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MUSA v. UMARU & ANOR (2022)

MUSA v. UMARU & ANOR

(2022)LCN/17070(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, July 21, 2022

CA/YL/96/2020

Before Our Lordships:

Chidi Nwaoma Uwa 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

JALINGO MUSA APPELANT(S)

And

1. SUVA UMARU 2. DANLAMI NAGWA RESPONDENT(S)

 

RATIO

THE POSITION OF LAW A DECLARATION OF TITLE TO LAND BY A COURT OF COMPETENT JURISDICTION

A declaration of title to land by a Court of competent jurisdiction in favour of one party and against another or others, has the effect of vesting the title over the land in question on the successful party while extinguishing all ownership rights in the land on the part of the person or persons against whom the order is made SEE OKOKO V. DAKOLO (2006) LPELR 2461 (SC); Moneme v. Onoja & Ors (2011) LPELR 8972 (CA). 

The foregoing and the general principle of law to the effect that he who asserts must prove, is the reason why it is well settled principle of law that a party who desires the Court to make a declaration of title in its favour must clearly establish by cogent and reliable evidence, that such party is the owner of the land.
The Supreme Court in the case of ONOVO & ORS v. MBA & ORS (2014) LPELR-23035 (SC), (P. 27, paras. A-E) per OGUNBIYI, J.S.C. reiterated the foregoing thus:
“The law is also settled that in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land, it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. Ita II NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further he must on the strength of his case and not on the weakness of the defence.”
​See: Section 137(1) of the Evidence Act; KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR-1703(SC); OLATOMIDE & ANOR v. IKUMUYILO & ORS(2019) LPELR-48374(CA); and OLATUNJI & ORS v. AYENI(2019) LPELR-48495(CA).
PER TURUR, J.C.A.

METHODS UPON WHICH A PLAINTIFF CAN PROVE ITS STATEMENT TO A DECLARATION OF TITLE TO LAND

The methods via which a Plaintiff may prove its entitlement to a declaration of title to land are:
(1) By traditional history or evidence or;
(2) By documents of title or;
(3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or;
(4) By acts of long enjoyment and possession of the land or;
(5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute.
See: AJIBULU v. Ajayi (2013) LPELR-21860(SC).
​A party is at liberty to choose any way they wish to prove their ownership of land, so long as they present cogent, convincing and reliable evidence before the Court which helps to establish their claim on the balance of probability or preponderance of evidence, which is the standard of proof in civil cases, including cases of declaration of title to land.
See: UNION BANK v. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC); and ADIGHIJE V. NWAOGU & ORS (2010) LPELR-4941(CA).
PER TURUR, J.C.A.

THE POSITION OF LAW WHERE A PLAINTIFF RELIES ON TRADITIONAL HISTORY AS HIS ROOT OF TITLE OF OWNERSHIP TO LAND

The Supreme Court in the case of ANUONYE WACHUKWU AND ANOR V AMADIKE OWUNWANNE AND ANOR [2011] 46 NSCQR 1(SC), pages 39-40, made pronouncements on how a trial Court ought to approach similar circumstances thus:
“Traditional history being of the nature it is -not documented- it usually boils down to the oath of the plaintiff and his witnesses against that of the defendant and his witnesses and the Court is called upon to decide as to which of the versions of traditional history it prefers. To do this, the Court usually evaluates the evidence side by side any documentary evidence available and acts of possession by the parties in recent memory, it is after evaluating these pieces of evidence that the Court where possible decides on which version is preferable and why. Once the Court believes the traditional evidence/history of the plaintiff as to the founding of the land in disputes, it means that the plaintiff has succeeded in establishing his claim to title of the land disputed and has to succeed.’’
See: Are v Ipaye (1990) NWLR (Pt.132)298 (SC).
PER TURUR, 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 Taraba State, Jalingo judicial division delivered on 12th day of July, 2019 by Honourable Justice J.F. Agya, wherein the Court gave judgment in favour of the Respondents.

The material facts of the case leading to this appeal is that the Appellant acting on the belief that he was entitled to declaration of title instituted an action before the lower Court via a Writ of Summons sealed on 18th January, 2018, via which he sought the following:
1. A Declaration that the Plaintiff is the rightful owner of the piece of land lying and situate in Wuro Fada in Ardo Kola Local Government Area and is bounded as follows:
A. To the North, by a bush path/access road.
B. To the South, by a bush path/access road.
C. To the East, by a bush path/access road.
D. To the West, by a stream.
2. A Declaration that the Defendants, their privies and/or agents are trespassers to the land in dispute.
​3. An Order of injunction restraining the Defendants by themselves their allies, agents or any person acting by themselves or through them from further acts of trespass over the land in dispute.
4. The sum of One million Naira (N1,000,000.00) as general damages for trespass.
5. Cost of filing and prosecuting this suit.

​The Appellant filed all requisite processes and in response, the Respondents filed a statement of defence and counter claim, by which they sought the following orders:
1. An Order of this Honourable Court granting the Defendants/Counter Claimants title over all that vast piece of land lying and situate at Koko, Wuro Fada in Ardo Kola LGA of Taraba State and is bounded as follows:
(a) To the North, by a bush path/access road and church land (U.M.C.N Gu Bassa)
(b) To the South by a bush path/access road and Danlami Joseph Nagwa’s farm land
(c) To the East, by a bush path/access road and Jauro Baba’s land.
(d) To the west, by a stream.
2. An order of this Honourable Court restraining the plaintiff, his privies, agents, servants or any person acting on his behalf from trespassing into the land.
3. An order awarding general damages to the tune of N1,000,000.00. (One million Naira only) against the Plaintiff.

The matter went on to trial and upon the conclusion of trial, the lower Court in a judgment delivered on 12th July, 2019, found that the Appellant failed to prove ownership of the land in dispute, but that the Respondents established title to the land in dispute. The Court consequently declared title in favour of the Respondents, granted a perpetual injunction against the Appellant and awarded N50,000.00 (Fifty thousand Naira) as general damages in favour of the Respondents.

Dissatisfied with the decision of the lower Court, the Appellant appealed vide a Notice of Appeal filed on 30th September, 2019.

The Appellant’s Brief of Argument is dated 25th December, 2020 and filed on 20th January, 2021, but deemed as properly filed on 31st January, 2022. Appellant’s counsel distilled a sole issue for determination to wit:
Whether the Respondents proved a better title than the Appellant over the land in dispute, regard being had to the pleadings and totality of evidence adduced by both parties during trial?

​The Respondents’ Brief of Argument is dated and filed on 22nd February, 2022. Respondents’ counsel also formulated a sole issue for determination to wit:
Whether the trial Court was right in law to have dismissed the claims of the Appellant and on the other hand, upheld the counter claim of the Respondents, regards being had to their pleadings and totality of evidence adduced by both parties during trial?

The issues raised by counsel to both parties in this appeal are the same in substance and a determination of the appeal on either of the issues raised would in my view meet the ends of justice. I therefore adopt the Appellant’s issue for the sake of convenience in the resolution of the appeal.
Whether the Respondents proved a better title than the Appellant over the land in dispute, regard being had to the pleadings and totality of evidence adduced by both parties during trial?

​Learned counsel for the Appellant argued that the Respondents as Counter Claimants at trial failed to establish a better title than that of the Appellant at trial and as such were not entitled to the judgment of the lower Court. Counsel sought to substantiate the foregoing by first submitting that the traditional history presented by the Respondents was inchoate as it didn’t clearly define the intervening owners before the title allegedly devolved to the Respondents.

Counsel further submitted that the evidence adduced by the Respondents was either at variance with their pleadings or not relevant to the case and as such any finding of the lower Court based on those findings are perverse and ought to be overturned. He pointed out in support of his submissions that Exhibits A, B, C relied upon by the Respondents had no relationship with their claim at trial, and that the finding by the trial Judge that DW1 was one of the boundary man (sic) was not supported by pleadings and evidence.

He relied on: Asawa v. Tolofari (2019) 6 NWLR (Pt.445) p. 475 para H; UTB (Nig) Ltd v. Ozoemena (2007) 3 NWLR (Pt.1022); and Ikenta Best (Nig) Ltd v. AG Rivers State (2008) 12 NWLR (Pt1084) 639.

Counsel posited that a careful examination of the case of both parties at trial and placing them upon the imaginary scale of justice would reveal that the evidence adduced by the Appellant is more plausible and ought to be believed over that of the Respondents.

He relied on: Mogaji v. Odofin (1978) 4 SC 91; Adekunle v. Aremu (1998) 1 NWLR (Pt.533) 208-210; and Darego v. A.G. Leventis Nig Ltd & Ors (2015) LPELR-25009(CA).

On the other hand, learned counsel for the Respondents argued that contrary to the submission of Appellant’s counsel, Exhibits ‘A’, ‘B’ and ‘C’ are related to the pleadings, being evidence that the Father of the 2nd Respondent and half-brother of the 2nd Respondent, Joseph Umaru, took steps to obtain perfection of title with regards to the land in dispute and that the judgment of the Court was not even based on the exhibits, which the Court only mentioned while summarising the parties’ evidence.

Counsel submitted that the basis of the lower Court’s decision was acts of possession, as the Respondents were able to show at trial that the land in dispute was part of large piece of land owned by their family as proven by long possession and acts of ownership.

Counsel asserted that the evidence of DW1 is not in variance with the pleadings but is in line with the Respondents’ claim as DW1 as a leader of the UMCN was in the best possession to testify that one of the Respondents’ predecessors in title gave out an adjoining land to the organisation which the DW1 is a member of.

He referred to the cases of Dikko & Sons Ltd v. CAC (2014) LPELR-23730 (CA); Muibi Adewuyi v. Lateef Yewande (2015) LPELR-41675(CA).

​Counsel posited that a careful perusal of the lower Court’s judgment clearly shows that the trial Court painstakingly evaluated all the material evidence placed before it and properly evaluated same before coming to a conclusion.

RESOLUTION OF THE ISSUE
A declaration of title to land by a Court of competent jurisdiction in favour of one party and against another or others, has the effect of vesting the title over the land in question on the successful party while extinguishing all ownership rights in the land on the part of the person or persons against whom the order is made SEE OKOKO V. DAKOLO (2006) LPELR 2461 (SC); Moneme v. Onoja & Ors (2011) LPELR 8972 (CA). 

The foregoing and the general principle of law to the effect that he who asserts must prove, is the reason why it is well settled principle of law that a party who desires the Court to make a declaration of title in its favour must clearly establish by cogent and reliable evidence, that such party is the owner of the land.
The Supreme Court in the case of ONOVO & ORS v. MBA & ORS (2014) LPELR-23035 (SC), (P. 27, paras. A-E) per OGUNBIYI, J.S.C. reiterated the foregoing thus:
“The law is also settled that in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land, it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. Ita II NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further he must on the strength of his case and not on the weakness of the defence.”
​See: Section 137(1) of the Evidence Act; KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR-1703(SC); OLATOMIDE & ANOR v. IKUMUYILO & ORS(2019) LPELR-48374(CA); and OLATUNJI & ORS v. AYENI(2019) LPELR-48495(CA).

The methods via which a Plaintiff may prove its entitlement to a declaration of title to land are:
(1) By traditional history or evidence or;
(2) By documents of title or;
(3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or;
(4) By acts of long enjoyment and possession of the land or;
(5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute.
See: AJIBULU v. Ajayi (2013) LPELR-21860(SC).
​A party is at liberty to choose any way they wish to prove their ownership of land, so long as they present cogent, convincing and reliable evidence before the Court which helps to establish their claim on the balance of probability or preponderance of evidence, which is the standard of proof in civil cases, including cases of declaration of title to land.
See: UNION BANK v. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC); and ADIGHIJE V. NWAOGU & ORS (2010) LPELR-4941(CA).

There is no gainsaying the fact that both parties at trial relied on traditional history as the means via which they sought to establish their respective entitlement to the reliefs sought from the lower Court and the Court upon being confronted with two opposing sets of traditional history over the same piece of land, righty in my view decided to subject the traditional history to the test of any other evidence in support of the history, including documents and acts of ownership/long possession, if any.
The learned trial Judge in his judgment found thus:
“The plaintiff has in my firm but humble view failed to establish acts of ownership that will warrant the inference that she is the owner of the land in dispute. The defendants have, however, shown by credible evidence that they have been in long possession and have exercised acts of ownership like renting out part of the land to the father of DW1 and giving out another portion of the land to the UMCN missionaries where they have built their church. The Defendants, particularly the 2nd defendant have proved the ownership of adjacent land to the land in dispute in circumstances which has rendered it most probable that they are the owners of the land in dispute. From the evidence before the Court, particularly evidence of recent acts on the land in dispute, I find the traditional history projected by the Defendants more probable than the traditional history by the plaintiff.”
The Supreme Court in the case of ANUONYE WACHUKWU AND ANOR V AMADIKE OWUNWANNE AND ANOR [2011] 46 NSCQR 1(SC), pages 39-40, made pronouncements on how a trial Court ought to approach similar circumstances thus:
“Traditional history being of the nature it is -not documented- it usually boils down to the oath of the plaintiff and his witnesses against that of the defendant and his witnesses and the Court is called upon to decide as to which of the versions of traditional history it prefers. To do this, the Court usually evaluates the evidence side by side any documentary evidence available and acts of possession by the parties in recent memory, it is after evaluating these pieces of evidence that the Court where possible decides on which version is preferable and why. Once the Court believes the traditional evidence/history of the plaintiff as to the founding of the land in disputes, it means that the plaintiff has succeeded in establishing his claim to title of the land disputed and has to succeed.’’
See: Are v Ipaye (1990) NWLR (Pt.132)298 (SC).

I agree with the learned trial Judge that the evidence of traditional history as presented by the Respondents before the lower Court was cogent and compelling. The lower Court was further fortified by the Exhibits furnished by the Respondents which contrary to Appellant’s submissions herein are related to the land and show an attempt to perfect land belonging to the Respondents’ family. In sum, the learned trial Judge in my view properly evaluated the evidence that was placed before him and I am not minded to interfere with same. It is trite that an Appellate Court ought not to interfere where there is proper evaluation of evidence by a lower Court.
See: FBN PLC v. OZOKWERE (2013) LPELR-21897(SC); FCMB v. REGISTERED TRUSTEE OF MOSES SALIHU ABU FOUNDATION (2018) LPELR-45160(CA); and ANUNOBI v. NWANKWO (2017) LPELR-43774(CA).

In summation the sole issue nominated by the Appellant is hereby resolved against him.

The appeal lacks merit and is hereby dismissed.

The judgment of the trial High Court delivered on 12th July, 2019 in Suit No. TRSJ/16/2018 is hereby affirmed.
Parties to bear their respective costs.

CHIDI NWAOMA UWA, J.C.A.: I read before now, a draft copy of the judgment delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. His lordship has adequately and comprehensively resolved the sole issue that arose for determination of the appeal. I wish to add a few words.

By virtue of Section 137 of the Evidence Act 2011, in civil cases, the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities and I am without doubt that the Respondents established and proved a better title to the disputed land than the Appellant.

​It is trite and long settled principle of law that a counter-claim is a separate and an independent claim. In case of YUSUF & ANOR VS IBRAHIM (2020) LPELR 51464 (CA) PAGE 26, PARAGRAPHS A-C, his Lordship, Per Abundaga, JCA, held thus:
“The law is settled that a counterclaim is a distinct and separate action and the burden and standard of proof is the same as in the main claim. The defendant/counter claimant must also discharge the burden by cogent and credible evidence.”
See, also NIGERIAN BOTTLING COMPANY PLC V. EKPO (2020) LPELR 51997 (CA) PAGES 49-50.
It is settled law that the Respondents having counter-claim were saddled with the responsibility and/or burden of proving the facts asserted. See, the case of MUFUTAU V. ADENIYI (2021) LPELR 55612 (CA) PAGES 24-25, PARAGRAPHS F-A; MAIHAJA V. GAIDA (2017) LPELR 42474 (SC) PAGES 61-62, PARAGRAPHS E-B; AGBABIAKA V. FIRST BANK (2019) LPELR 48125 (SC) PAGE 8 PRAGRAPHS D-E. 

The phrase “burden of proof” has three meaning namely; the persuasive burden that is the burden of proof as a matter of law and pleadings, the evidential burden and the burden of establishing the admissibility of evidence. See IGBI VS. STATE (2000) 2 SC 67.

​Further, I also agree with my learned brother in the leading judgment that the Appellant should or is mandated to prove his case on its strength and not on the weakness of the Respondents’ case. From the evidence in the printed records of Appeal before the Court, it is without contention that the Respondents proved a better title to the land in dispute by using the traditional history or evidence which was never contradicted by the Appellant and I cannot help but, agree with the industrious findings of the trial Court.

In view of the above and fuller analysis in the leading judgment, I hold that this appeal is unmeritorious and accordingly dismissed.

The judgment of the trial Court delivered on the 12th day of July 2019 in Suit No. TRSJ/16/2018 is hereby affirmed.

I abide by the orders made in the leading judgment as to costs.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have read the draft judgment just delivered by my learned brother, Jamilu Yammama Tukur, JCA. I agree with his lordship’s resolution and issues reached therein.

Nothing further to add.

Appearances:

V. N. Eze, Esq., holding the brief of E.B. Kizito. For Appellant(s)

F. R. Baiyo, Esq., holding the brief of C. J. Okeke, Esq. For Respondent(s)