SHERIFF USMAN v. NASIRU AUDU BABA (2013)

SHERIFF USMAN v. NASIRU AUDU BABA

(2013)LCN/6439(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of July, 2013

CA/YL/14/2012

RATIO

DUTY OF COURT: WHETHER THE DUTY TO ASCRIBE PROBATIVE VALUE TO THE EVIDENCE OF WITNESSES IS VESTED IN THE TRIAL COURT

The law is trite that ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court that saw and heard the witnesses, and an appellate court will not interfere with findings of facts except where wrongly applied to the circumstances of the case or conclusion reached was perverse or wrong. Where the trial court fails to make findings on material and important issues of facts by brushing them aside or approaches the evidence called by the parties wrongly, the appellate court will have no alternative that to act accordingly as the circumstances dictates. See Okoye V. Obiaso (2010) 8 NWLR (Pt.1195) 145, Sapo V. Sunmonu (2010) 11 NWLR (Pt.1205) 374, Akinola V. Oluwa (1962) SC NLR 352, Federal Commissioner for Works & Housing V. Lababebi (1977) 11-12 SC. 15, Kuforji V. VYB. Nig Ltd (1981) 6-7 SC40, Ezeafulukwe V. John Holt (1996) 2 NWLR (Pt.432) 511.

The legal effect of a witness who testifies in an earlier proceeding between parties in the same subject-matter, and who turns around to say a different thing in a different court is that it affects the credibility of the witness and renders his evidence unreliable, which evidence must be rejected. See Omerede v. Eleazu (1996) 6 NWLR (Pt.452) 1, Ogoala V. State (1991) 2 NWLR (Pt.175) 509, Ayo Gabriel V. The State (1989) 12 S.C.N.J 33 @ 42. PER SOTONYE DENTON WEST, J.C.A.

ON WHOM LIES THE BURDEN OF PROOF IN A LAND MATTER?

The law is settled that in land matter, the burden of proof is on the party who claims title to ownership. Before title is declared on the party claiming it, the land which it relates to, must be ascertained with certainty. The onus is on the Plaintiff to prove title to a defined area to which a declaration can be attached and failure of the plaintiff to prove the boundaries of the land he is claiming is fatal to his case and the proper order which the court should make in such circumstances is usually one of dismissal of the claim.

See OLODO V. JOSIAH (2011) 190 LRCN PAGE 34 AT 42 RATIO 8, OGEDENGBE & ORS v. BALOGUN (2007) LRCN PAGE 153 AT 197 RATIO 2, 3, 4. PER SOTONYE DENTON WEST, J.C.A.

WHETHER IN A LAND MATTER, THE PLAINTIFF SEEKING A DECLARATION OF TITLE HAS THE BURDEN TO ESTABLISH THE PRECISE IDENTITY OF THE LAND.

The onus is on the plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration.

See Gbadamosi v. Dairo (2007) 3 NWLR (Pt.1021) 282, Akinterinwa v. Oladunjoye (2000) 6 NWLR (Pt.659) 92, Adesola v. Akinde (2004) 12 NWLR (Pt.8877) 295, Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208, Fatuade V. Onwoamanam (1990) 2 NWLR (Pt.132) 322, Okochi V. Animkwoi (2003) 18 NWLR (pt. 851) 1, (2003) 2- 3 S.C. 65 Baruwa V. Ogunsola (1938) 4 WACA 159, Udeze V. Chidebe (1990) 1 NWLR (Pt. 125) 141, Aboyeji V. Momoh (1994) 4 NWLR (pt. 341) 646. PER SOTONYE DENTON WEST, J.C.A.

WHETHER A PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE MAY SUCCEED ON THE WEAKNESS OF THE DEFENDANT’S CASE

It is a settled position of the law that a plaintiff can only succeed in an action for declaration of title on the strength of his case, and not on the weakness of the Defendant’s case except where the weakness of the case of the defendant re-in forces and strengthens the case of the plaintiff. The extension of this principle is that the court will not declare title to the Plaintiff who has not offered any evidence in support of the declaration sought.

See AJA v. Okoro (1991) NWLR (Pt. 203) page 260 @ 265 ratio 9, Mrs Oluwaseun Agboola v. UBA Plc. (supra) page 208 @ 214 ratio 22, Aremu v. Adetoro (2007) 16 NWLR (Pt.1060) 244. Ezeigwe v. Awudu (2008) 11 NWLR (pt.1097) 158, Iroagba v. Ufmadu (2009) NWLR (Pt.1153) 587, Ashabi Eya & v. Alhaja Risikatu Olopade 7 Anor (2011) LPELR-1184. PER SOTONYE DENTON WEST, J.C.A.

WHETHER THE PRODUCTION OF A DEED OF CONVEYANCE AUTOMATICALLY ENTITLES A PARTY TO A DECLARATION OF TITLE TO THE LAND IN DISPUTE

The law is trite that mere production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration. Before a document is admitted as sufficient proof of ownership, the court must satisfy itself that the grant has the effect claimed by the holder of the instrument. See the Supreme Court decision in the case of MRS OLUWASEUN AGBOOLA VS. UBA PLC. & ORS (2011) 3 S.C.N.J Page 208 of 215 ratio 9. PER SOTONYE DENTON WEST, J.C.A.

JUSTICES

SOTONYE DENTON WEST (PJ) Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGWE IGNATIUS AGUBE Justice of The Court of Appeal of Nigeria

Between

SHERIFF USMAN – Appellant(s)

AND

NASIRU AUDU BABA – Respondent(s)

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of His Lordship, Justice Y.A Bashir of the High of Court of Taraba State in suit no: TRSJ/8/2009 delivered on the 25th May, 2010. The plaintiff’s herein the Respondent’s claim for the declaration of title over a piece of land and other ancillary reliefs were granted by the trial Court against the Defendant herein the Appellant. Being dissatisfied with the whole decision, the Appellant filed a notice of Appeal containing 7 grounds of appeal against the said decision.

The Respondent who was the plaintiff at the trial lower court had taken out a writ against the Appellant as the Defendant claiming the following reliefs:

1. An order of declaration that the plaintiff is the person rightly entitled to be declared the owner of the piece of land measuring 2700 square metres covered by a certificate of occupancy no: TS/118 lying and situated at TSJP 3 layout on plot no: 6 (E) road in Nyama salla ward Jalingo town.

2. An order of declaration that the entry of the Defendant on the plaintiff’s land and the erection of the fence thereon amount to acts of trespass.

3. An order upon the Defendant to remove or demolish the fence unlawfully erected on the plaintiff’s land.

4. An order of perpetual injunction restraining the Defendant by himself his heirs, assigns, privies, successors or any person laying claim of title or ownership upon the plaintiff’s land through him from further acts of trespass.

5. The sum of N1, 000,000.00 general claimages for trespass.

6. Costs of filing and prosecuting the suit.

See pages 1 – 6 of the records of appeal.

Pleadings were ordered, filed and exchanged. The matter proceeded to trial and the Respondent testified himself and called (a) four other witnesses and tendered (7) Exhibits, viz: PE1, PE2, PE3, PE4, PE5, PE6 and PE7.

The Respondent’ claim to the disputed land at the trial lower court was based on a certificate of occupancy granted to his assignor and by a deed of assignment dated 14th August, 1996, the land was sold and transferred to him.

The Respondent further claimed that prior to the acquisition of the land in dispute, the land was originally owned by one Abba upon whose death Umaru Abba (PW4) inherited the land and later sold same to Mallam Saidu (the father of PW1) from whom the Taraba State Government acquired the land and paid compensation.

Nevertheless, the Appellant on his own part denied the Respondent’ claim and led evidence by himself and one other witness as DW1 and DW2 respectively to the effect that the disputed land was originally, the property of one Nuhu Mading who inherited same from his father and later sold it to the Appellant’s vendor, Ibrahim Aliyu Yawuri. The Appellant tendered three (3) Exhibits viz: Exhibits DE1, DE2, and DE3. At the close of the case, judgment was found in favour of the Respondent to the effect that the certificate of the occupancy (Exhibit PE5) transferred to the Respondent by PW5 was rooted on good foundation. Aggrieved by the said decision and the consequential orders thereto, the Appellant has appealed to this court vide a notice of appeal dated 15th July, 2010 on seven (7) grounds.

In his brief of argument dated 25th March, 2012 but filed on 28th march 2012, the following 4 issues were formulated by the Appellant from the grounds of Appeal:

1. Whether the learned trial judge rightly held that based on the legally admissible evidence on records, the Respondent proved his radical root of title to the disputed land derivable from the right of occupancy he is brandishing (Grounds 1, 5, 6 and 7).

2. Whether the learned trial judge was right when held he that the evidence by the Respondent’s witness was not of variance with the Respondent’s pleading (Ground 2).

3. Whether the learned trial judge was right when he held that the identity of the land in dispute was not in issue (Ground 3).

4. Whether the learned trial Judge was right when he held that since the proceeding was not to determine the guilt of the Respondent’s witnesses lying on oath would not affect their testimonies (ground 4).

The Respondent in his own brief of argument dated and filed on the 26th of April, 2012 anchored his submissions on the issues as formulated by the Appellant.

Therefore, the issues as articulated by the Appellant above will be considered in the determination of this appeal.

ISSUES ONE:

Whether the learned trial judge rightly held that based on the legally admissible evidence on record, the Respondent proved his radical root of title to the disputed land derivable from the right of occupancy he is brandishing.

The learned counsel for the Appellant L.T. Ayaba Esq. submitted that one of the grounds on which the Appellant rested his case at the trial court was that for a certificate of occupancy to have potency and be effective in law, it must be rooted on a good foundation. The case of Alhaji Sani Mani & 208 v. Alhaji Shehu M. Shanono (2006) 15 WRN 1 – 192 pass 128 at ratio 13 was referred to.

It was also submitted that acquisition of landed property is a constitutional right enshrined in section 44(1) of the 1999 constitution of Nigeria (As amended) and it was to give life to the above constitutional provision that the Land Use Act particularly Section 28(1) (2) (b) and 29 (1) thereof were enacted providing for the procedure to be followed by Government in acquiring land from any person in Nigeria.

It was submitted that the Respondent’s reliance on Certificate of Occupancy as the root of his title is of no moment as mere production of a deed of conveyance or document of title document does not automatically entitle a party to a claim in declaration. Further, that before a document is admitted as sufficient proof of ownership, the court must satisfy itself that the grant has the effect claimed by the holder of the instrument. The case Mrs. Oluwaseun Agboola v. UBA plc. & Ors (2011) 3 SCNJ pas 208 @ 215 ratio 9 was referred to.

It was argued that the introduction of Exhibit PE6 and PE7 which were assessment forms only bearing the pictures of one Saidu and Nuhu Mading darkened the case of the Respondent and the question is, can two people be assessed for compensation on same piece of land bearing in mind that Respondent denied the fact the Appellant’s vendor has a land in the disputed area?. The learned counsel submitted that the trial court was in error in holding that”

“In this case and as it relates to the land in dispute, the evidence of the plaintiffs witness are direct, congent and easily ascertainable”

Page 71 of the records of appeal was referred to.

It was also argued that the trial court somersaulted in the holding thus:

“I do not belief (sic) that the land in question was ever owned by any Nuhu Mading as no sufficient evidence is placed before the court establishing any nexus between the said Nuhu Mading and the land in dispute. Come to think of it the exhibit PE7 which is a document of assessment of compensation in respect of Nuhu Mading could be in respect of any other land but certainly not the land in dispute “Dw1″ said the land in dispute now belong to the Defendant. He sold same to the Defendant. But that he himself (DW1) bought the land from the farmer Nuhu Mading who inherited same from his father”. (Page 69 of the record of appeal)

In the same vein, it was submitted that a plaintiff in an action for declaration of title can only succeed on the strength of his case, and not on the weakness of the Defendant’s case except where the weakness of the case of the Defendant re-in forces or strengthens the case of the plaintiff. The case of Aja v. Okoro (1991) NWLR (Pt. 203) page 260 @ 265 ratio 9, Mrs. Oluwaseun Agboola v. UBA Plc. (supra) page 208 @ 214 ratio were relied upon.

It was further submitted that the trial court holding thus:

“A careful examination of this evidence in all its gamut will inevitably lead to the conclusion that same is manifestly inadequate to discharge the burden on the defendant in establishing the very crux of his assertion which we earlier stated is (a) that the land in dispute originally belong to one Nuhu Mading and same was not duly acquired from him before being allocated to the plaintiffs vendor by the Taraba State Government”, is contrary to the position of the law as encapsulated in section 131 of the evidence Act 2011 (As amended)to the effect that the onus is on he who assets to prove, being the plaintiff in this case and the defendant did not counter claim. According to the learned counsel, the trial Judge was in error by holding that “exhibit DE1 which is the minutes of meeting convened to resolve the dispute in respect of the land in question specifically related to the one allocated to Bakan Hammayidi yet his name was not mentioned. By specifically mentioning the names of the beneficiaries of land in an uncompensated area white resolving a specific allocation to PW5 will leave us with the only impression than the particular portion falls within the compensated area is an elementary principle of interpretation that the express mention of one thing excludes the others.”

It was further argued that the principle of interpretation: “Espressio unius est exclusion alterius” used by the learned trial Judge in interpreting Exhibit “DE1” was inapplicable because Exhibit “DE1″ in stating the names of persons who were not compensated stated thus:

Those among the affected persons are retired perm. See. Joseph N. Audu, A.T. Arume, Henry Neou among others”.

Similarly, that phrase among others means that there were other persons who, though not expressly mentioned in Exhibit “DE1”, were not paid.

It was therefore submitted that the Respondent did not establish by credible evidence that he was entitled to the declaration he sought as the Certificate of Occupancy which he relied on is nothing but a worthless paper and this court was urged to so hold and resolve this issues in favour of the Appellant.

On his own part, the learned counsel for the Respondent M.I. Tyonongo Esq. submitted that the Respondent in proving title to the land in dispute relied on documentary evidence. The Exhibit PE1 is the sale agreement of the disputed land between the Respondent and PW5, Exhibit PE2 is the Certificate of Occupancy on the disputed land which was allocated to PW5 by the Government of Taraba State, through the Ministry of lands and Survey, Exhibit PE3 is cash receipt of payment of ground rent by the Respondent after he had purchased the land from PW5 exhibit PW4 is the approval granted for assignment of the disputed land from PW5 to the Respondent in line with the law while exhibit PW5 is the registered deed of assignment.

It was submitted that the Respondent proved his title to the disputed land via authenticated documents which is one of the ways of proving title to a piece of land as held in Omotayo v. Cooperative supply Association (2011) vol. 202 LRCN 134 @ 147 and that the trial lower court properly evaluated the evidence of the parties and appropriately ascribed probative value to the case of the Respondent.

It was further argued that the onus was on the Appellant to prove that the disputed land was originally owned by Nuhu Mading as the Appellant asserted in paragraph 1 (a) of his statement of defence from whom DW1 acquired titled. Also that he should prove that the Government acquired the disputed land from him and that no compensation was paid. Section 136(1) of Evidence Act, 2011 and the case of Motanye v. Elinwa (1994) 21 LRCN 1 @ 6 paragraph F – G were referred to. It was pointed out that the Appellant did not prove the particular assertion in para 1 (a) of his statement of defence as he refused to call the said Nuhu Mading, the claimed original owner of the disputed land to come and testify. This court was urged to invoke section 167 (a) of the Evidence Act, 2011 (As amended) against the Appellant.

Also it was argued that the tendering of Exhibit “PE7” go to prove that the said Nuhu Mading has a land which was acquired by the government and compensation was assessed and payment made there on. And that no evidence came from the Appellant’s side to make the trial court to disbelieve the evidence from the Respondent or make the scale of Justice Tilt in favour of the Appellant. It was further argued that the Appellant in lines 10 – 14 of paragraph 4.13 of his brief of argument posed a question that; If Nuhu Mading was not the owner of the disputed land, Exhibit PE7 which is an assessment form in his name introduced into evidence by the Respondent was on which land?

This poser according to the Respondent clearly shows the necessity of Nuhu Mading coming to court to clear the doubt that was created but the Appellant kept him away from coming to court. Nevertheless, according to the Respondent, the above question was answered by the trial Judge at page 71 lines 12 – 17 of the records of Appeal. This court was urged to resolve this issue against the Appellant.

RESOLUTION OF ISSUE ONE

There is no doubt that it is now a trite law that proof of ownership of land in Nigeria is of five (5) different ways and are:

1. Proof by traditional Evidence

2. Proof by Production of Documents of title directly authenticated.

3. Proof by Acts of Ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such appropriating acts are the true owners of the land.

4. Proof by acts of long possession and enjoyment of the land which prima facie maybe evidence of ownership not only of the particular piece of land with reference to which such acts are done, but also of other land so situate and connected there with by locality or similarly that the presumption under section 46 and Section 146 of the Evidence Acts applies and the inference can be drawn that what is true of one piece of land is likely to be true of the other piece of land.

5. Proof by possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the adjacent land.

See Obineche v. Akusobi (2010) NWLR (pt 1208) 383 S.C

Alli v. Fibesin (2000 6 NWLR (Pt. 660 P2 177. Adeosun v. Fibesin (2001) II NWLR Pt 724 Page 290.

Idundun v. Okumagba (1976) 9-10 SC 227, Mogaji V. Cadbury Nigeria Ltd. (1985) 2 NWLR Pt.7 Page 393

Where a party relies on documents like Certificate of Occupancy, to prove title to land, it must be rooted on a good foundation. That is to say, the certificate of Occupancy must be based on the land being properly acquired by the authority issuing out the Certificate of Occupancy, failing which the Certificate of Occupancy becomes nothing but a worthless paper and sit precariously on banana pills and must slip with a slight touch of a judicial Hammer.

See Alhaji Sani Mani & 2 Ors v. Alhaji Shehu M. Shanono (2006) 15 WRN 1 – 192 pages 128 at 130 ratio 13 where this court held thus:

“it is the law that a certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof, the certificate also raises a presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person has a better title to the land before the issuance of the certificate of occupancy, then the court can revoke it”.

The holding in Alhaji Sani Mani & 2 ORS vs. Alhaji Shehu M. Shanono (supra) flows directly from constitutional right of a citizen to own movable or immovable property in Nigeria. See Section 44 (1) of the Constitution of The Federal Republic of Nigeria 1999 (As Amended) which provides as follows:

‘No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsory in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things:-

(a) requires the prompt payment of compensation therefore, and

(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or body having jurisdiction in that part of Nigeria”.

It is within the moving spirit of the above constitutional provision that the LAND USE ACT was enacted and also provided for the procedure to be followed by government in acquiring land from any person in Nigeria for the sake of emphasis, Sections 28 (1) and (2) (b) and Section 29 (1) of the LAND USE ACT provide as follows:

28 (1) “It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.

(2) (b) the requirement of the land by the government of the state or by a local government in the state, in either case for public purpose within the state or the requirement of the land by the government of the Federation fur public purposes of the Federation”.

29 (1) “If a right of occupancy is revoked for the cause set out in paragraph (b) of subsection (2) of section 28 of this Act or in the paragraph (a) or (c) of section (3) of the same section, the holder and the occupier shall be entitled to compensation for the value of the date of revocation of their unexhausted improvements”.

In view of the above provisions, it shall be right and lawful for a der of the right over the piece of land in question.

In the spirit of the above position of the law, the Supreme Court in C.S.S. Bookshops Ltd. V. R.T.M.C.R.S (2005) 11 NWLR (Pt. 992) 530 held thus:-

‘The provisions of the law empowering the governor to revoke right of occupancy granted by him or deemed granted by him under section 34(2) and (5) of the Land Use Act are contained in section 28 of the Act where the relevant subsections provide:

“28(1) it shall be lawful for the governor to revoke a right of occupancy for overriding public interest.

(2) Overriding public interest in the case of statutory right of occupancy means.

a. The alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder.

b. The requirement of the land by the Government of the State or by public purposes within the state, or the requirement of the land by the government of the Federation for public purposes of the Federation.

c. The requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.

4. The governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the resident if such notice declares such land, to be required by the government for public purposes.

5. The Governor may revoke a statutory right of occupancy on the ground of:

a. a breach of any of the provisions which a certificate of occupancy is by section 10 of this Act deemed to contain;

b. a breach of any term contained in the certificate of occupancy or in any special contract made under section 8 of this Act;

c. a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the governor under sub-section (3) of section 9 of this Act.

6. The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the governor and notice thereof shall be given to the holder.

7. The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (6) of this section or on such later date as may be stated in the notice”

In Tony Moneme v. Atta Onja & Ors (2011) LPELR-8972, this court held thus:

“The law is now firmly settled that a certificate of occupancy issued to a person, is not conclusive of that person’s interest or title over the land it is granted. It is not absolute certificate. It is susceptible to nullification on justifiable grounds. In the case of Adole v. Gwar (2008) 11 NWLR (Pt.1099) 562, Onu JSC stated: A certificate of occupancy, issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void.”

See also, Provost, LACBD V Edun (2004) 6 NWLR (pt.870) 476. The Respondent gave evidence at page 19 lines 11-17 of the records of appeal to the effect that he acquired the disputed lands from this vendor who got the disputed land by allocation by Taraba State Government.

May I humbly but in sadistic tone state the point clear that it is quite awkward, and uncivil the method of government’s acquisition of private and individual lands and allocate same to individuals. This practices is obviously against the spirit of the laws and should be eradicated in its entirety for our laws are Supreme and respecter of no persons.

Let me place on record that it is not automatic that once a party produces documents of title over a parcel of land, court must as a matter of routine, make declaration in his favour on the face of those documents. A court is entitled to make further inquiries in respect of those documents with view to ascertaining their authenticity or otherwise. Thus, in the case of Romaine v Romaine (1992) 4 NWR (Pt.238) 650 at 662, Nnaemeka-Agu JSC (As he then was) stated:

“I may pause here to observe that one of the recognized ways of proving title to land is by production of valid instrument of grant…But it does not that once a claimant produces what he claims to be instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including:

(i) whether the document is valid;

(ii) whether it has been duly executed, stamped and registered;

(iii) whether the grantor had the authority and capacity to make grant;

See further: Dabo v. Abdullahi (2005) 7 NWLR (pt. (923) 181

The trial lower court was in error by holding thus “in this case and as it relates to the land in dispute the evidence of the Plaintiffs witnesses are direct, cogent and easily ascertainable” (See page 71 of record of proceedings).

In arriving at this decision, the learned Trial Judge stated thus”

“I do not belief that the land in question was ever owned by any Nuhu Mading as no sufficient evidence is pleaded before the court establishing any nexus between the said Nuhu Mading and the land in dispute. Come to think of it the exhibit PE7 which is o document of assessment of compensation in respect of Nuhu Mading could be in respect of any other land but certainly not the land in dispute”

The trial court erred in the above reasoning. This is because before the learned trial Judge with respect somersaulted in reaching the above conclusion, the learned trial Judge stated as follow:

“DW1 said the land in dispute now belong to the Defendant.

He sold same to the Defendant. But that he himself (DW1) bought the land from the farmer Nuhu Mading who inherited some from his father”. (Page 69 of the record of appeal) It is a settled position of the law that a plaintiff can only succeed in an action for declaration of title on the strength of his case, and not on the weakness of the Defendant’s case except where the weakness of the case of the defendant re-in forces and strengthens the case of the plaintiff. The extension of this principle is that the court will not declare title to the Plaintiff who has not offered any evidence in support of the declaration sought.

The law is trite that he who asserts must proof. See SECTION 131 of the EVIDENCE ACT (AS AMENDED) 2011. The learned trial Judge, with due respect, improperly placed the burden of proof on the Appellant who did not counter claim when he held thus:-

“A careful examination of this evidence in all its gamut will inevitably lead to the conclusion that some is manifestly inadequately to discharge the burden on the defendant in establishing the very crux of his assertion which we earlier stated is (a) that the land in dispute originally belong to one Nuhu Mading and same was not duly acquired from him before being allocated to the plaintiffs vendor by the Taraba State Government”.

The Respondent tendered into evidence Exhibit PE7 which is the assessment form of land belonging to Nuhu Mading, the original owner of the land who sold same to the Appellant’s vendor. Exhibit DE1 is a document showing that no compensation has been paid in respect of the disputed land, which position is further strengthened by Exhibit DE1 to the effect that compensation was not done before the Certificate of Occupancy was issued and that most of the area where the land were acquired were not compensated. If Nuhu Mading was not the owner of the disputed land, Exhibit PE7 which is an assessment form in his name introduced into evidence by the Respondent was on which land? I hold the view that there was a placement of the evidence before the trial court.

Thus, the holding by the lower court that:-

“Exhibit DE1 which is the minutes of meeting covened to resolved the dispute in respect of the land in question specifically relates to the one allocated to Bakari Hammayidi, yet this name was not mentioned. By specifically mentioning the names of the beneficiaries of land in an uncompensated area while resolving a specific dispute involving a specific allocation to PW5 will leave us with the only impression than the particular portion falls within the compensated area. Is an elementary principle of interpretation that the express mention of one thing excludes all others” is to my mind erroneous and cannot hold water.

On the principle of interpretation, “Espressio unius est exclusion alterius” used by the learned trial Judge in interpreting Exhibit “DE1” was inapplicable. This is because Exhibit “DE1” in stating the names of persons who were not compensated stated thus:-

“Those among the affected persons are retired Perm. Sec. Joseph N. Audu, A.T. Arume, Henry Neou among others”.

I agree with the learned Counsel for the Appellant’s submission, the phrase “among others” means that, there were other persons who, though not expressly mentioned in Exhibit “DE1”, were not paid. It follows therefore, that the above principle of interpretation applied to Exhibit “DE1” is inapplicable.

I’m in view of the above, I am pleased to resolve this issue in favor of the Appellant.

ISSUE No 2:

Whether the learned trial judge was right when he held that the evidence adduced by the Respondent’s witnesses was not at variance with the Respondent’s pleadings.

The Appellant’ Counsel submitted that the trial court was in grave error by holding that the evidence of Respondent’s witnesses which differs radically with facts pleaded was immaterial as found at page 63 of the record of appeal thus:

“the facts that the pleadings under paragraph 7 alleges that Umaru Abba who inherited the land from his father, Abba, sold part of the land to one Mallam Saidu whereas Abba said under cross-examination that ‘I sold to Saidu my entire land’. This does not derogate from the facts that Umaru Abba indeed sold the land to Mallam Saidu”.

Whereas the Respondent by his paragraph 7 of the statement of claim according to the Appellant counsel pleaded thus:

‘The Plaintiff avers that the original settler or owner of this piece of land was one Abba. Abba died and his son Umar Abba this land from where he then sold part of the land to one Mallam Saidu”

It was submitted that any evidence which is contrary to facts pleaded amount to water poured inside a basket and goes to no issue. The case of Olusodun v. Lawal (2008) 161 LRCN page 70 @ 81 ratio 8 was relied upon. On his own part, the Respondent’ counsel submitted that assuming the evidence of PW4 under cross-examination to the effect that he sold the entire land to Mallam Saidu is disregarded for being at variance with paragraph 7 of the statement of claim, the issue of title on the land in favour of the Respondent still stands unshaken as documentary evidence tendered at the trial court are the best evidence to be relied on. The case S.S.G. v. Tunji Dosumun Ind. Ltd. (2011) vol. 194 LRCN 192 @ 202 ratio 3 was referred to.

It was further submitted that evidence which is relevant to the issue in controversy and that is not successfully challenged, controverted or discredited is good and reliable evidence to which probative value ought to be ascribed. Further that a Plaintiff who adduced such credible and reliable evidence is bound to succeed in his case as civil cases are decided on preponderance of evidence and balance of probability. The case of Chabasaya v. Amvasi (2010) vol. 184 LRCN 1 @ 5 ratio 1 was referred to.

Similarly, it was argued that assuming there are contradictions in the evidence of PW5 as submitted by the Appellant, Exhibit PE2 stands out without any contradictions as to which piece of land is disputed before the court. That the law is that oral evidence cannot be admitted by the court to vary, contradict or alter the contents of Exhibit PE2 which is a documents of grant. Section 128(1) of evidence Act 2011, was referred to. This court was urged to resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUE TWO

The trial lower court at page 63 (of the record of proceedings) held thus:

“the facts that the pleadings under paragraph 7 alleges that Umaru Abba who inherited the land from his father, Abba, sold port of the land to one Mallam Saidu whereas Abba said under cross-examination that ‘I sold to Saidu my entire land’. This does not derogate from the facts that Umaru Abba indeed sold the land to Mallam Saidu”.

The Respondent by his paragraph 7 of the statement of claim pleaded thus:

The Plaintiff avers that the original settler or owner of this piece of land was one Abba. Abba died and his son Umar Abba this land from where he them sold part of the land to one Mallam Saidu”

In proof of this averment, PW1, state in his evidence in-chief stated thus:

“When Taraba State was created the land in question was the property of my father as a farmland. He was farming thereon then they came and took the land from him. My father was farming because it was a farmland”. (See page 15 of the record).

The Respondent’s witness, PW4 in his examination in-chief stated that “My father came with his relations found an empty or virgin land and deforested same and settled there, Government acquired the land from Mallam Saidu, the person who bought from me”. (See page 25 of the record).

The Respondent sought before the trial court a declaration of title over a parcel of land with the Certificate NO. TS/118 on TSJP3 Plot No. 6(E) Road with total Area of 2700 square metres. However, the land sold to Mallam Saidu by Umaru Abba which according to him.

“I sold to Mallam Saidu my entire land” is not the total area of 2700 square metres covered TS/118 on TSJP3 Plot No. 6(E) Road, and cannot be the disputed land.

In the same paragraph 7 of the statement of claim, the Respondent pleaded that Abba died and his son Umaru Abba inherited his land from where he then sold part of the land to one Mallam Saidu.

These contradictions continue to flow unabatedly to the evidence of PW5, the Respondents Assignor, who did not even know the land over which the Certificate of Occupancy was issued. This witness, that PW5, under cross-examination stated as follows:

“I cannot remember the measurement of the land, normally it is 100 x 100. I did not do anything on the land when it was allocated to me. I went to the area but not my own land”.

The law is settled beyond any controversy that evidence which goes contrary to facts pleaded amount to water poured inside a basket, it goes to no issue. See Olusodun vs. Lawal (2008) 161 LRCN page 70 at 81 ratio 81,

In Ojiogu v. Ojiogu (2010) 9 NWLR (Pt. 1198 1 S.C, our Apex Court held thus:

“I must make the point that one cardinal principle of pleading is that parties are bound by their pleadings and so also the corollary that evidence given not in accordance with pleadings go to no issue. See Obazee Ogiamien & Anor. V. Obahan Ogiamien (1967) NMLR 245; Y.A. Oseni & Ors. v. Slami Taylor (1975) 2 WSCA 66; The National Investment & Properties Co. Ltd. V. The Thompson Organization Ltd. & Ors. (1969) NMLR 99. “Per. Chukwuma-Eneh, JSC, (Pp. 22, paras A-C.”

See also Obazee Ogiamien & Anor. V. Obahan Ogiamien (1967) NMLR 245, Y.A. Oseni & Ors. V. Slami Taylor (1975) 2 WSCA 66, The National Investment & Properties Co. Ltd. V. The Thompson Organization Ltd. & Ors. (1969) NMLR 99. From the foregoing, I resolve this issue in favour of the Appellant.

ISSUE No. 3

Whether the learned trial Judge was right when he held that the identity of the land in dispute was not in issue.

The Appellant’s counsel submitted that the findings of the trial court to the effect that identity of the disputed land was not in issue cannot be supported having regards to the parties pleadings as held by the trial Judge at page 64 of the records of appeal.

Further that the Appellant in Paragraph 1 and 2 of the statement of defence denied the identity of the land as described by the Respondent in his pleadings. That it behooves on the Respondent to show by cogent, credible and consistent evidence that the land which he is claiming to be 2700 square metres covered by the Certificate of Occupancy he is brandishing is actually the land acquired by the Government from Saidu, and also what happened to the other part of the land since according to him (saidu) the land was a large one.

It was submitted that the onus is usually on a person who is claiming title declaration to a piece of land to prove the definite piece of land being claimed, otherwise it is fatal to the claim. The case of Olodo v. Josiah (2011) 190 LRCN page 34 at 42 ratio 8, Ogedengbe & ORS v. Balogun (2007) LRCN page 197 at 203 ratio 2, 3, 4. Odiche v. Chibogwu (1994) 7 – 8 SENJ page 317 at 318 ratio 1 – 4 were referred to.

This court was urged to resolve this issue in the favour of the Appellant.

In his own view, the Respondent’s counsel submitted that the identity of the disputed land was not an issue before the trial court. That it is a fresh issue which requires the leave of this court which in this case, was not sought nor obtained. This court was urged to stick it out and the case of Oseni v. Bajulie (2010) 178 LRCN 20 of 29 ratio 2 was referred to.

It was further submitted that the Respondent as claimant before the trial court filed a site plan of the land with the Certificate of Occupancy. That the law is that once a Plaintiff in a suit has filed a site plan, the identity of the land in dispute wilt be an issue if and only if the Defendant in his statement of defence makes it one i.e. if the Defendant specifically disputes either the area or the size or location or features on the land. The case of Aeleyon v. Ademiran (2001) 10 NWLR (Pt. 720) 151 at 153 ratio 2 was relied upon. This court was urged to resolve this issue against the Appellant.

RESOLUTION OF ISSUE THREE

The issue of identity of land in an action for declaration of title to land is very fundamental. The onus is on the plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration.

The findings of the trial court to the effect that identity of the disputed land was not in issue cannot be supported having regards to the parties’ pleadings. The learned trial Judge held at page 64 thus:

“Both the state of the pleadings and the evidence of PW4 including his cross-examination did not leave this court or the parties in doubt as to which land they are disputing over. None of the parties either of the time of hearing or in their pleadings, made the identity of the land an issue. It is very clear that the particular land in dispute is well known to the parties. The issue of identity of land will only arise where the Defendant raises it is his statement of defence and supported by evidence. Since if it is apparent that the parties are fully aware of the disputed land it is immaterial whether Umaru Abba says he sold the whole or part of his inherited land to Saidu. To make this an issue at this stage is to smuggle in the question of identity of land which ought to have been raised by the statement of defence”.

The Respondent, as Plaintiff at the trial court, in paragraph 13(1) of his statement of claim sought for a declaration of title to a piece of land measuring 2700 square metres covered by a Certificate of Occupancy No. TS/118 lying and situated at TSJP3 layout on Plot No. 6 (E) in Nyamasalla Ward, Jalingo town. The Respondent through PW4, one of his predecessors in title, stated the boundary men to the land in dispute. See page 26 of the record of proceedings. PW5, Respondent’s Assignor stated under cross-examination that,

“I cannot remember the measurement of the land now; normally it is 100 x 100”.

The Appellant in paragraph 1 and 2 of the statement of defence denied the identity of the land as described by the Respondent in his pleadings. It behooves on the Respondent to show by cogent, credible and consistent evidence that the land which he is claiming to be 2700 square metres covered by the Certificate of Occupancy he is brandishing is actually the land acquired by the Government from Saidu, and he should state also what happened to the other part of the land since according to him (saidu) the land was a large one.

See OLODO V. JOSIAH (2011) 190 LRCN PAGE 34 AT 42 RATIO 8, OGEDENGBE & ORS v. BALOGUN (2007) LRCN PAGE 153 AT 197 RATIO 2, 3, 4.

In the Supreme Court decision in the case of ODICHE V. CHIBOGWU (1994) 7 – 8 SCNJ PAGE 317 AT 318 RATIO 1 – 4, it was held thus: “In a claim for a declaration of ownership or exclusive possession of a piece of land, the first and foremost duty of the claimant is to describe the land in dispute with such reasonable degree of certainty and accuracy that its identity will no longer be in doubt. This is done by the claimant stating the following:

(a) The boundaries of the area and location of the land he is claiming.

(b) His neighbours and their names on all sides of the boundaries. Where some of the boundaries are marked by river, stream or rood, their names. (c) Any other physical features on the land like rocks, building, trees, etc. that may assist in its identification.

The mere mention of the name of the land in dispute without stating clearly the area of the land to which the claim is related is not enough description to which evidence can be related.

There must be cogent evidence of tradition or of positive and numerous acts of ownership pointing unequivocally to the facts that the Appellant was exercising dominion over the land in dispute. Where the land being claimed is not identified and ascertained the claim will fail and will be dismissed accordingly”.

This issue is hereby resolved in favour of the Appellant.

ISSUE NO 4:

Whether the learned trial judge rightly held that since the proceeding was not to determine the guilt of the respondent’s witnesses, lying on oath would not affect their testimonies.

It was submitted that the Appellant was prosecuted at the Chief Magistrate’s Court Jalingo for criminal trespass and mischief in case No. CMCJ/28/2008 and was discharged and acquitted of all the charges. That the records of proceedings in C.O.P V. Sheriff Usman was pleaded as Exhibit “D1”. Also that PW2 who testified in that criminal proceeding as PW6, told the court that the land in dispute is for Umaru Abba, (PW3), and that it was from Alhaji Abba that Government took over the land.

Further that the same witness at the trial lower court testifying as PW2 turned around and said thus:

“Government has acquired the land and compensation was paid by Afolahan regime to Mallam Saidu’s children”.

Furthermore, it was argued that Umaru Abba, PW4, who testified in that criminal proceedings as PW3, also admitted under cross-examination that “what he told the court, was that Nasiru now the Plaintiff before this court told him”. That the same witness, PW4 now denied his earlier testimony and stated thus:

“I did not tell the court that Nasiru told me what I testified”.

From the foregoing, it was argued that the credit of the witness can be impeached by proof of former statements inconsistent with any part of this evidence which is liable to be contradicted and when the witness credit has been damaged by the fire of cross-examination, the inescapable outcome is that the witness collapses with his untruthful testimony. Sections 223 Evidence Acts 2011. (As amended) was referred to.

It was further submitted that the learned trial Judge stated the position correctly, the issue to which evidence given in previous proceedings can be put to, turned around and held at page 65 of the record of proceedings thus:

“when a person is accused of lying under oath, the recognizes legal effect of that is to subject the person to penalties for perjury. Now since this proceedings is not to determine the guilt or otherwise of the offender against whom no charge is pending before this court it will be absolutely inappropriate for this court to pronounce or whether or not to (2) intrudes lies under oath”.

It was submitted that trial court ought to have pronounced on its belief or disbelief in the testimonies of these witnesses irrespective of whether a criminal charge of perjury is hanging over them. It was therefore submitted that evidence of untruthful witnesses ought to be rejected. This court was urged to so hold and resolve this issue in favour of the Appellant.

On his own part, the counsel to the Respondent submitted that there is no doubt that the Government of Taraba State acquired the piece of land in issue from Mallam Saidu while Mallam Saidu himself obtained title on the land from Umaru Abba and that this court should hold that there was only a misplacement of facts by the said witness and not a deliberate act of lying under oath as being contended by the Appellant.

Further, it was submitted that the allegations against PW2 and PW3 of lying on oath has been made by the Appellant and it is for him to prove the allegations beyond reasonable doubt for him to succeed. Sections 135(1) & (2) of Evidence Act, 2011.

The case of Oketie v. Olugbor (1995) 5 SCNJ 217 at 220 ratio 14 were relied upon.

On the contention of the Appellant that the learned trial Judge did not make a pronouncement over the contradictions in the evidence of PW2 as submitted by the Appellant, the Respondent counsel referred this court to page 65 – 66 of the record of appeal.

On the whole, this court was urged to resolve this issue against the Appellant and dismiss the appeal in its entirety.

RESOLUTION OF ISSUE 4:

The Appellant was prosecuted at the Chief magistrate’s Court Jalingo for criminal trespass and mischief in case No. CMCJ/28/2008 and was discharged and acquitted of all the charges. The Appellant pleaded the records of proceedings in C.O.P v. Sheriff Usman as Ex- “D1”. PW2 who testified in that criminal proceeding as PW6, told the court that the land in dispute is for Umaru Abba, PW3, and that it was from Alhaji Abba that Government took over the land. Before the High Court, this witness turned around and said that, “Government have acquired the land and compensation was paid by Afolahan regime to Mallam Saidu’s children”. Umaru Abba, PW4, who testified in that criminal proceeding as PW3 cross-examination that “what he told the court was what Nasiru now the Plaintiff before this court told him”. This same witness, PW4 now denied that, “I did not tell the court that Nasiru told me what I testified”.

It is beyond doubt that cross-examination is the greatest weapon ever invented for the discovery of truth. Cross-examination, inter, alia, test the accuracy, veracity or credibility of a witness. The credit of a witness can be impeached by proof of former statement inconsistent with any part of his evidence which is liable to be contradicted. And, the witness credit has been damaged by the fire of cross-examination, the inescapable outcome is that he collapses with his untruthful testimony foaming in his mouth. Sections 223 and 233, Evidence Act (As amended) 2011.

The learned trial Judge having stated correctly the uses to which evidence given in previous proceedings can be put to, in a sudden and unexpected move, turned around and held on page 65 of the record of the proceedings thus:

Thus, the trial court ought to have pronounced on its belief or disbelief in the testimonies of these witnesses irrespective of whether a criminal charge of perjury is hanging over them.

The law is trite that a party is not bound to call a battalion of witnesses in order to succeed in his case if he thinks that he can proof his case with just a witness. See section 200, evidence Act (As Amended) 2011. Since the Respondent decided on his own accord to call these witnesses, he must swim or sink with their testimonies.

I agree with the learned Counsel to the Appellant’s submission that the responsibility of prosecuting offenders lies with the state, whether or not the offence is committed in the course of civil proceedings. Nevertheless, evidence of witnesses who lie on oath in a civil proceeding must be rejected as untruthful and should not be brushed aside simply because no charge is preferred or pending against them.

It is based on the foregoing that this issue is resolved against the Respondent.

On the whole, I found this appeal meritorious and it is hereby allowed. The judgment of the trial lower court delivered on 25th May, 2010 is hereby set aside.

No order as to costs.

JUMMAI HANNATU SANKEY J.C.A.: I read the Judgment of my learned brother, Denton West, J.C.A. I concur. I abide by the consequential orders therein contained, inclusive of that relating to costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading, in draft, the judgment of my learned brother Hon. Justice S. Denton-West JCA, and I agree with his reasoning and conclusion that the Appeal is meritorious and should be allowed. I have nothing more to add to improve on this well researched and scripted judgment.

I too shall allow the Appeal on all the issues formulated and set aside the decision of the learned trial Judge. Parties shall bear their respective costs as ordered by My Lord in the lead Judgment.

Appearances

L.T. Ayuba Esq.For Appellant

AND

M.I. TyonongoFor Respondent