PAUL MBODAN v. SILAS N. DABAI
(2019)LCN/12734(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of February, 2019
CA/YL/47/2018
RATIO
LAND LAW: PROOF OF TITLE TO LAND
“A party in a civil case must prove his/its case on credible evidence of his/its witnesses and is not at liberty in law to make a case or rely on the weakness of the defendant’s case in order to succeed. See Daodu vs. NNPC (1998) 2 NWLR (Pt. 538) 355 and Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65. Since 1976 when Idundun vs. Okumagba was decided by the Supreme Court, the Courts have held that title to land can be established by traditional evidence; (2) Production of documents of title duly authenticated in the sense that their due execution must be proved; (3) By positive acts of ownership extending over a sufficient length of time; (4) By acts of long possession and enjoyment of the land; (5) 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 owner of the land in dispute. The law is that the establishment of one of the ways enumerated above is sufficient proof of ownership of the land. See Idundun vs. Okumagba (1976) 9 – 10 SC 337, Ayoola vs. Odofin (1984) 11 SC 120 and Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31.” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
PAUL MBODAN Appellant(s)
AND
SILAS N. DABAI Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment delivered on 31st July, 2017 in the High Court of Adamawa State sitting at Yola. The Respondent was the plaintiff in the High Court (Court below). The Appellant was the defendant.
The claim of the Respondent against the Appellant was for a declaration of title to the land in dispute, an order of perpetual injunction, general damages and costs of filing the suit.
The facts of the case are simple and short. In summary, they are as follows: According to the Respondent, the vast parcel of land of which the land in dispute is a part was first cleared by his father between 1980 and 1983. Before the father of the Respondent cleared the land, he consulted and notified the elders of the area of his intention to acquire it as no one had ever cleared or cultivated the said land. Consent of the elders having been obtained Respondent’s father cleared the land. After clearing the virgin land, the Respondent’s father exercised exclusive right of ownership of the land and had given a portion of it to Living Faith Church to erect a structure thereon before the Appellant trespassed into the land.
The Appellant denied the claim of the Respondent. According to the Appellant the land was originally deforested and converted into a farmland by Sunoma in the early 1960s.
Upon the death of Sunoma who had no child of his own, he (Appellant) inherited the land in accordance with Kilba custom.
In 1982, the father of the Respondent came with a bulldozer owned by government and cleared a vast land belonging to several people including the disputed land which belonged to the Appellant under the pre that the erstwhile Gongola State Government had acquired the land for agricultural purposes.
As law abiding citizens, the Appellant and other people whose lands had been cleared by the Government bulldozer waited patiently for compensation from the Government and to see what Government was going to do with their respective lands.
Then they realized that Gongola State Government did not acquire their lands.
The Appellant’s land was delivered to him by the Respondent’s father on the intervention of the traditional ruler.
The Respondent’s father never claimed Appellant’s land again until his death in 2014.
That the only piece of land that was not owned by anybody as at 1982 in Bangshika was the piece of swampy land given to Living Faith Church. The Respondent’s father was not challenged for giving the swampy piece of land to the Living Faith Church because it was swampy and nobody was farming it.
The Court below considered the evidence adduced by both parties as well as written addresses of counsel to the parties and entered judgment in favour of the Respondent.
The Appellant has approached this Court by a notice of appeal dated and filed 26th January, 2018. The notice of appeal contains five grounds of appeal.
From the five grounds of appeal, the Appellant presented the following two issues for determination:
1. Whether the plaintiff/respondent proved title to the disputed land in accordance with his pleadings and as required by law in the circumstances of this case to justify the judgment of the trial Court which conferred title to the disputed land on him? (Distilled from grounds 1, 2 and 5 of the grounds of appeal).
2. Whether the plaintiff/respondent proved trespass to the disputed land against the defendant/appellant as pleaded in his statement of claim and as required by law to justify the award of damages for trespass that was made in his favour by the learned trial Judge? (Distilled from ground 3 of the grounds of appeal).
We abandoned ground 4 of the grounds of appeal.
The Respondent presented the following two issues for determination:
‘Whether the trial Court was right when it entered Judgment for the Plaintiff on the pleadings and evidence before it in respect of the land in dispute.’
Grounds 1, 2 and 5 of the grounds of appeal.
‘Whether the Trial Court was right when it awarded the sum of N200, 000.00 as general damages for trespass against the Defendants in favour of the Plaintiff in this suit.’
Ground 3 of the grounds of appeal.
Ground 4 of the grounds of appeal was abandoned and is hereby struck out.
Although the issues presented for determination are similar, I will determine the appeal on the issues formulated by the Appellant.
Arguing issue 1, learned counsel for the Appellant submitted that the burden of proof is on the plaintiff to prove his case on the balance of probabilities and he must succeed on the strength of his case and not on the weakness of the defence. The Court was referred to Okonkwo vs. Okonkwo (1998) 7 SCNJ 246 and Daodu vs. NNPC (1998) 1 SCNJ 95.
It was submitted that the Respondent failed to prove his title to the land in accordance with the pleadings and as required by law.
It was submitted that parties are bound by their pleadings and a party is not permitted to abandon the root of title pleaded by him and testify in proof of title that is not pleaded.
It was submitted that the evidence of PW3 that he was present when his father consulted the elders in 1981 as to ownership of the land before he went and brought a bulldozer in 1981 is inconsistent with the evidence of PW1 at page 130 line 33 to page 131 lines 1 – 2 of the record that he was 18 years old when the bulldozer came to clear the land. That the bulldozer came to clear the land in 1980 and he was born in 1968 because as at 1981 the Respondent?s father was allegedly making consultations as to whether the land belonged to somebody or not.
The bulldozer according to PW1 had already cleared the land in 1980. This, it was submitted, is at variance with the pleading of the Respondent that the bulldozer cleared the land in 1982.
It was submitted that the PW2 deposed in paragraph 10 of his written statement on oath that the elders consulted by the Respondent’s father were Bello Chabziya and Yerima Thomas but stated under cross examination at page 131 lines 15 – 16 of the record that the Respondent?s father never asked anyone about the land in the following words;
‘Nathaniel the father of the plaintiff did not ask anyone about the disputed land.’
That PW2 also stated under cross examination at 131 lines 11 – 14 of the record of appeal that he was one of the elders that was consulted by the Respondent?s father as to the ownership of the land but that he forgot to include his name in his written statement on oath as one of the elders that was consulted by the father of the Respondent.
Further, that although the Respondent pleaded that the land was founded in 1982, PW1 under cross examination, stated that the land was cleared with a bulldozer in 1980. The Court was referred to page 130-line 33 page 131 lines 1 – 2. PW1, it was submitted, was contradicted by PW2 when he testified that the bulldozer was brought to the land in 1982. The Court was referred to page 131 lines 16 – 17 of the record of appeal.
It was submitted that the Respondent led evidence that was at variance with the pleadings as to his root of title.
It was further submitted that the testimonies of the Respondent?s witnesses as to the boundary men and features of both the vast expanse of land that was allegedly cleared by the bulldozer and of the portion in dispute were contradictory as to the directions in which they shared boundary with the disputed land.
It was submitted that pieces of evidence that are contradictory, remain contradictory whether or not there is a visit to the locus in quo.
It was submitted that Bello Chabziya and Yerima Wakili Thomas who PW2 said were the people Respondent?s father contacted were not called to testify and no reason was given for not calling them. PW2, it was further submitted, was one of the elders consulted but that he forgot to mention his name.
Learned counsel for the Appellant wondered if PW2 who was 35 years in 1982 could be described as an elder then.
On issue 2, learned counsel for the Appellant submitted that while the Respondent led no evidence as to the type of farming activity that constituted trespass complained of, the Respondent as PW3, gave evidence that was at variance with the pleadings when he said;
‘The defendant never farmed on the disputed land even for one minute.’
It was submitted that since the trespass to the land that was pleaded by the Respondent against the Appellant was by farming activities ?to the chagrin and annoyance? of the Respondent and the testimony of the Respondent as PW3 under cross examination was that the Appellant has never farmed on the land even for one minute which is at variance with the pleading, the acts of trespass pleaded were not proved.
On issue 1, learned counsel for the Respondent submitted that in action for declaration of title as in this case the plaintiff is required to prove this in any of the five ways recognised by the Courts. The Court was referred to Awodi & Anor vs. Ajagbe (2009) All FWLR (Pt. 454) 1 – 13 at 1438 – 1439, Arum vs. Nwobodo (2013) All FWLR (2013) All FWLR (Pt. 673) 1991.
It was submitted that the Respondent proved title by four out of five ways of proving title to land. These are (a) By traditional evidence (b) Acts of long possession and enjoyment of the land (c) By acts of selling, leasing and renting out all or part of the land or farming on it or on a portion of it (d) Proof of possession of connected or adjacent land.
The Respondent, it was submitted, gave evidence of who founded the land, how it was founded. That the Respondent cleared the land with earth moving machines farmed on it and gave portions to PW1. That the Respondent gave a portion of the land to Living Faith Church Bangshika, and planted economic trees on the land.
These pieces of evidence, it was submitted, were not challenged or contradicted under cross examination thereby leaving the trial Court with no option other than to accept and believe the evidence as required by law. The Court was referred to Fatilewa vs. The State (2007) All FWLR (Pt. 437) 695 at 721 – 722 and Nwaogu vs. Atuma (2013) All FWLR (Pt. 693) 1893.
On the alleged contradictions in the evidence of PW1, PW2 and PW3, it was submitted that what is evident from the evidence of these witnesses is that it was after the Respondent’s father sought the consent of the District Head and elders of the village that he brought the earth moving machines to clear the land in dispute.
It was further submitted that evidence led was not at variance with the pleadings because the PW2 mentioned the names of the elders consulted by the Respondent?s father but did not mention his name as one of the elders as the word elders could include the PW2.
It was submitted that PW2’s evidence cannot be said to be at variance with the pleadings.
On the evidence of PW1 to the effect that the land was cleared in 1980, the Court was referred to his evidence in chief where the witness said the land was cleared between 1980 and 1983. It was submitted that this is not a material contradiction. The Court was again referred to Owie vs. Ighiwi (2005) All FWLR (Pt. 248) 1762 at 1789. The Court was urged to hold that 1980 stated without more is not fatal to the case of the Respondent.
It was submitted that the PW1, PW2 and PW3 did not contradict themselves as to boundarymen and features on the land and the boundarymen mentioned by the PW1, PW2 and PW3 are the same. The direction may differ, it was submitted, as a result of comprehension of cardinal points.
It was submitted that the issue of whether PW1 was the real Yerima Mishikir should be discountenanced because the issue was not canvassed in the Court below and no leave of either the Court below or this Court was sought to argue same.
The witness, it was submitted, was not cross examined as to whether or not he signed the written statement on oath.
On the failure to call Bello Chabziya and Yerima Wakili Thomas to testify, it was submitted that a party is not required to call a host of witnesses or a particular witness in so far as the witness or witnesses called can establish his claim. The Court was referred to MTN Communication Ltd vs. Amadi (2013) All FWLR (Pt. 670) at 1348.
It was submitted that one of the elders, that is, the PW2 was present when the father of the Respondent consulted the elders and he was not cross examined as to whether he was the village head at the time the Respondent?s father consulted the elders.
On issue 2, it was submitted that the Respondent had proved title to the land in dispute and established that the Appellant had unlawfully entered into the land in dispute. The Court was referred to paragraph 21 of the statement of claim. The Appellant, it was submitted, did not deny paragraph 21 of the statement of claim. Therefore, the averment is deemed admitted. It was submitted that where paragraphs in a statement of claim are not controverted, the paragraphs ought to be deemed as having been admitted. The Court was referred to Bayam vs. Agana (2013) All FWLR (Pt. 687) 763.
It was submitted that the Appellant admitted trespass in the statement of defence. We were referred to paragraph 14 of the statement of defence and paragraph 12 of the statement on oath of the Appellant.
By virtue of Sections 133 and 134 of the Evidence Act, 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 the preponderance of evidence and balance of probabilities. A party in a civil case must prove his/its case on credible evidence of his/its witnesses and is not at liberty in law to make a case or rely on the weakness of the defendant’s case in order to succeed. See Daodu vs. NNPC (1998) 2 NWLR (Pt. 538) 355 and Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65.
Since 1976 when Idundun vs. Okumagba was decided by the Supreme Court, the Courts have held that title to land can be established by traditional evidence; (2) Production of documents of title duly authenticated in the sense that their due execution must be proved; (3) By positive acts of ownership extending over a sufficient length of time; (4) By acts of long possession and enjoyment of the land; (5) 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 owner of the land in dispute. The law is that the establishment of one of the ways enumerated above is sufficient proof of ownership of the land. See Idundun vs. Okumagba (1976) 9 – 10 SC 337, Ayoola vs. Odofin (1984) 11 SC 120 and Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31.
Relief 1 of the claim of the Respondent is for a declaration that the heirs of Nathaniel Dabai and himself are entitled to the land in dispute. Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. A declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. It is a requirement of the law that the person seeking the declaratory relief must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. Such declaratory relief is not granted even on admission by the defendant. However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the plaintiff?s title. See Anyanru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR-864 SC page 64 – 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184.
At page 198 to 199 of the record of appeal the Court below made the following findings:
‘I have taken a calm look at the written statements on oaths of DW1 – DW3 and I have found out all of them were recorded in Hausa language and later on translated into English. In all the written statements there are no Jurats even though under cross examination. DW1 emphatically stated that he could neither read nor write in English, while the other two witnesses DW2 and DW3 admitted writing their statement on oath in Hausa language and later on translated to English.
In Gundiri vs. Nyako & 7 Ors. (supra) the Apex Court have spoke in thus:-
‘Where a witness as an illiterate has made his statement in a foreign language as in the instant case, in the Hausa language, both the statement in a foreign language and the English translation thereof have to be tendered together and in that case, the Jurats so provided in respect of the statements must be signed by an interpreter who recorded the statement. In the instant case, the evidence of about 22 PW who are illiterates and needed to be protected under the Illiterates Protection Act was rightly rejected by the Tribunal and confirmed by the lower Court for their inadmissibility in evidence for non-compliance with the Illiterates Protection Act.’
The Apex Court having spoken, this Court has to bow to the powerful wisdom of my Law Lords. Consequently, I hold that since the Defendant witnesses written statements on oath were written in Hausa language and later on translated into English version both ought to have been filed alone which was not done in the instant case. To this extent the written statements on oath of DW1, DW2 and DW3 are hereby discountenanced with. Having discountenanced with the written statements on oath there is therefore no gain saying that the pleadings of the Defendant are left bare and thus deemed abandoned. The effect is that the Plaintiff?s case has become one sided on the imaginary scale of justice. However, it is not yet over until it is over. The Plaintiff?s pleadings must be supported with evidence to entitle him to the reliefs sought.
I have earlier on before now scrutinized the Plaintiff’s pleadings in greater details alongside the testimonies of PW1, PW2 and PW3, the visit to the locus in quo and the final written address of learned counsel to the Plaintiff and I hold that the Plaintiff is able to proof his claims by preponderance of evidence. He has not only proved title to the land by one laid down method but forged ahead to prove by four different ways. Where a Plaintiff pleads and/or relies on more than one method to prove his title he merely does so exabundanti cautela as proof of one single root of title is sufficient to sustain a Plaintiff’s claim for declaration of title to land see the case of Balogun vs. Akanji (1988) Vol. 19 1 NSCC 1801 (1988) 1 NWLR (Part 70) 301.
Confronted with the above obstacle, learned counsel for the Appellant has proceeded to pick holes in the evidence of the Respondent?s witnesses. He has sought to show that the evidence led by the Respondent was at variance with the pleadings of the Respondent and that there were contradictions in the testimonies of the witnesses called by the Respondent. The Courts have held that discrepancies are to be expected in the evidence of witnesses and that their absence is the usual accompaniment of a concocted story.
Imperfection in human recollection is quite normal. Moreover, among primitive people it is often more important to consider the whole story than the detailed account. See Oposi vs. State (1971) 1 NMLR 315.
Under cross-examination, Respondent’s witnesses did not satisfy Appellant’s counsel as to which of the neighbouring farms was where. For example, which was to the North, East, South and West. With respect to learned counsel for the Appellant, the directions were not pleaded and not mentioned in the statements on oath of witnesses. That is not surprising. This is because where North, South, East and West are is rather too scientific for many a witness. It was to this murky area that Appellant’s counsel dragged the witnesses into. If they could not see their way clear that did not discredit them.
Learned counsel for the Appellant also argued that Bello Chabziya and Yerima Wakili who PW2 said were consulted by Respondent?s father were not called to testify and no reason was given for not calling them. These two persons were not mentioned by name in the pleadings. Therefore, the Respondent was not bound to call them. See Amida vs. Oshoboja (1984) 7 SC 65 at 88. In any case, PW2 stated that he succeeded Bello Chabziya as village head. ?
That in itself explains why the said Bello Chabziya would not be called as a witness since PW2 who succeeded him testified in Court.
Whether PW1 was the real Yerima Mishikir was not an issue before the Court below and the Appellant has not sought leave to raise it before this Court. See Section 242 (1) of the 1999 Constitution, FRN.
In paragraph 10 of the statement of claim the Respondent pleaded that the land was cleared in 1982. PW3 who may be referred to as the star witness for the Respondent in his written statement on oath stated that the land was cleared between 1980 and 1983. Under cross examination he said the land was cleared in 1982. PW1 also in his written statement on oath stated that the land was cleared between 1980 and 1983. Under cross examination he said it was cleared in 1980. PW2 both in his written statement on oath and under cross examination said the land was cleared in 1982.
The Appellant in paragraph 12 of the statement of defence admitted paragraph 17 of the statement of claim that the land was cleared in 1982.
1980 or between 1980 and 1983 referred to by PW3 and PW1 is at variance with 1982 pleaded in the statement of claim.
But these dates referred to by PW3 and PW1 are minor discrepancies which go to show that the story of the witnesses called by the Respondent was not concocted. As I have shown earlier, if these witnesses were in doubt as to the date the land was cleared and which was pleaded in paragraph 17 of the statement of claim, the Appellant confirmed the date pleaded in the statement of claim in his statement of defence paragraph 12.
Learned counsel for the Appellant sought to show that the PW3 and PW2 were unreliable witnesses. According to learned counsel for the Appellant, PW2 said that he was one of the elders that the father of the Respondent consulted before he cleared the land but forgot to include his name in his statement on oath. This evidence did not do violence to the case of the Respondent because the names of the elders that were consulted were not pleaded. See Amida vs. Oshoboja (supra). The PW3, learned counsel for the Appellant pointed out, said he was present when his father consulted the elders in 1981. I do not see anything wrong with this evidence because the PW3’s father must have consulted the elders, and received their blessing to clear the land before doing so in 1982.
It was pleaded and evidence was given that the Respondent’s father consulted the elders before clearing the land. Also, it was pleaded and evidence led to show that the Appellant farmed on the land. See evidence of PW1 at page 12 and PW3 at page 18 of the record.
Considering the pleadings and the entire evidence led by the Respondent the evidence of PW2 and PW3 under cross examination that the Respondent’s father did not ask anyone about the disputed land or that the Appellant never farmed on the land has not done any violence to the case of the Respondent. As shown earlier in the judgment, among uneducated people it is often more important to consider the whole story than the detailed account. See Oposi vs. State (supra). In the instant case, the response of the PW3 that the Appellant had never farmed on the land must have meant that the Appellant had never farmed on the land before the alleged trespass into it.
The Respondent led evidence to show that he cleared the land, was farming on it and giving portions to other people for example PW1 to farm.
He also gave a portion of the land to a Church, Living Faith Church. The Appellant admitted in paragraph 22 of the statement of defence that the Respondent gave a portion of the land to the Living Faith Church.
Issue 1 is therefore resolved against the Appellant and in favour of the Respondent.
The Respondent pleaded in paragraph 21 of the statement of claim that the Appellant entered the land and was farming. PW1 and PW3 in their evidence in chief deposed to this fact. PW1 and PW3 also said that when the Appellant trespassed into the land, he was reported to the village head. That he was invited by the village head twice but did not go. PW2 confirmed the story of the PW1 and PW3 that he invited the Appellant twice and he did not go. This fact was pleaded in paragraph 20 of the statement of claim and admitted in paragraph 26 of the statement of defence. PW1 was not cross examined as to whether or not the Appellant and his family members were carrying out farming activities on the land.
It is clear from the foregoing that issue 2 should be resolved against the Appellant and in favour of the Respondent.
Both issues having been resolved against the Appellant and in favour of the Respondent, this appeal is dismissed.
The judgment of the Court below in Suit No ADSY/117/2016 is hereby affirmed.
Respondent is awarded N50, 000.00 costs which shall be paid by the Appellant.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal just delivered by my learned Brother, James Shehu Abiriyi, JCA.
I agree with His Lordship?s line of reasoning and the conclusion reached by him that the appeal is devoid of merit. In the same light, I dismiss the appeal and abide by the consequential orders made in the said leading judgment, including that of costs.
SAIDU TANKO HUSSAINI, J.C.A.: I have had the privilege of reading in advance the lead judgment just delivered by my Lord, James Shehu Abiriyi, JCA and agree with him that this appeal should be dismissed with cost as assessed.
Appearances:
M. D. Mohammed with him, Roland C. Emem
For Appellant(s)
Sule J. Abul Esq. with him, Mhen Philip AtsevFor Respondent(s)
