OTTAH v. MUHAMMAD
(2020)LCN/15430(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, November 19, 2020
CA/S/75/2018
RATIO
TITLE TO LAND: WHETHER A CLAIMANT MAY RELY ON THE WEAKNESS OF THE CASE OF THE DEFENDANT IN PROVING HIS CASE
The law on the subject is and will always be that the Claimant will have to rely on the strength of his own case and not on the weakness of the case of the Defendant. Where this onus is not discharged the weakness of the Defendant’s case will not be of any help to him. But where the case of the Defendant lends support to the case of the Claimant, the Court may take it into consideration in reaching a conclusion on the dispute as to which of the sides to believe. For these are like some of the religious mantra associated with land disputes and relied upon for all times by Courts of law dealing with such disputes in Nigeria. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337; WOLUCHEM vs. GUDI (1981) 5 SC 291 and a host of other decisions in that light. PER FREDERICK OZIAKPONO OHO, J.C.A.
TITLE TO LAND: WAYS OF PROVING OWNERSHIP OF LAND
There are five (5) ways of proving ownership of land or title to land. But the one relied upon by the Claimant/Respondent in this case is on proof by production of documents of title duly authenticated; proof by acts of ownership in and over the land in dispute such as selling, leasing, making grants; proof by acts of long possession and enjoyment of the land. But the question to address here is whether from the printed records of this appeal, the Claimant succeeded in establishing its ownership claims to the parcel of land in dispute by proving his claims.
However, before answering or attempting to find an answer to this question, it may be important to state that in all such land disputes where the Claimant decides to establish his title on proof by production of documents of title duly authenticated, the production of documents of title without more is not sufficient proof of title to land since in such a situation, where the title of the grantor is in issue. It is the duty of the claimant to go further to not only plead and trace the root of title of the grantor or vendor but also prove same on the balance of probability. Where the Claimant fails to discharge this onus his claim must fail. See the case of ASHIRU vs. OLUKOYA (2006) LPELR- 580 (SC) per ONNOGHEN, JSC (P. 32, paragraphs B-C.). PER FREDERICK OZIAKPONO OHO, J.C.A.
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
NDUISI OTTAH APPELANT(S)
And
ABUBAKAR MUHAMMAD RESPONDENT(S)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of Kebbi State High Court, Birnin-Kebbi in Suit No: KB/HC/25/2015 delivered on 13th December, 2017 Coram: S. H. BASHIR, J wherein the Court (hereinafter referred to as the: “Court below”) gave judgment in favour of the Respondent. At paragraph 18 of the Respondent’s Statement of Claim at the Court below, filed on the 18th day of August, 2015 the Respondent as Claimant claimed against the Appellant as Defendant as follows:
“WHEREOF the Claimant claims as per his writ of summons thus:
a. A Declaration that by sale and act of long possession the Claimant is the rightful owner of that piece of land situate in Gwadangaji Village Birnin Kebbi covered by letter of grant No. BI/G/11748 more particularly described as Plot no. 34 LP 72 Residential Layout Gwadangaji.
b. AN ORDER of perpetual Injunction restraining the defendant either by himself, agents, privies or appointees from further trespassing or attempting to trespass on the Claimant’s land.
c. AN ORDER directing the defendant to remove the wall constructed illegally on the Claimants land.
d. AN ORDER directing the defendant to erect the Claimant’s wall demolished by the defendant.
e. AN ORDER directing the defendant to pay the sum of N2,000,000 to the Claimant as general and aggravated damages.
f. AN ORDER directing the defendant to refund the cost of filing and prosecution of this suit by the Claimant.
g. ANY OTHER orders as the Court may deem fit to make.
The brief facts of this case is that Respondent being the Claimant Court below claimed against the Defendant, who is the Appellant in the appeal, as rightful owner of the parcel of land in dispute. He claimed to have bought the said parcel of land from another person who was granted same by the government. The Appellant, on the other hand also claimed that the parcel of land was part of an expanse of land he bought from the previous owner, but along the line, the expanse of land was acquired by the government, who partitioned it into plots and that very parcel allocated to him together with three (3) other plots.
In the course of trial, both parties claimed that the government issued them with title documents to the parcel of land in dispute. The Respondent as Claimant testified for himself and called a witness. He also tendered two documents. On the part of the Appellant as Defendant, he testified for himself and tendered one document. At the close of case the Court below on the 13th December, 2017 in a well-considered judgment, decided in favour of the Respondent. Aggrieved by the judgment of the Court below, the Appellant has appealed to Court vide a Notice of Appeal dated and filed on the 17th January, 2018. There are three (3) grounds of appeal filed.
ISSUE FOR DETERMINATION:
There are two (2) issues nominated for the determination of this appeal by the Appellant as follows:
1. Whether the lower Court was right in accepting and acting on the purported witness depositions on oath of the respondent’s witnesses which are incompetent and which acceptance and reliance occasioned miscarriage of justice. (Ground 3).
2. Whether the Court below was right in holding that the respondent has established his claim thereby granting the reliefs sought by the respondent. (Grounds 1 and 2).
On the part of the Respondent, two (2) issues are equally nominated for the determination of this Appeal thus:
1. Whether the trial Court was right in admitting and acting on the witness depositions on oath of the respondent’s witnesses. (Ground 3)
2. Whether the trial Court was right in holding that the respondent had proved his claim thereby granting the reliefs sought. (Grounds 1 and 2)
Upon a careful perusal of the issues nominated by learned Counsel to the parties, it is rather glaring that the issues nominated by both sides of the divide are clearly identical but for a few issues of semantics. On account of this position, this Appeal shall be determined on the bases of the issues nominated by the Appellant. The Appellant’s brief of argument dated 22-5-2018 and settled by MAGNUS IHEJIRIKA ESQ., was filed on the 10-10-2018 while the Respondent’s brief of argument dated 12-11-2018 and filed on the 21-1-2019 and deemed properly filed and served on the 9-6-2020 was settled by HUSSAINI ZAKARIYAU ESQ.,. On the 24-9-2020 at the hearing of this Appeal, learned Counsel for the parties adopted the briefs of arguments of the parties and urged the Court to resolve the Appeal in favour of their clients.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether the lower Court was right in accepting and acting on the purported witness depositions on oath of the respondent’s witnesses which are incompetent and which acceptance and reliance occasioned miscarriage of justice? (Ground 3)
The contention of learned Counsel in arguing this issue is that the Court below erred in law in accepting, relying upon and acting on the witness depositions on oath of the Respondent’s witnesses and that this resulted in a miscarriage of justice. The further contention of Counsel is that the circumstances of what transpired in this matter are similar to the circumstances of the case in GUNDIRI vs. NYAKO (2012) 11 SCNJ 73 on the issue of the validity of the witness deposition on oath.
According to Counsel, the Court below also erred in law in stating that the Witness Statement on oath can be likened to the pleading. The argument of Counsel is that the Witness Statement on oath is the evidence upon which the pleading is proved. He added that unlike the conclusion of the Court below on the subject, both witness deposition on oath and affidavit do the same work and that is, that they are evidence upon which facts are proved. For this reason, Counsel submitted therefore that the distinctions made by the Court below regarding the affidavit and the witness depositions on oath are erroneous and misconceived.
It was also contended by Counsel that justice is justice according to law and that failure to comply with the laws and or rules of Court cannot be tolerated as this is so because laws and rules of Court are meant to be obeyed. Against this position, Counsel drew attention to page 63 of the record of appeal, where the Court below came to right conclusion that the Respondent’s witnesses are illiterates, but that having so concluded, it was the place of the Court below to have applied the law and rules regulating depositions made by such illiterates. According to Counsel, the failure to do so is bound to occasion a miscarriage of justice. On account of this position, Counsel referred this Court to Order 1 Rule 9 of the Kebbi State High Court (Civil Procedure) Rules 2017 which provides thus:
“Where in these Rules depositions and affidavits are required to be made, if the ‘deponent does not’ understand English Language such deposition or affidavit shall be made in a language he understands and shall be made in compliance with the Illiterates’ Protection Law, Cap 67 laws of Kebbi State 1996.”
Against the backdrop of the foregoing, Counsel submitted that the witness cannot adopt any deposition purportedly made by him which is not in compliance with the Kebbi State Rules of Court and in the language that he understands. According to Counsel, the PW1 and PW2, who are the only witnesses for the Respondent at pages 48 and 49 respectively of the record of appeal, stated under cross-examination that they made their Statements in the Hausa Language, but that what was adopted by them were depositions in English Language, which is not the language understood by the witnesses. For this reason, Counsel contended that the witness depositions adopted by them and which the Court below accepted and acted upon is incompetent. Counsel urged this Court to so hold. See the case of GUNDIRI vs. NYAKO (Supra).
In addition, based on the judgment of the apex Court in GUNDIRI vs. NYAKO (Supra) and Order 1 Rule 9 of the Kebbi State High Court (Civil Procedure) Rules 2017, Counsel urged this Court to hold that the witness depositions adopted by the Respondent’s witnesses are defective, incompetent and liable to be struck out. He said also that if these witness depositions are struck out, there is no evidence in support of the Respondent’s pleadings, which in the circumstance will be deemed abandoned. Counsel urged this Court to resolve this issue in favour of the Appellant.
ISSUE TWO:
Whether the Court below was right in holding that the respondent has established his claim thereby granting the reliefs sought by the respondent? (Grounds 1 and 2)
In arguing this issue, learned Appellant’s Counsel contended that the Court below erred in law in holding that the Respondent (then claimant) established his claim and so was entitled to the reliefs sought. As far as Counsel was concerned, the Respondent failed to establish his claims before the Court below. Counsel submitted that in an action for declaration of title to land, the Claimant has to rely on the strength of his own case and not on the weakness of the defence. See the case of OKEKE vs. EZE (2013) ALL FWLR (PT. 711) 1537 at 1553. The argument of learned Counsel is that the Court below accepted this position of the law at page 58 of the record of appeal where it held, thus:
“A claim for a relief of declaration whether of title to land or not is established by admission by the defendant, because the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a claimant he is entitled to a declaratory relief.”
In other words, Counsel further argued that the Court cannot grant a declaratory relief except when the Claimant has satisfied the Court through his pleadings and evidence led irrespective of even the admission by the Defendant. In addition, that it is only when the Claimant has succeeded in establishing his claim that the Court has to look at the side of the defence to determine who proved a better title to the parcel of land in dispute. He contended that where the Claimant fails to establish his claim, it is unnecessary to consider the position of the defence as the case is liable to be dismissed.
It was further contended by Counsel that for a Claimant to succeed in an action for declaration of title to land, he must plead among other things, those who are his boundary neighbours to the land; the extent and size of the land in dispute and his root of title. See the case of NWOGO vs. NJOKU (1990) 3 NWLR (PT. 140) 570 at 586. Counsel also said that in addition to pleading all of these, the Claimant still has the duty to establish them by credible evidence.
In drawing a close look at the Statement of Claim (at pages 2-4 of the record) and the witness depositions on oath of the Respondent’s witnesses (at pages 6-11 of the record), Counsel argued that the Respondent and his other witnesses did not state who the boundary neighbours to the land in dispute are, and did not also state the extent and size of the land in dispute particularly, the extent and size or the land in dispute. According to Counsel, this is very important because this is what will assist the Court and parties in determining exactly what is in dispute. Against the backdrop of the foregoing, Counsel drew attention of this Court to paragraph 15 of the statement of claim (page 3 of the record) where it is stated thus:
“The defendants while constructing fence on plot no. 3 and 4 entered into plot no. 34 by demolishing the claimant’s wall and erect his own by extending the size of his plot.”
Going by the foregoing, Counsel submitted that the Respondent as Claimant before the Court below failed to show the size of the land in dispute and only left the Court to speculate whether it is the entire land or part of it that the Appellant allegedly entered. He further submitted that this is pertinent when it is observed that the Respondent described the ‘wall’ in singular terms rather than in its plural form in the said paragraph. Counsel also submitted that by failing to state the size of the land in dispute, the Respondent has failed to establish his claim. Counsel urged this Court to so hold.
As it has to do with the question of the root of title, it was contended by Counsel that the Court below came to the wrong conclusion that the Respondent traced his root of title and therefore proved a better title than the Appellant. Counsel submitted that the law desires that where a party is relying on traditional history, he has to trace his root of title to the person who possesses the radical title to the parcel of land. He added that where the party is relying on purchase, he has to state how the vendor came to be the owner for the Court to be convinced that at the time of sale, he is possessed of the right to sell.
Counsel drew attention to paragraphs 5 and 6 of the statement of claim (at page 3 of the record of appeal) where the Respondent only stated that he bought the land from one Dangara Dandu, who was one, among a number the owners of a large farm land in the area, but did not state how Dangara Dandu came to own the land in dispute. According to Counsel, the said Dangara Dandu, testifying as the PW2 on his part did not state how he came to own the land; whether by inheritance, purchase, gift, grant or whatever. On this score, once again, Counsel submitted that the Respondent failed to trace his root of title.
Learned Counsel also contended that at some point, both parties agreed that the various parcels of land in the area were acquired by the government who schemed them into plots were given out; whilst the government gave Dangara Dandu and the Appellant the land in dispute. Counsel argued that with such acquisition, by government all existing rights became extinguished and that this means that both parties derived their title from the government. He argued that in this regard, to establish his title, the Respondent as Claimant has the duty to show that his predecessor in title was allocated the parcel of land before the Appellant as title will rank in order of creation.
Learned Counsel submitted that the Respondent failed woefully in this regard. He said that the Exhibit Defence 1 (CTC of C. of O.) tendered by the Appellant) was issued in 2005 while Exhibit B (Letter of Grant tendered by the Respondent) was issued in 2008. According to Counsel, by this it is not in doubt that the Appellant got the land before the Respondent. He cited the case of OLAGUN vs. AKERELE (2014) ALL FWLR (PT. 724) 162 at 178, it was held;
“Where both parties in dispute claim and succeed in tracing their tittle to the disputed property to the same grantor, the latter in time to obtain a grant cannot maintain an action against the person who first obtain the grant.”
See also the case of ILONA vs. IDAKWO (2003) 11 NWLR (PT. 830) 53 at 91-92.
Against the back drop of the foregoing, Counsel submitted that the Appellant, having shown a much earlier title to the parcel of land in dispute, before the Respondent has a better title to the parcel of land in dispute and that the Respondent failed to established his claim. Counsel therefore urged this Court to so hold and resolve this issue in favour of the Appellant.
On the award of the sum of N2, 000,000.00 to the Respondent against the Appellant as general and aggravated damages when the Respondent neither proved the need for it, nor even paid the requisite filing fees for the amount claimed. Counsel contended that the Court below erred in law. Counsel argued that suit was filed on the 18th August, 2015 under the old Rules of Kebbi State High Court (Civil Procedure) Rules, 2011, wherein it is stipulate that a Claimant has to pay 3% of the amount he is claiming. The argument of Counsel is that a close look at the endorsement on page 1 of the record will show that Claimant only paid N3, 000.00 and that this is not the filing fee of a claim for N2, 000,000.00. He cited the case of 7UP BOTTLING CO vs. YAHAYA (2001) 4 NWLR (PT. 702) 47 at 55, and OKOLO vs. ANYAKWO (1999) 3 NWLR (PT. 594) 289 AT 295-296, in contending that the failure to pay requisite fees makes the writ issued incompetent. On the whole, Counsel urged this Court to resolve issue two in favour of the Appellant.
RESPONDENTS:
ISSUE ONE
Whether the trial Court was right in admitting and acting on the witness depositions on oath of the respondent’s witnesses. (Ground 3).
In arguing this issue, learned Counsel submitted that the Court below was right in holding that the witness deposition on oath of the PW1 and the PW2 were admissible. According to learned Counsel, a witness statement on oath when adopted in evidence becomes the evidence in chief of the witness in question. Hence, the witness statement on oath of PW1 and PW2, which was identified and adopted by the duo becomes their evidence in chief. (See page 47 and 49 of the record of Appeal). The argument of Counsel is that the learned trial judge was therefore right when he accepted this as their evidence in chief after identifying it as theirs and accepting same. Counsel cited the case of OGUNDE vs. ABDULSALAM (2017) LPELR 41875 where the Court held on nature and status of witness statement on oath thus:
“Now, by trials under the new regime of frontloading of evidence, more often than not, statement on oath of a witness is the replica of the leadings of the party on whose behalf the evidence is given. The written deposition of a witness is thus adopted as his evidence in chief while his cross examination is the test of his veracity and the Court would only act on such evidence if it is found to be cogent, credible and reliable upon proper evaluation. Thus, the fact that a witness had deposed to any or all the facts as pleaded alone would not suffice because the Court still has the duty to assess the quality of his evidence”.
The further submission of Counsel on this issue is that the evidence of PW1 and PW2 in the course of the trial was done in accordance with the rules of Court and properly accepted by the trial Court. He argued that the issue raised by the Appellant is clearly a technicality issue and that the Courts have all along been mindful of deciding matters on the basis of technicality but on the merit of cases. See the case of ODOM vs. PDP [2016] 18 WRN 114 [p.137] lines 25-35.
On the question of the reliance placed by the Appellant on the provision of Order 1 Rule 9 of the Kebbi State High Court (Civil Procedure Rules) 2017 and the decision in GUNDIRI vs. NYAKO (Supra) in arguing that PW1 and PW2 who could not speak or understand English cannot make such depositions adopted, Counsel submitted that the position of the law is that the Illiterates’ Protection Act is meant to protect an illiterate but not to work against him and that the Appellant cannot be seen to be complaining for PW1 and PW2.
According to learned Counsel, the Supreme Court Judgment in GUNDIRI vs. NYAKO (2014) 2 NWLR (PT. 1391) is distinguishable from the instant case. He said that in GUNDIRI vs. NYAKO (Supra) the witness deposition in English Language adopted by the witnesses were witness statement translated into English by one SUNDAY MATHEW who was the interpreter who translated the Hausa Statement to English and who was not a legal practitioner employed by the witnesses. But, that in the instant case the witness deposition was translated by a legal practitioner employed by the witnesses, (one RILWANU M. BUHARI) (See list of Counsel on page 5 and translator on page 7 and 9 of the record of appeal) who worked in accordance with the directives of his client. Counsel argued that this clearly distinguished the instant case as the name: “SUNDAY MATHEW” (a non lawyer) interpreter, is an exception to the rule on documents under the Illiterates Protection Act.
Learned Counsel further buttressed his arguments with the decision of the Supreme Court in EDOKPOLO & CO. LTD vs. OHENHEN & ANOR (1994) LPELR-1016, where the Court held the view that documents prepared by lawyers are exceptions to the issue of illiterate protection and he urged this Court to so hold; the documents adopted by PW1 and PW2 having been prepared by their Counsel. Learned Counsel urged this Court to resolve this issue in favour of the Respondent.
ISSUE TWO:
Whether the trial Court was right in holding that the respondent had proved his claim thereby granting the reliefs sought. (Grounds 1 and 2)
Learned Respondent’s Counsel began by acknowledging the five methods of establishing title to land in Nigeria and cited appropriate cases. However, Counsel argued that the Respondent as Claimant was not duty bound to prove all the five methods. According to Counsel, the law is very clear that the establishment of one of the five ways is sufficient proof of ownership and that the Respondent needs only to prove at least one method out of the five methods. See the case AWODI vs. AJAGBE (2016) 20 WRN 111 [P. 131] line 5. In his arguments, Counsel submitted that the Respondent relied on proof by production of documents of title duly authenticated; proof by acts of ownership in and over the land in dispute such as selling, leasing, making grants; proof by acts of long possession and enjoyment of the land. Counsel further submitted that the Respondent was able to adduce evidence to prove these various methods which were not challenged by the Appellant. Counsel added that the Respondent tendered the sale agreement letter in Hausa and its translation in English and they were admitted and marked EXHIBITS A – A1. (See page 47 of the record of appeal). It was also submitted that the Respondent tendered in addition, the original letter of grant no: B1/G/11784, more particularly described as plot no: 34 LP 72 Residential Layout Gwadangaji, bearing the name of PW2 and that this was admitted and marked as EXHIBIT B. (See page 48 of the record of appeal).
In order to further establish its claim, learned Counsel submitted that the Respondent in paragraphs 3-4 of the statement of claim stated that he has been enjoying quiet possession without any disturbance from anybody since he purchased the land in dispute. (See pages 2-3 of the record of appeal).
Arising from the foregoing, Counsel submitted that in an action for declaration of title to land like in the instant case, the burden of proof is on the Claimant to prove his case on the balance of probability by adducing material facts and evidence to support his claim and that in agreeing with the Appellant on the issue that the Claimant wins or losses on the strength of his case and not on the weakness of the case of the Defendant. See the case of AWODI vs. AJAGBE (2016) 20 WRN 111 [P. 142] line. 40. The contention of Counsel here is that the Respondent in the instant case only proved his case but also adduced sufficient evidence, which the trial Court relied upon in granting the reliefs sought by the Respondent.
On the contention of the Appellant that the Respondent failed to plead his boundary neighbours to the land, extent and size of the land in dispute and root of title, Counsel submitted that the averment by the Appellant is not true and argued that the issue of proof of identity of a disputed land only arises when a Defendant disputes the identity of the land or where the Defendant does not know the land in dispute. But that in the instant case, the identity of the land was not in dispute as parties knew of its identity, whose ownership was the bone of contention. Counsel cited the case of JIMOH ATANDA vs. MEMUDU ILIASU (2012) LPELR-19662.
In assuming but not conceding that Appellant’s submissions made here above are wrong, Counsel submitted that the Respondent in proving its case not only identified the land but also proved the root of title to the land, when the Respondent tendered EXHIBITS A-A1 and B in identifying the land in dispute. It was contended by Counsel that by so doing the Respondent identified the land in dispute (plot 34) by stating the neighbours and the plots that border the disputed land, some of which are plot 3 and 4, which also belongs to the Appellant. Against this position, Counsel drew attention to Paragraphs 12-15 of the statement of claim on the issue. (See page 3 of the record of appeal).
Arising from the foregoing, it was further contended by Counsel that the Respondent laid proper foundation on how he came in possession of the land in dispute from the original owners, which is clearly stated in paragraphs 3-8 of the statement of claim. (See pages 2-4 of the record of appeal). He also contended that the evidence of the original owners was neither challenged nor contradicted. It was also contended that the Respondent stated that he bought the land in dispute at the cost of N210,000.00 (See page 2 of the record of appeal) and that this piece of evidence was corroborated by the testimony of PW2, which was also neither challenged nor contradicted. He told this Court that the PW2 went further to state that as a result of the sale transaction, he transferred his title and letter of grant to the Respondent. (See pages 8-9 of the record of appeal). See also Paragraphs 3-8 of the statement of claim (See pages 2-3 of the record of appeal).
Learned Counsel further contended that from the statement of claim (see pages 2-4 of the record of appeal) and witness deposition of PW1 (see pages 6-7 the record of appeal) and PW2 (see pages 8-9 of the record of appeal) and EXHIBITS A-A1 and B it is clear that the Respondent clearly identified the land in dispute and established root of title in accordance with the Supreme Court decision of AYANWALE vs. ODUSAMI [2012] 3 WRN 1 [P.19] LINES 5-45.
The contention of Counsel here is that after the Respondent had discharged the burden of proof placed on him by Section 133(1) of the Evidence Act, 2011 the burden of proof thereby shifts in accordance with Section 133(2) of the Evidence Act, 2011 to the Appellant. Against the backdrop of this position, Counsel argued that the Court below in its judgment did not attach any weight to EXHIBIT Defence 1 tendered by the Appellant (See page 65-67 of the record of Appeal) as a result of which the preponderance of evidence only preponderated to the Respondent, hence Judgment was entered for the respondent based on the only admissible valid evidence. According to learned Counsel, this part of the Judgment was not appealed against by the Appellant herein and for this reason, Counsel urged this Court to hold that the Appellant had accepted that as a valid decision of the Court below. According to Counsel, the Appellant having not appealed against the part of the Judgment on CTC of Photocopy of C of O (See page 65-67 of the record of appeal) that he cannot argued same before this Court as it is taken that that matter has been settled by the Court below.
The attention of this Court was also drawn to the fact that the trial Court entered judgment for the respondent by granting all the Respondent’s prayers (See page 67 and 2 of the record of Appeal) and that the Appellant did not appeal against the monetary award, which remains conspicuously missing in the Notice of Appeal (See page 68-70 of the record of Appeal). The contention of Counsel is that the Appellant having failed to appeal against this part of the judgment; he cannot now argue anything on same. Counsel therefore urged this Court to strike out the Appellants submission on page 10 of the Appellant’s brief.
Learned Appellant’s Counsel also made submissions on the Appellant’s tendered EXHIBIT DW1 (photocopy of Certified True Copy (CTC) of Certificate of Occupancy (C of O) made without any further evidence. The contention is that the law is clear that tendering documents alone does not prove title to land. See AUTA vs. IBE (2001-2004) SCJL 808 at 801:2. He said in addition, that the Appellant failed to show how he allegedly got the land in dispute; that from paragraph 4 of the statement of defence (see page 13 of the record of appeal) the appellant only stated that:
“…he bought a large expanse of land from the owners and when the government…”
He further said that the Appellant did not state whether he bought the land from somebody or not; neither did he tell the Court how he allegedly came in possession of the land in dispute. As far as Counsel is concerned the mere mention of the word: “owners” does not show or disclose the name of any person.
On the claim of the Appellant that the EXHIBIT Defence 1(Photocopy of CTC of the C of O) was issued in 2005 before the EXHIBIT B (Letter of Grant) was issued in 2008, Counsel argued that the Court below clearly evaluated this issue of photocopy of the CTC of C of O tendered by the Appellant. He said that the trial Court relying on decided cases by the Supreme Court clearly stated that photocopy of CTC of C of O being public document needs to be re-certified. Counsel said that the Appellant did not appeal against this in his notice of Appeal. (See page 67-69 of the record of Appeal).
The argument of learned Counsel is that the Exhibit DW1 having been adjudged by the Court below as a weightless paper and for which the Appellant did not Appeal, the said EXHIBIT DW1 attracts no probative value and therefore the issue of rank in order of creation as argued by the Appellant would no longer hold water, especially when the Appellant refused to Appeal against that part of the Judgment. Counsel urged this Court to resolve this issue in favour of the Respondent and to dismiss this Appeal.
RESOLUTION OF APPEAL
By way of a preliminary comment, it may be necessary to begin by stating the general position, that in cases bordering on land disputes the burden of proof is always on the party who is claiming that the “parcel of land belongs to him to satisfy the Court that he is entitled on the evidence brought by him to a declaration that the land actually belongs to him. The law on the subject is and will always be that the Claimant will have to rely on the strength of his own case and not on the weakness of the case of the Defendant. Where this onus is not discharged the weakness of the Defendant’s case will not be of any help to him. But where the case of the Defendant lends support to the case of the Claimant, the Court may take it into consideration in reaching a conclusion on the dispute as to which of the sides to believe. For these are like some of the religious mantra associated with land disputes and relied upon for all times by Courts of law dealing with such disputes in Nigeria. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337; WOLUCHEM vs. GUDI (1981) 5 SC 291 and a host of other decisions in that light.
There are five (5) ways of proving ownership of land or title to land. But the one relied upon by the Claimant/Respondent in this case is on proof by production of documents of title duly authenticated; proof by acts of ownership in and over the land in dispute such as selling, leasing, making grants; proof by acts of long possession and enjoyment of the land. But the question to address here is whether from the printed records of this appeal, the Claimant succeeded in establishing its ownership claims to the parcel of land in dispute by proving his claims.
However, before answering or attempting to find an answer to this question, it may be important to state that in all such land disputes where the Claimant decides to establish his title on proof by production of documents of title duly authenticated, the production of documents of title without more is not sufficient proof of title to land since in such a situation, where the title of the grantor is in issue. It is the duty of the claimant to go further to not only plead and trace the root of title of the grantor or vendor but also prove same on the balance of probability. Where the Claimant fails to discharge this onus his claim must fail. See the case of ASHIRU vs. OLUKOYA (2006) LPELR- 580 (SC) per ONNOGHEN, JSC (P. 32, paragraphs B-C.)
In the instant appeal, a careful examination of the printed records show that the Respondent as Claimant a sale agreement of the parcel of land in dispute letter in Hausa and its translation in English and these were admitted and marked EXHIBITS A – A1. (See page 47 of the record of appeal). It is also instructive to note that the Respondent tendered in addition, the original letter of grant no: B1/G/11784, more particularly described as plot no: 34 LP 72 Residential Layout Gwadangaji, bearing the name of the PW2 and that this was also admitted and marked as EXHIBIT B. (See page 48 of the record of appeal). The Respondent at paragraphs 3 – 4 of his statement of claim deposed to the fact that he had been in quiet possession of the parcel of land in dispute and enjoying same without any disturbance from anybody since he purchased the land in dispute. (See pages 2-3 of the record of appeal).
It would be recalled that even from the printed records of this Appeal, the fact that the Respondent carefully laid a proper foundation in terms of how he came about the ownership and into possession of the parcel of land in dispute from the original owners, are stated in paragraphs 3 – 8 of the statement of claim. (See pages 2-4 of the record of appeal). It is however on record that the evidence of the Respondent led as Claimant in support of his pleading on these issues were neither challenged nor contradicted. The Respondent led evidence in proof of the fact that that he bought the land in dispute at the cost of N210,000.00 (See page 2 of the record of appeal) and this piece of evidence was corroborated by the testimony of the PW2. Once again, this piece of evidence was neither challenged nor contradicted.
The PW2, in his own testimony gave evidence to the effect that as a result of the sale transaction, he transferred his title and letter of grant to the Respondent. (See pages 8-9 of the record of appeal). For the avoidance of any doubt, the Respondent’s paragraph 3 – 8 of his statement of claim (See pages 2-3 of the record of appeal) are hereby reproduced, thus:
3. The claimant sometime in 2012 purchased a piece of land from one Ibrahim Hussaini at the price of Two Hundred and Ten Thousand Naira (210,000.00) only and immediately took possession.
4. The claimant since the purchase has been enjoying quiet possession of his property without any disturbance from anybody.
5. Ibrahim Hussaini from whom the claimant purchased this land also got his title and possession from one Dangara Dandu G/Gaji.
6. Dangara Dandu G/Gaji is among the owners of this large farm land in Gwadangaji, which was acquired and a layout was made from it by the Kebbi State Government and after the layout; the Kebbi State Government gave the disputed plot to Dangara for residential purposes.
7. The Kebbi State Government issued out a statutory right of occupancy no: B1/G/11748 to Dangara Dandu who on his sale of the land to Ibrahim Hussaini transferred his title and the letter of grant to Ibrahim Hussaini.
8. Ibrahim Hussaini also sold out this land to the claimant on 28th September, 2012 with an agreement written in Hausa language and also gave the claimant the original letter of grant no: B1/G/11748 in respect of the land.” (See the statement of claim in pages 2-3 of the record of appeal).
It is interesting to note that the PW1 and the PW2 in their witness depositions made in support of the averments in the Respondent’s statement of claim (see page pages 2-4 of the record of appeal) and (see pages 6-7 the record of appeal) and (pages 8-9 of the record of appeal) respectively, along with EXHIBITs A – A1 and B, it is rather glaring that the Respondent clearly identified the parcel of land in dispute and established his root of title in accordance with the decision of AYANWALE vs. ODUSAMI [2012] 3 WRN 1 [P.19] LINES 5-45.
On the vexed question of whether the Respondent succeeded in defining his boundary neighbours through his pleadings and in his oral evidence to that effect, it is perhaps, important to state here that this Court is in agreement with learned Respondent’s Counsel that the issue of proof of identity of a disputed parcel of land only arises when a Defendant disputes the identity of the land in dispute or where the Defendant does not know the land in dispute. It is instructive to note that from the state of pleadings in this matter, it is clear that the issue of the identity of the land was never in dispute as parties tended to know of the identity of the parcel of land. In NWOBODO EZEUDU & ORS vs. ISAAC OBIAGWU (1986) 2 NWLR (PT. 21) 208 at 220 the apex Court, Per OPUTA, JSC spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said:
“The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”
It is instructive to note at this stage that despite the clear and settled position of the law on the subject vis-à-vis the Appellant’s clamour on the issue and which the Appellant made a heavy weather of, the Respondent still went ahead and proved the identity of the land through the tendering of his EXHIBITS A – A1 and B, which described and identified the parcel of land by stating the boundary neighbours, which he mentioned as Plots 3 and 4, which coincidentally belonged to the Appellant. For the avoidance of any doubt the Respondent’s paragraphs 12 – 15 of his statement of claim (See page 3 of the record of appeal) are hereby reproduced thus:
“(12). Plots no 28, 29, 30, 31, 32, 33, 34, 35 and 36 are all residential layout while plots nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9 are commercial layouts laying by the main road side.
(13) The disputed plot is plot no. 34 belonging to the claimant which is bordered by plots no. 33, 35, 3 and an access road.
(14) The defendant is the owner of plot nos. 3 and 4 which are commercial plots.
(15) The defendants while constructing fence on plot nos. 3 and 4 entered in to plot no. 34 by demolishing the claimant’s wall and erecting his own by extending the size of his plot.”
Having come thus this far, on the flip side of this case, it is rather instructive to note that the Court below in its judgment refused to attach any weight to Appellant’s only EXHIBIT 1 tendered by the Appellant in order to establish its claims to the parcel of land in dispute. (See page 65-67 of the record of Appeal). The result of this is that the sum total of the evidence adduced in the preponderated to the Respondent, hence Judgment was entered in favour of the Respondent based on the only admissible valid evidence.
On the question of the reliance placed by the Appellant on the provision of Order 1 Rule 9 of the Kebbi State High Court (Civil Procedure Rules) 2017, and the decision in GUNDIRI vs. NYAKO (Supra) in arguing that PW1 and PW2 who could not speak or understand English cannot make such depositions adopted in their witness statements on oath, in agreement with learned Respondent’s Counsel the position of the law is that the Illiterates’ Protection Act is meant to protect an illiterate and does not have to be made to work against him. The position is that if at all there has to be a complaint arising from the non-compliance with the provision of the Act, it has to be one made by the PW1 and PW2 who are expected to be the ones to be protected by the Act and not the Appellant. See the decision of this Court in the case of ISIN vs. EDEM & ANOR (2018) LPELR- 44046 (CA) per ADAH, JCA where he had this to say on the subject:
“The intendment of the Illiterates’ Protection Law has been well analyzed in some cases decided by the Supreme Court. In FATUNBI & ANOR vs. OLANLOYE & ORS (2004) 12 NWLR (PT. 887) 229, Pats-Achonolu, JSC held: “It needs be emphasized that the provision in Section 3 (Supra) is intended for the protection of the illiterate person. Essentially, it is equally to trace the whereabouts of the maker of the statement. Care must be taken that we do not put in the intendment of that provision what is not intended to accomplish. It is to ensure that what is stated there reflects what the illiterate person has stated and intended to be correctly put in such a document, and he is the only person to complain if that is not the case. Thus, in EDOKPOLO & CO. LTD vs. OHENHEN & ANOR (1994) 7 NWLR (PT. 358) 511 @ 525, the Supreme Court per Iguh, JSC, held: ‘It ought also to be noted that Section 3 of that law only raises or provides certain presumptions of law in respect of a document prepared at the request of an illiterate by any person who shall write such a document his own as the writer and his address…..The purpose of the said provisions under Section 3 of the law is also to ensure in furtherance to the said protection of illiterate that the writer of such document is identified or traced”. Implicit in that Section is that where there exists a doubt or a denial as to the correct statements that were made by the illiterate, the writer will be traced to show whether the contents of the document represent the veracity of what the illiterate asserts. In other words, the protection singularly inures only to the illiterate. See DJUKPAN vs. OROVUYOVBE (1967) 1 ALL NLR 134 @ 140 and ANYABUNSI vs. UGWUNZE (1995) 6 NWLR (PT. 401) 225 @ 272.2.” See also, the case of WILSON & ANOR vs. OSHIN & ORS (2000) 9 NWLR (PT. 673) 442. It is clear and certain that the Illiterates Protection Law is intended for the protection of an illiterate person. This protection is essentially to prevent the literates from taking undue advantage of the illiterates in their intention to convey their property away. The law makes it mandatory for a jurat on the document wherewith the witness’ name and identity can be verified in case of any dispute as to whether what was written down tallies with what the illiterates asserts. The protection is personal and it inures only to the illiterates. It is therefore the illiterate involved that can raise issues of his protection under the law. The Appellant in the instant case not being the illiterate is therefore not having the locus to raise the issue.”
The foregoing notwithstanding, this Court also agrees with learned Respondent’s Counsel when he argued that the judgment of the apex Court in GUNDIRI vs. NYAKO (Supra) is distinguishable from the instant case. It would be recalled that in the case of GUNDIRI vs. NYAKO (Supra) the witness deposition in English Language adopted by the witnesses were witness statements translated into English by one faceless SUNDAY MATHEW who was the interpreter who translated the statements made in Hausa into English and who was not a legal practitioner employed by the witnesses. But, in the instant case the witness depositions complained about were translated by a legal practitioner employed by the witnesses, (one RILWANU M. BUHARI ESQ.,) (See list of Counsel on page 5 and translator on page 7 and 9 of the record of appeal) who worked in accordance with the directives of his client. This, of course clearly Counsel distinguished the instant case as the name: “SUNDAY MATHEW” (a non lawyer) interpreter, is an exception to the rule on documents under the Illiterates’ Protection Act. See the case of EDOKPOLO & CO. LTD vs. OHENHEN & ANOR (1994) LPELR-1016, where the Court held the view that documents prepared by lawyers are exceptions under the Illiterate’s Protection Act.
On the contention of the Appellant that the Appellant’s Exhibit Defence 1 (CTC of C. of O.) tendered by the Appellant in proof of its claims to ownership of the parcel of land in dispute was issued in 2005 while Exhibit B, the Letter of Grant tendered by the Respondent was issued in 2008 and in essence, that the Appellant got the land before the Respondent; it would however, be recalled that the Court below, while evaluating this claim of the Appellant, relied on a number of decided cases on the subject, notable of which, is the case of ARAKA vs. EGBUE (2003) 17 NWLR (PT. 171) 614. Here the Court below held that a photocopy of a certified true copy of the certificate of occupancy tendered by the Appellant as Defendant, being a public document needs to be re-certified before it could be admissible in evidence. (See page 67-69 of the record of Appeal).
Unfortunately, the Appellant did not appeal against the findings of the Court below not only in respect of this issue but also in respect of several other findings. The sum total of this shortcoming on the part of the Appellant, on these issues is that it does not literarily lie in the mouth of the Appellant here on Appeal to raise arguments on these issues as he is taken to have accepted the findings as correct. See the case of OPARA vs. DOWEL SCHLUMBERGER (NIG.) LTD & ANOR (2006) LPELR-2746 (SC) where the apex Court per ONNOGHEN, JSC had this to say on the subject:
“It is also settled law that where a party fails to appeal against a finding of the trial Court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court, the essence of an appeal being to have an opportunity to have one’s suit re-examined before a higher Court. In effect the failure of the appellant to appeal against the decision of the trial Court refusing an order of specific performance is that that decision remains binding and conclusive between the parties – see Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 at 4. In Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140 it was held by this Court that where the trial Court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.”
Against the backdrop of the foregoing, this Appeal is moribund as it lacking in merit and it is accordingly dismissed. Consequently, the judgment of the Kebbi State High Court, sitting at Birnin-Kebbi in Suit No: KB/HC/25/2015 delivered on 13th December, 2017 Coram: S. H. BASHIR, J is hereby affirmed. Cost of the sum of N100, 000.00 is awarded against the Appellant in favour of the Respondent.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment just delivered by my learned brother, Oho, JCA. I agree and support it. I adopt the reasonings and conclusions of my learned brother to also dismiss the appeal for being totally devoid of any merit. I abide by all the consequential orders in the lead judgment.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother FREDERICK O. OHO JCA.
I am in entire agreement that the appeal is lacking in merit and ought to be dismissed. I also dismiss the appeal and abide by the consequential order in the lead judgment.
Appearances:
MAGNUS IHEJIRIKA ESQ. For Appellant(s)
HUSSAINI ZAKARIYAU ESQ. For Respondent(s)
