I agree with him that this appeal totally lacks merit, and ought to be dismissed. I, too, dismiss this appeal and affirm the decision of the trial Court and I abide by the costs awarded therein.

ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading the lead judgment, delivered by my learned brother, ADAMU JCA (PJ), and I agree with him, completely.
The law is trite that where the parties are contesting the ownership of land, and especially where each claim root of title from the same source, then the party that can establish better title will take it. See the case of SUU VS. JOBAK NIG LTD (2012) 49 WRN 52; ABDULLAHI ALI VS. GODDY UGWU (2012) ALL FWLR (Pt. 619) 1078; OKELOLA VS. ADELEKE (2004) 13 NWLR (Pt.890) 307; SHUKKA VS. ABUBAKAR (2012) 4 NWLR – (Pt.1291) 497.
See also the case of MADAM ALI WAZIRIN GWANTU VS. ISIYAKU SARKIN YAKI AND 2 ORS: CA/K/12/2007, (an unreported decision of this Court, delivered on 3/7/2013), where it was held.
“Thus, the right of possession of an Appellant and his right/power to sue for trespass exists as long as the true owner or one with better title fails to emerge. Put differently, the right and power of one in possession to sue for trespass fails to exist against the owner of a property or one who can prove better title to the property.”
Appellant had claimed to derive title to the land from Ishaya Freeman, who purportedly sold the land, measuring 100ft x 100ft, as per exhibit 1 (or 100ft by 200ft as per Exhibit 2) to him in the year 2000. But evidence was produced to show that the same Ishaya Freeman had earlier sold the same land (or larger than what the Appellant claimed) to one Ahaji L. A. Olugbeja (the father of 2nd – 5th Respondents) in 1982! That means, the said Ishaya Freeman no longer had any property in the land he purported sold to the Appellant, as he (Ishaya Freeman) was no longer the owner of the land in 2000, having sold it to Alhaji L. A. Olugbeja in 1982! Appellant therefore purchased a charade, as he must have been duped by Mr. Freeman in 2000, and so Exhibits 1 and 2 (even if they were not contradictory) were founded on a ruse!

In the circumstance, the Exhibit 2 (the alleged Certificate of Occupancy), even if it were produced in its original copy, was liable to be set aside, as its issue would have been unlawful, in view of the unexhausted interest of Alhaji L.A. Olugbeja (2nd to 5th Respondents) in the property, which was not revoked at the time of the purported issuance of Exhibit 2.
In the case of YOUNG FARMERS ASSOCIATION MALLAM ABBA AND GARIN NOUSA IN GASSOL LOCAL GOVT. AREA VS BABA LIYA AND ANOR. (an unreported decision on 23/6/2011),this court held:
“The duty is on the party relying on a Certificate of Occupancy to establish prior existing interest in the land in his favour, or formal and due revocation of the existing rights (of another) for overriding public interest, before the issue of the right of occupancy to him”
See also Kaigama vs. Namnai (1997) 3 NWLR (Pt. 495) 459, held 9 and 12, where it was held:
“9. It is trite law that mere production of deed of grant is not equivalent to proof of title when the origin of the title of the grantor was neither admitted nor established. In the instant case, as the respondent relied on certificate of occupancy, it was his duty to establish that he had a prior interest on the land before the grant of the certificate of occupancy (Mogaji vs. Cadbury (Nig) Ltd (2004) 23 WRN 54; (1985) 7 S.C. 59; (1985) 2 NWLR (Pt. 7) 393, (Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; (1990) 4 SCNJ 65; (1990) All NLR 341.

12. An acquiring authority cannot rob Peter to pay Paul, by divesting one citizen of his interest in property and vesting same in another. In the instant case, even if the Jalingo Local Government had acquired the land in dispute, it was not shown that same was acquired and for public purpose. As such the Local Government could not pass anything to the respondent through certificate of occupancy on the principle of Nemo dat quod non habet. The certificate of occupancy was therefore null and void. The respondents’ case based on the certificate of occupancy was not sustainable.”

See also the case of SUU VS. JOBAK (Nig) Ltd (2012) Vol. 49 page 52 at 63, where this Court held:
“There is no gainsaying the fact that a certificate of occupancy, such as the one bequeathed to the respondent by the Kwara State Government, exhibit D5, is not an irrefutable proof of title over land for all purposes. In other words, it is prone or susceptible to nullification or invalidation, when it is grunted to a party in questionable circumstances as in this case. Exhibit D5, the certificate of occupancy, could not have conferred any toga of title in the disputed land to the respondent in the face of the subsisting and extant deemed rights of the appellant donated to him by the sacred provision of the section 34 of the Land (Use Act, Cap. 15, Laws of the Federation of Nigeria, 2004. Having been issued to the respondent in utter disregard of the appellant’s deemed right of occupancy, it, the certificate of occupancy, exhibit 5, passes at best ‘phantom interest to it, the respondent, over the disputed land.

In the case of ADOLE V. GWAR (1998) 11 NWLR (Pt.1099) 562 AT 590; (2008) 5 MJSC 38, Onu, JSC, affirmed that:
“A certificate of occupancy issued on the Land Use Act, it must be stressed cannot be said to be a conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void…
Consequently, where it is proved as in this case, that another person other than the grantee of a certificate of occupancy had a better title to the land, the court may have no option but to set aside the grant or discountenance it as invalid, defective or spurious as the case may be, see Dzungwe Vs. Gbishe and Anor. (1985) 2 NWLR (Pt.8) 528 at 540, Ogunleye Vs. Oni (1990) 2 NWLR (Pt. 135) 735; (1990) 4 SCNJ 65; (1990) All NLR 541.
With this and other reasons in the lead judgment, I too dismiss the appeal.

Appearances

Biodun OlasupoFor Appellant

AND

Anthonia Onike (Mrs.) for the 1st Respondent
Chief C.A. Ekhasemomhe for the 2nd – 5th RespondentsFor Respondent