UBAYO D. KEDENGS v. YAKONG TADI & ANOR
(2011)LCN/4895(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of July, 2017
CA/YL/07/2016
RATIO
IDENTITY OF THE LAND: CIRCUMSTANCES WHERE THE DUTY OF THE PLAINTIFF TO PROVE THE PRECISE AREA TO WHICH HIS CLAIM RELATES WILL ARISE
The plaintiff has a duty to prove the precise area to which his claim relates. However, the burden will not arise where the identity of the land in dispute was never a question in issue. The issue will only arise where the defendant raises it in his statement of defence and supported by evidence. PER JAMES SHEHU ABIRIYI, J.C.A.
IDENTITY OF THE LAND: WHERE THE PARTIES HAVE AGREED ON THE PRECISE IDENTITY OF THE LAND IN DISPUTE WHETHER THE DIFFERENT NAMES GIVEN TO THE LAND OR THE AREA WHERE THE LAND IS LOCATED WILL BE FATAL TO THE PARTY CLAIMING SUCH LAND
Where the parties by the evidence adduced both oral and documentary, are agreed on the identity of the land in dispute the fact that different names are given to the land or the area where the land is located is not fatal to the party claiming such land. See Dada Vs. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 and Ogbu Vs. Wokoma (2005) 14 NWLR (Pt. 944) 118. PER JAMES SHEHU ABIRIYI, J.C.A.
IDENTITY OF THE LAND: WHETHER A DEFENDANT CAN COUNTER CLAIM FOR THE LAND IN DISPUTE WHICH IDENTITY HE DOES NOT KNOW
A defendant cannot counter claim for the land in dispute which identity he does not know. See Anyanwu & Ors Vs. Uzowuaka & Ors (2009) LPELR 515 SC page 36 A D. PER JAMES SHEHU ABIRIYI, J.C.A.
CONTRADICTIONS IN EVIDENCE OF WITNESSES: CIRCUMSTANCES WHERE CONTRADICTIONS IN EVIDENCE OF WITNESSES CAN AVAIL THE OPPOSITE PARTY
It is the law that contradictions in evidence of witnesses can only avail the opposite party where they are material and affect the live issue in the matter to the extent that they affect the fortunes of the appeal in favour of the party raising the issue. The law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on the issue in contention. What the law expects is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. See Usiobaifo Vs. Usiobaifo (2005) NWLR (Pt. 913) 665 and Nwokoro Vs. Onuma (1999) 12 NWLR (Pt. 631) 342. PER JAMES SHEHU ABIRIYI, J.C.A.
INADMISSIBLE EVIDENCE: DUTY OF THE COURT NOT TO ACT UPON ADMITTED INADMISSIBILE EVIDENCE
Where inadmissible evidence has been admitted, it is the duty of the Court not to act upon it. See A.G Leventis Vs. Akpu (supra) at page 654 and Olukade Vs. Alade (1976) 2 SC 183. PER JAMES SHEHU ABIRIYI, J.C.A.
ADMISSIBILITY OF SECONDARY DOCUMENTS: WHETHER ONLY CERTIFIED TRUE COPIES OF PHOTOCOPIES OF PUBLIC DOCUMENTS ARE ADMISSIBLE IN EVIDENCE
By virtue of Sections 102, 104 and 105 of the Evidence Act 2011, only certified true copies of photocopies of public documents are admissible in evidence. See Federal Airports Authority of Nigeria Vs. Wamal Express Services (Nig) Ltd (2011) LPELR 1261 SC. PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICE
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria
Between
UBAYO D. KEDENGSAppellant(s)
AND
1. YAKONG TADI
2. DAUDA YAKUBURespondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 14th May, 2014 in the High Court of Gombe State holden at Gombe wherein the Appellant as plaintiff claimed against the Respondents as Defendants the following:
1. A declaration of title over the land laying situate at Kentengereng Billiri, Billiri Local Government bought by Plaintiff from 2nd Defendant for N700, 000.00 (Seven Hundred Thousand Naira Only.)
2. A declaration that the continued stay of the Defendants on the land constitutes trespass.
3. A perpetual injunction restraining the Defendants and anybody claiming title under them from further entry into the land or developing same.
4. N2, 000, 000.00 examplary (sic) damages
5. N500, 000.00 cost of the action.
The 1st Respondent on his part did not only vigorously defend the suit but counterclaimed for the following:
(a) A declaration of title to this land upon 1st defendant as representing his mother Mrs. Fibi Tadi.
(b) A declaration that the plaintiff/defendant to counterclaim and 2nd defendant are trespassers upon this land.
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(c) N1, 000, 000.00 special damages categorized as follows:-
(1) N200, 000.00 expended on the treatment of Mama as a result of shock resulting from this suit.
(2) N300, 000.00 expended preparatory to continuing development on the land but stopped as the workers became afraid of the implications of this suit.
(3) N200, 000.00 expended on my Journey to and fro Lagos to come purposely to defend this suit.
(4) N200, 000.00 paid to my counsel as I am compelled by this suit to so do.
(5) N100, 000.00 expended as miscellaneous.
(d) The sum of N5m as general damages for trespass.
(e) An order of perpectual (sic) injunction restraining the plaintiff and 2nd defendant, their agents, heirs, servants or any person claiming through them from trespassing or entry in any way nor to disturb the 1st defendant/counter claimants as representing his mothers possession and enjoyment of their land.
(f) Cost of this action.
The cases of the respective parties are short and simple. They include the following; starting from the Appellants case. According to the Appellant, the land in dispute was initially sold to PW1 by
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2nd Respondent but when PW1 could not make full payment, it was offered to him. He bought the land for seven hundred thousand naira (N700, 000.00). He took possession of the land in 2006. In August, 2012, the 1st Respondent trespassed into the land.
However, the case of the 1st Respondent according to the DW2 is that the 1st Respondent is her son and the 2nd Respondent is her younger brother. She bought the land a long time ago with the help of her husband now late from one Ibrahim Manaja Poshiya for eight hundred naira (N800). That their father had no landed property at Billiri town and as such the 2nd Respondent could not have inherited any. That all her siblings including the 2nd Respondent grew up under her care. She is therefore surprise that the 2nd Respondent is now claiming her property as his own. That the 2nd Respondent cannot inherit her property while she is still alive. After buying the land, she built a four bedroom bungalow on the land. She allowed members of LCCN Church who requested to make use of the building to use it for worship. DW2 maintained that the land belongs to her and she told the 1st Respondent to further build a toilet,
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bathroom and one room on the land to enable them give it out as corpers lodge.
The suit has resulted in the breakdown of DW2s health and trauma of 1st Respondent coming home frequently from Lagos where he works.
The defence of the 2nd Respondent is that the land in dispute devolved on him by inheritance from his late father. The Appellant purchased the land in 2006. In 2012, the Appellant told the 2nd Respondent that the 1st Respondent was interfering with his peaceful and quiet enjoyment of the land by various acts of trespass.
After considering the evidence adduced by the respective parties, and addresses of learned counsel for the parties, the Court below dismissed the claim of the Appellant and entered judgment in favour of the 1st Respondent/Counter-claimant. The Court below granted the two declaratory reliefs sought by the 1st Respondent, an order of perpetual injunction, special and general damages.
The Appellant has approached this Court by notice of appeal challenging the judgment of the Court below. The notice of appeal dated and filed on 13th August, 2014 contains eleven grounds of appeal.
In
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compliance with the Rules of this Court, the Appellant filed a brief of argument dated and filed 25th May, 2016. The Appellant presented five issues for determination from the grounds of appeal. The five issues reproduced immediately hereunder read as follows:
1. Whether the learned trial High Court Judge was right when he held that from the pleadings and evidence of all the parties they are ad idem on the identity of the land (distilled from grounds 1 & 3).
2. Whether the learned trial High Court Judge was right when he held that the pieces of evidence about the measurement of the land of 100x100ft pleaded by Appellant and 100x60ft pleaded by 1st Respondent and 100x80ft testified by DW2 (1st Respondent mother) is a discrepancy and not contradictory and did not affect the identity of the land. (distilled from ground 2).
3. Whether the learned trial High Court Judge was right in resolving the differences in the certificates of occupancy in the Court in the absence of an expert evidence or measurement of the land in dispute to ascertain which of the certificates actually relates to the land preferring to settle on which was first issued
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(distilled from grounds 6 & 7).
4. Whether the special damages of N300,000.00 awarded against the Appellant/2nd Respondent was specially pleaded and proved and Appellant afforded a fair hearing in the entire case (distilled from grounds 9 & 10).
5. Whether the Appellant did not proof (sic) his case before the trial High Court. (distilled from grounds 4, 5, 8 & 11).
The 1st Respondent filed a 1st Respondents brief of argument dated 23rd October, 2016 but filed on 26th October, 2016. It was deemed duly filed and served on 28th February, 2017. The 1st Respondent presented the following four issues for determination from the eleven grounds of appeal. The issues are reproduced immediately hereunder:
(i) Whether the parties are ad idem on the identity of the land in dispute (Distilled from grounds 1, 2, 3, 6 and 7).
(ii) Whether the 1st respondent is entitled to the award of N300, 000.00 as special damages made in his favour (Ground 10).
(iii) Whether both the appellant and the 2nd respondent were given a fair hearing (Ground 9).
(iv) Whether the appellant had proved his case on the balance of probabilities before
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the lower Court (Grounds 4, 5, 8 and 11).
The 2nd Respondent filed no brief of argument. Learned counsel for the 2nd Respondent said they were conceding to the appeal.
The appeal was thus argued on the following briefs:
1. Appellants brief of argument dated and filed on 25th May, 2016 settled by Chief C. Ubale.
2. 1st Respondents brief of argument dated 23rd October, 2016, filed on 26th October, 2016 but deemed duly filed and served on 28th February, 2017.
I will determine the appeal on the issues distilled by the Appellant.
Arguing issue 1, learned counsel for the Appellant submitted that the parties from the onset were not in agreement as to the identity of the land in dispute. The Court below, it was submitted, was wrong to have assumed that the parties were in agreement as to the identity of the land.
It was argued that the Appellant defined the land he was claiming and identified it. If the 1st Respondent pleaded a different land altogether, then the identity of the land became an issue. The 1st Respondent, it was further argued, while describing the land in dispute never stated where it is
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situated in the 1st Respondents statement of defence; not even in the counterclaim. It was pointed out that the certificate of occupancy Exhibit D tendered by 1st Respondent and admitted by the Court below is for a piece of land measuring 100x60ft. Exhibits G and G2 tendered by the Appellant show that the land is 100x100ft.
It was submitted that the difference between 100x100ft and 100x60ft is not a mere discrepancy. It was submitted that the case of Oladipo Vs. Moba LGC (2010) 8 NWLR (Pt. 1186) 131 is not on all fours with the present case; and was misapplied in the circumstances. The Court was referred to the evidence of DW1 at page 189 lines 10 11 of the record of appeal where he stated thus:
The land shown on Exhibit A which is 100x100ft and my mothers land which is about 100x60ft are two different land.
It was submitted that Exhibit D has no site plan attached to it. Also that Exhibit D is for a piece of land situate at Bare Billiri and not Kentengereng Billiri.
It was submitted that the Appellant said that the land he bought is at Kentengereng Billiri while the 1st Respondent counterclaimed
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for title to land but did not describe the land in his statement of defence but tendered Exhibit D. Exhibit D, it was submitted has no site plan attached to it and yet the Court below believed the 1st Respondent without visiting the locus and granted the counterclaim of the 1st Respondent.
On issue 2, it was submitted that the contradiction in 1st Respondents case is such that it cast serious doubt in the case of the 1st Respondent. We were referred to Ogun Vs. Akinyelu (2004) 20 NSCQR 302.
Exhibits D and F, it was submitted, do not have the same measurement with Exhibits G, G1 and G2. It was submitted that while the Appellant and the 2nd Respondent and Exhibits G, G1 and G2 were consistent that the land is 100x100ft, DW1 and DW2 were not consistent on the measurement of the land. It was further submitted that DW3 did not even know the measurement and DW2 who claimed to have bought the land said the land is 100x80ft while her sons Exhibit D showed the contrary and without a site plan.
The description of the land, it was submitted is not a discrepancy but a material contradiction. We were referred to Aremu Vs. Adetoro (2007)
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31 NSCQR 62.
On issue 3, it was submitted that the Court on its own in chambers raised an issue regarding Exhibits G, G1 and G2 and held that the Exhibits did not exist. Exhibits G, G1 and G2, it was pointed out, were tendered without objection. The Court, it was argued, suo motu made issues out of it and held that the mere acquisition of Exhibit G with all the defects does not confer title on the 2nd Respondent and also that the 2nd Respondents claim of transferring title to the Appellant could not stand.
Learned counsel for the Appellant wondered why the Court below preferred Exhibit D and submitted that the lower Courts findings on the certificates of occupancy were outside the issues formulated. The certificates of occupancy, it was pointed out, were all tendered through DW4, the land officer who agreed that they emanated from the lands Department. It was submitted that the issue of certification was not raised by any of the parties. We were referred to the evidence of DW4 at page 208 line 20 of the record of appeal and page 210 of the record.
The question, it was argued, is which certificate relates to the land and
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which does not. The lower Court, it was submitted, should not have resorted to the issue of certification. It was submitted that the Court raised issues on its own without giving counsel the benefit of further address. It was submitted that the Court below failed to say which land relates to Exhibit G and the basis for affirming Exhibit D which had no site plan.
The Court was referred to AG Leventis Vs. Akpu (2007) 30 NSCQR 631 and Araka Vs. Ejeagwu (2000) 4 NSCQR 308 on a Court raising an issue suo motu and proceeding to resolve it without affording the parties the opportunity of addressing it.
On issue 4, learned counsel for the Appellant submitted that the 1st Respondent nowhere pleaded and proved special damages against the Appellant and the 2nd Respondent. It is the law, it was submitted, that special damages must be specifically pleaded and proved. We were referred to Arisons Vs. M. L. Government of Ogun State (2009) 38 NSCQR (Pt. 11) 745 and Kopek Construction Ltd Vs. Ekisola (2010) All FWLR (Pt. 519) 1038.
Learned counsel for the Appellant submitted that the Appellant was not given fair hearing because the Court below
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argued strenuously in favour of Exhibit D and suo motu rejected Exhibit G. We were referred to page 266 lines 8 -17 where the Court below referred to arguments of Appellants counsel as absurd. Also that the Court below stated that raising the identity of the land in Appellants counsels address was an after thought, belated and shallow. It was submitted that where the 1st Respondent pleaded a different parcel of land as in this case at Bare not Kentengereng and with a different size and a different certificate and the identity of the land became an issue, the argument could not be described as shallow. This, it was submitted, accounted for the punitive cost awarded against the Appellant.
On issue 5, learned counsel for the Appellant submitted that the failure by the 1st Respondent to tender a letter which he said counsel for the 2nd Respondent wrote to LCCN Church saying that the land belongs to the 2nd Respondent which shows that if the letter was tendered, it would have worked against the 1st Respondent. We were referred to Section 169 of the Evidence Act 2011. The letter, it
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was submitted, was pleaded in paragraph 15 of 1st Respondents statement of defence and was listed in the list of documents to be tendered.
It was further submitted that the 1st Respondent pleaded that he made developments on the land but did not plead at what point the developments were made when the Appellant pleaded that he bought the land in 2006 and 1st Respondent trespassed into the land in August, 2012. The Court was referred to paragraph 12 of the statement of claim in which the Appellant pleaded that the 1st Respondent dug holes in the land like soakaway and started building same with cement blocks. The Court below, it was submitted, believed the 1st Respondent who stated acts done without tying them to a period forgetting that the 1st Respondent has a burden of proving his counterclaim.
It was submitted that the Court below did not resolve which land is at Kentengereng and which is at Bare Billiri. The Appellant, it was submitted, pleaded that his land was at Kentengereng Billiri and proved this through Exhibits A and G and the site plan. It was submitted that while the Appellants root of title to the land claimed by the
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Appellant is consistent and not contradictory, it is the 1st Respondents claim and root of title that are inconsistent and contradictory.
It was submitted that the evidence of PW1, PW2, PW3 and DW5 and DW6 were consistent with the pleadings of both the Appellant and the 2nd Respondent and since proof in civil cases is on the balance of probabilities, the Appellants claim is not inconsistent, rather, it is the 1st Respondents claim through his mother that is inconsistent and not deserving of the Courts judgment on the counterclaim which is lacking in material particulars. For example learned Appellants counsel said:
(1) The counterclaim never defined the land granted to them.
(2) That the proof of title has been inconsistent especially Exhibit D which says that the land is 100x60ft.
(3) That the DW2 said that the land is 100x80ft.
(4) That all the witnesses of the 1st Respondent are his mothers domestic staff.
(5) That Exhibit D shows that the land is at Bare while Exhibits G, G1 and G2 described the land correctly in accordance with the pleadings.
(6) That the claim of the 1st
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Respondents mother that their father, a Pastor left nothing for them is not pleaded and therefore goes to no issue.
We were referred to Adebayo Vs. Shogo (2005) 21 NSCQR 93.
It was submitted that in civil cases, the burden of proof is on the preponderance of evidence. Boye Industries Ltd Vs. Sowemimo (2010) All FWLR (Pt. 521) 1462 and Mogaji Vs. Odofin (1978) 4 SC 9 were cited in support of this proposition of the law.
On issue 1, learned counsel for the 1st Respondent submitted that when the parties by evidence adduced are agreed on the identity of the land in dispute, the mere fact that the parties refer to the land by different names or give different descriptions as to where the land is situated is not fatal to the case of the plaintiff. We were referred to Salami Vs. Gbodoolu (1997) 49 LRCN 1020 and Tsemudiara Vs. Messrs F.G.S & Co Ltd (2008) 7 NWLR (Pt. 1085) 84. It was submitted that the discrepancies in the testimonies of the witnesses on the size of the land is rather trivial which the Court below rightly found was immaterial as it did not in any way affect the identity of the land.
It was submitted that the
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submission of Appellants counsel that 1st Respondent joined issues with the Appellant on the identity of the land is untenable. It was submitted that if the 1st Respondent had joined issues with the Appellant on the identity of the land he would not have counterclaimed for the same land. We were referred to Anyanwu Vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 at 476 D E. It was submitted that the 1st Respondent knew the identity of the land that was why he counterclaimed.
The Court was urged to hold that the parties were agreed on the identity of the land in dispute.
On the issue of the award of N300, 000.00 special damages which is 1st Respondents issue 2 but is issue 4 in the Appellants brief, learned counsel for the 1st Respondent referred the Court to paragraph 28(c) (2) of the statement of defence and counterclaim of the 1st Respondent and submitted that the Court below at page 294 of the record found that the Appellant admitted paragraph 28(c) (2) which is to the effect that the 1st Respondent expended N300,000.00 preparatory to continuing development on the land in paragraph 12 of the statement of claim and
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written statement on oath. That the Court below also found that the 2nd Respondent admitted same in paragraph 2 of the statement of defence apart from the admission of PW3 and PW5 under cross examination. It was submitted that facts admitted need no further proof. We were referred to Bunge Vs. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573.
It was submitted that in the light of the admission of the claim of the 1st Respondent by the Appellant and 2nd Respondent, the Court below was right in considering the admission of the 1st Respondents claim for special damages. We were referred to A.G Leventis (Nig) Plc Vs. Akpu (supra).
On whether the Appellant and 2nd Respondent were afforded a fair hearing, it was submitted by learned counsel for the 1st Respondent that the Appellant and the 2nd Respondent were accorded a fair hearing. We were referred to Ezechukwu Vs. Onwuka (2006) 2 NWLR (Pt. 963) 151, Eke Vs. Mil. Admin, Imo State (2007) 13 NWLR (Pt. 1052) 531 and Idris Vs. ANPP (2008) 8 NWLR (Pt. 1088) 1.
Issue 4 presented for determination by the 1st Respondent is similar to issue 5 formulated by the Appellant. On this issue,
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learned counsel for the 1st Respondent submitted that the Appellant had a duty to prove that the vendor (2nd Respondent) had in fact what he proposed to grant by the sale agreement or instrument. We were referred to Ayanwale Vs. Odusami (2011) 18 NWLR (Pt. 1278) 328 and Dabo Vs. Abdullahi (2005) 7 NWLR (Pt. 923) 181.
The initial position of the 2nd Respondent on the pleadings and statements on oath, it was pointed out, was that the 2nd Respondent inherited the land he sold to the Appellant from his late father.
But the 2nd Respondent under cross examination said the land was given to him by his father when he was alive in the presence of relations. Still under cross examination, the 2nd Respondent said his father gave him the land in dispute in the house of late Tadi and Mr. Tadi and Mrs. Fabi Tadi were around.
Furthermore, DW6 called by the 2nd Respondent under cross examination at page 217 of the record said that the 2nd Respondent got the disputed land by way of allocation from the local Government through the District Head. That before the land was allocated, it was not owned by anybody.
In addition, the
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2nd Respondent pleaded in paragraph 11 of his reply to the 1st Respondents statement of defence/counterclaim that the sale was between Buredi Tadi father of the 1st Respondent who bought the land now in dispute on behalf of the 2nd Respondent from one Ibrahim Manager Poshiya.
The question therefore is; from where did the 2nd Respondent derive his title to the land that the he allegedly sold and conveyed to the Appellant?
a) Was it by inheritance?
b) Was it a gift inter vivos from his late father?
c) Was it by allocation from the Local Government as DW6 claimed or
d) Was it by sale from Ibrahim Manager Poshiya?
It was submitted that the case of 2nd Respondent as highlighted above was full of contradictions and the Appellant who knew the 2nd Respondent and his relations ought to have investigated the 2nd Respondents title to the land before purchasing it. The Appellant, it was submitted had constructive knowledge that the 2nd Respondent had no title to the land but decided to go ahead and purchase the land. We were referred to Mohammed Vs. Mohammed (2013) 11 NWLR (Pt. 1310) 1.
It was submitted that the mere
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tendering of Exhibit G was not enough to justify the grant. We were referred to Amadi Vs. Chinda (2009) 10 NWLR (Pt. 1148) 107 Ariyo Vs. Adewusi (2010) 15 NWLR (Pt. 1215) 78.
It was submitted that the Appellant had failed to prove how the 2nd Respondent acquired title to the land in dispute culminating in the issuance of Exhibit G in his favour. Similarly the 2nd Respondent had failed to prove that he was in actual possession or that he was the one that effected the development on the land. The Court below was therefore justified in dismissing the claim of the Appellant.
On the other hand, the 1st Respondent not only tendered the customary right of occupancy over the disputed land but also proferred cogent and credible evidence to show that he was not only in possession of the land which he counterclaimed but led evidence of the development he carried out on the land.
The plaintiff has a duty to prove the precise area to which his claim relates. However, the burden will not arise where the identity of the land in dispute was never a question in issue. The issue will only arise where the defendant raises it in his statement of defence
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and supported by evidence.
Where the parties by the evidence adduced both oral and documentary, are agreed on the identity of the land in dispute the fact that different names are given to the land or the area where the land is located is not fatal to the party claiming such land. See Dada Vs. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 and Ogbu Vs. Wokoma (2005) 14 NWLR (Pt. 944) 118.
A defendant cannot counter claim for the land in dispute which identity he does not know. See Anyanwu & Ors Vs. Uzowuaka & Ors (2009) LPELR 515 SC page 36 A D.
On the identity of the land, the Court below dealt extensively with the issue at page 263 to 265 of the record in the following words:
I have examined the entire pleadings of the parties and their respective pieces of evidence regarding the identity of the land in dispute. I found as true that all the three parties (Plaintiff, 1st and 2nd defendants) including their witnesses are at ad idem as to identity of the disputed land. The argument of the plaintiffs counsel that the land claimed by the Plaintiff is located at Kentengereng Billiri, while DW2 Fibi
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Tadis land is different, because it is located at Bare and not Kentengereng is indeed misconceived and misleading. In fact, it can be deduced from the testimonies of the Plaintiff himself i.e. PW3, DW1 Yankong Tadi/1st defendant, DW2 Fibi Tadi, DW4 Jonathan Yakubu Molmela, DW Dauda Yakubu/2nd defendant, DW6 Yunusa Adamu (Galadiman Tangale and district head of Bare) that Kentengereng and Bare is one and the same area. Bare is a district and Kentengereng is a ward under it. Hence whether the disputed land is described to be located in Bare or Kentengereng is one and the same thing. In fact even Exhibits A, B, G, G1 and G2 tendered by the Plaintiff and the 2nd defendant confirmed that Bare and Kentengereng is one and the same area/place. This evidence is also corroborated by Exhibits A D and F.”
I have also found as true that the Plaintiff, the 1st and 2nd defendants including some of these witnesses in their testimonies made mention of the same/similar features and other related matters on this disputed land. This include the old four
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bedroom bungalow given to LCCN Church for worship, the holes dug and the buildings the plaintiff is alledging (sic) the 1st defendant carried out on the disputed land. All these pieces of evidence established that the parties know and are in agreement in respect of the identity of the disputed land.
Another reason advanced by the plaintiff for arguing that the parties are claiming two different pieces of land is the evidence of the plaintiff and the 1st defendant regarding the size of the disputed land. The plaintiff who testified as PW3 asserted in both his pleadings and evidence that the land he bought from the 2nd defendant is measuring 100ftx100ft. That on the other hand the 1st defendant and the content of Exhibits D and F stated that the land is 100ftx60ft. While DW2 Fibi Tadi said that the land is measuring 100ftx80ft. That these pieces of evidence are contradictory. No doubt the measurement of the disputed land given by DW1, DW2 and Exhibit D and F contain some discrepancies. But there is no evidence on record showing that such discrepancies had misled any of the disputing parties as to
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the identity of the land in contention.
It is clear from the foregoing that from the evidence adduced both oral and documentary, the parties are agreed on the identity of the land in dispute. As the Court below pointed out the parties are agreed that there is a bungalow on the land which was used by LCCN Church for worship. Apart from this the 1st Respondent who counterclaimed for the land could not and did not make the identity of the land an issue. Furthermore, as learned counsel for the 1st Respondent rightly pointed out the 2nd Respondent knew the identity of the land that was why he claimed to have sold it to the Appellant.
Issue 1 is therefore resolved against the Appellant and in favour of the 1st Respondent.
It is the law that contradictions in evidence of witnesses can only avail the opposite party where they are material and affect the live issue in the matter to the extent that they affect the fortunes of the appeal in favour of the party raising the issue. The law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on the issue in contention. What the law expects
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is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. See Usiobaifo Vs. Usiobaifo (2005) NWLR (Pt. 913) 665 and Nwokoro Vs. Onuma (1999) 12 NWLR (Pt. 631) 342.
It is instructive to note that this issue is an offshoot of issue 1 already resolved by the Court. Exhibits D and F tendered by the 1st Respondent through the land officer give the measurement of the land as 100x60ft. Under cross-examination, DW2 said the land is 100x80ft. See page 197 of the record. DW1 under cross examination said the land is 100x60ft. See page 189 of the record. It is clear from the above evidence that both Exhibits D and F and the testimony of the DW1 give the measurement of the 1st Respondents land as 100x60ft. It was only the DW2 who said it was 100x80ft. I do not see any material contradiction as regards the measurement of the land in the case of the 1st Respondents witnesses and Exhibits D and F tendered by him. It is for this reason too that the Court below at page 264 265 of the record
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of appeal in the judgment said there was some discrepancy in the evidence but that the discrepancy did not mislead anybody.
I do not agree with the submission of learned counsel for the Appellant that this was a contradiction and that it cast doubt in the 1st Respondents case. As shown above, only DW2 from the evidence led by the 1st Respondent said that the measurement of the land is 100x80ft. DW1 said it was 100×60 Exhibits D and F showed it was 100x60ft: This cannot be termed a material contradiction. It was a discrepancy. Even if it was a contradiction, it was not a material contradiction. It did not cast any doubt in the case of the 1st Respondent.
Issue 2 is also resolved against the Appellant and in favour of the 1st Respondent.
Where inadmissible evidence has been admitted, it is the duty of the Court not to act upon it. See A.G Leventis Vs. Akpu (supra) at page 654 and Olukade Vs. Alade (1976) 2 SC 183.
By virtue of Sections 102, 104 and 105 of the Evidence Act 2011, only certified true copies of photocopies of public documents are admissible in evidence. See Federal Airports Authority of Nigeria Vs. Wamal Express Services
26
(Nig) Ltd (2011) LPELR 1261 SC.
The Court below at page 279 281 of the record in the judgment stated as follows:
Exhibit D & F is the original and photocopy of the certificate of occupancy in favour of the 1st defendants mother (DW2 Fibi Tadi). While Exhibits G G1 and G2 are photocopies of the certificate of occupancy, the sketch plan and the departmental receipt all issued in the name of the 2nd defendant. I have examined the pleadings, evidence and submission of the parties relating to the said two certificates of occupancy in respect of the same disputed land. Base on the pieces of evidence on records, I am convinced that Exhibits D & F issued in the name of Fibi Tadi/DW2 (the 1st defendants mother) referred to the disputed land more than Exhibits G, G1 and G2 bearing the name of the 2nd defendant. In the first place, Exhibit D was issued first in time i.e. on 26th March, 1984, while Exhibit G was on 16th May 1985. Secondly the 2nd
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defendant admitted under cross examination that one piece of land cannot have two certificates. It is trite law that first in time is always stronger in law and he who is first in time has a better claim in law and equity. See ADELAJA VS FANOIKI (1990) 2 NWLR (PT 131) 137. Thirdly, Exhibits G, G1 are public documents by virtue of Section 102(a) of the Evidence Act 2011, as amended. And by virtue of Section 105 of the same Evidence Act, if their photocopies rather than the originals are to be tendered, they must be certified. The said Exhibits G, G1 and G2 are not certified. Fourthly, the 2nd defendant and the Plaintiff claimed in their oral evidence that the original of Exhibit G is with the plaintiff, but non of them plead (sic) this fact, nor did the plaintiff tender same. And fifthly, the evidence of DW4 Jonathan Yakubu Molmela created doubt in my mind as to the genuiness (sic) of Exhibit G. This DW4 a staff of Works department Billiri Local Government Council is the custodian of the Land transactions of the Local Government Council. He was summoned vide Exhibit
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E to produce copies of Exhibits D and G in the name of DW2 Fibi Tadi and the 2nd defendant Dauda Yakubu respectively. He stated that he found all the particulars of Exhibit D in their register. He produced and tendered duplicate copy of the said Exhibit D found in their register as Exhibit F. But for Exhibit G he said its records are missing in the same register (sic) and could not even traced (sic) its duplicate copy. The evidence of DW4 strengthened the case of the 1st defendant and at the same time weakened that of the plaintiff and the 2nd defendant.
To sum up on this existence of Exhibits D and G in respect of one and same disputed land; I am of the opinion that the mere acquisition of Exhibit G with all the above defects does not confer title on the 2nd defendant. His claim of transferring the said title to the Plaintiff cannot stand. The evidence adduced by the 1st defendant, the contradictory evidence of the 2nd defendant and the aforesaid defective features of Exhibits G G1 and
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G2 proved that such title never existed in favour of the 2nd defendant before and after the acquisition of Exhibit G. SEE KYARI VS ALKALI (2001) SC (PT 11) 192.
It is the above findings of the Court below that learned counsel for the Appellant is picking holes with. The position of the law as shown above is that the Court will not act on inadmissible evidence even if admitted without objection. Exhibits G, G1 and G2 were rejected by the Court below among other reasons because they are public documents. They are photocopies and they were not certified in accordance with Section 104 of the Evidence Act 2011. Section 104(1) and (2) of the Evidence Act provides as follows:
104 (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) Such certificate as is mentioned in Subsection (1) of this section shall be dated and
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subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
The Court below did not in the least raise any issue in chambers regarding Exhibits G, G1 and G2. The Court was merely evaluating the evidence before it. Exhibits G, G1, and G2 happened to be part of the evidence before it. Learned counsel for the Appellant has not faulted or sought to fault the finding of the Court below that the said Exhibits G, G1 and G2 are photocopies of public documents and that they were not certified. It is immaterial that they were admitted without objection or that they were not challenged at address stage by counsel. On this score alone, the Court below rightly preferred Exhibits D and F to Exhibits G, G1 and G2. But the Court below also stated why it preferred Exhibits D and F to Exhibits G, G1 and G2. See the portion of the judgment reproduced above. The reasons in my view are sound. The Court is entitled to evaluate evidence from its chambers. If it does not, how would it properly determine the matter
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before it. In expressing its views on the matter particularly the evidence before it, the Court cannot be accused of raising issues suo motu and determining them without calling on parties to address it. If it is so, then there could be no end to addresses of counsel and there may be no judgment by any Court. The Court did not raise issues suo motu and proceeded to resolve the issues without giving counsel the opportunity to further address it.
Issue 3 is resolved against the Appellant and in favour of the 1st Respondent.
For the relief of special damages to succeed, a plaintiff must specifically plead and support it with credible evidence. Anyone asking for special damages is to prove strictly that he suffered such special damages. He needs to adduce credible evidence of such a character as would suggest that he indeed is entitled to the award under that head. A Court should give adequate consideration to the evidence offered in support of a claim for special damages. If the accepted evidence possesses such probative value as preponderates, the case in favour of the person claiming then the award would be justified. See Kopek Construction Ltd
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Vs. Ekisola (2010) All FWLR 1038, Amadi Vs. Chinda (supra), A.G. Leventis Vs. Akpu (supra) and Odulaja Vs. Haddad (1973) 351.
At page 294 295 of the record of appeal the Court below in the judgment stated briskly as follows:
As regards to claim of special damages, I find as a fact that paragraph 28 (c) (1), (3), (4) and (5) have not been proved. On the other hand, paragraph 28 (c) (2) has been established haven been admitted in paragraph 12 of the plaintiffs statement of claim and statement on oath respectively, paragraph 2 of the 2nd defendants statement of defence and PW3 & DW5 evidence during cross examination.
When a fact is pleaded by the plaintiff and admitted by the defendant evidence on the admitted fact is irrelevant and unnecessary. See Bunge Vs. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 572. Before a Court decides whether or not there is an admission, it must consider the entire pleadings to come to a conclusion. See Buhari Vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1.
Paragraph 28 (c) (2) of the statement of defence and counterclaim which the Court below said was admitted is not a pleading
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but one of the many reliefs sought by the 1st Respondent in the counterclaim. Nowhere in the statement of claim and evidence of PW3 and DW5 did the Appellant admit the unpleaded counterclaim of N300, 000.00 special damages. Even if the unpleaded counterclaim of the 1st Respondent for that amount had been admitted, it would have gone to no issue as the claim for N300, 000.00 special damages was not pleaded by the 1st Respondent. The relief sought in paragraph 28(c) (2) of the counterclaim did not amount to a pleaded fact. The relief is to say the least vague and there was no way the Appellant could react to it. It is reproduced immediately here under:
(2) N300, 000.00 expended preparatory to continuing development on the land but stopped as workers became affraid (sic) of the implications of this suit.
The averment by the Appellants in paragraph 12 of the statement of claim and written statement on oath of the Appellant (PW3) that the 1st Respondent dug holes in the land like soakaway and started building same with cement blocks contrary to the usage he intended to use the land for were wrongly relied upon by the Court below as
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admission of an unpleaded claim of N300, 000.00 special damages. It was not even possible to admit a fact in the counterclaim which was filed after the statement of claim and written statement on oath of the Appellant had been filed. Be that as it may neither paragraph 12 of the statement of claim of the Appellant nor paragraph 12 of the Appellants written statement on oath is an admission of the unpleaded counterclaim of N300, 000.00. Paragraph 2 of the 2nd Respondents statement of defence is also not an admission of the unpleaded counterclaim of the N300, 000.00. It reads in part as follows:
2 … In further reply, the second Defendant admits that if the 1st defendant acted as averred in paragraph 12 thereof same constitutes trespass as the said land belongs to the plaintiff …
See page 36 of the record of appeal. By no stretch of the imagination, would it be said that this amounted to an admission of the N300, 000.00 counterclaimed by the 1st Respondent. I have also looked at the evidence of PW3 and DW5 under cross examination. There is nothing in them to suggest that the two witnesses admitted the unpleaded
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claim of N300, 000.00 special damages.
Although the 1st Respondent did not plead that he spent N300, 000.00 on items bought, the DW1 in his written statement on oath deposed as follows:
That the work I started on that building has been stopped as the workers I engaged are now afraid to continue as a result of this suit after I had bought items valued at over N300, 000.00.
It is the law that evidence led on a fact not pleaded goes to no issue and should be disregarded. See Amobi Vs. Amobi (1996) 8 NWLR (Pt. 469) 638 and Allied Bank (Nig) Ltd Vs. Akubueze (1997) 6 NWLR (Pt. 509) 374. As the above piece of evidence was nowhere pleaded in the counterclaim, it was rightly disregarded by the Court below. Apart from the fact that it was not pleaded, the evidence was not strict proof of the claim for N300, 000.00 special damages. The DW1 did not say what items he bought or/and how much each item cost.
It is clear from the foregoing that there was no basis for the grant of relief 28 (c) (2) by the Court below.
In contending that the Appellant was not given fair hearing, the learned counsel for the Appellant referred to
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the language of the Court which described argument of Appellants counsel as absurd and shallow. With due respect to learned counsel for the Appellant the use of the words absurd and shallow to describe argument of Appellants counsel cannot amount to lack of fair hearing in the entire case.
The burden is on a party alleging breach of fair hearing in a case to prove the breach, and he must do so in the light of the facts of the case. This is because the facts of a case and the facts only determine acts which constitute non-compliance with the principle of fair hearing. See Maikyo Vs. Itodo (2007) 7 NWLR (Pt. 1034) 443. The use of the words absurd and shallow in the judgment of the Court has nothing to do with the hearing. It cannot be suggested that the use of these two words had anything to do with the entire trial.
Issue 4 is therefore resolved partly in favour of the Appellant and partly in favour of the 1st Respondent.
On issue 5, learned counsel for the Appellant referred the Court to paragraph 15 of the 1st Respondents
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statement of defence in which he pleaded a letter written by the 2nd Respondent through his solicitor to 1st Respondent and submitted that the failure to tender the letter by the 1st Respondent amounted to withholding evidence. It is clear from the averment that the 1st Respondent averred that the 2nd Respondent in the letter claimed that the land belonged to the 2nd Respondent. In the circumstances, the 1st Respondent could not tender a document which supported not only the 2nd Respondents claim but by extension the case of the Appellant. It was for 2nd Respondent to tender the document being the maker. As he did not, he was the party that withheld evidence. Appellant was also supposed to tender the said letter if the letter was going to support his case. But he did not.
Learned counsel for the Appellant argued at lenght that the Appellants case was consistent all through while the 1st Respondents case was inconsistent. This argument is apparently not based on the premise that Appellants title to the land was dependent on the title of his vendor. As the Court below rightly pointed out, the case of the Appellant depended on
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whether the 2nd Respondent validly passed title to the land to the Appellant. In other words, did the 2nd Respondent have title to the land he claimed to have sold to the Appellant? The Court below did not have any difficulty in finding that the 2nd Respondent had no title to the land. Exhibits G, G1 and G2 were not evidence of title to the land. The other evidence which the 2nd Respondent led in proof of title to the land was so violently contradictory that the Court below rightly rejected it. For example, the 2nd Respondent claimed that the land devolved to him by inheritance after the death of his father. He also claimed that the land was given to him by his father while he was still alive in the presence of witnesses. One of the witnesses the 2nd Respondent called claimed that the land was allocated to the 2nd Respondent by the Local Government. Still yet the 2nd Respondent claimed that the land was bought for him from one Ibrahim Manager Poshiya.
Issue 5 is also resolved in favour of the 1st Respondent and against the Appellant.
Issues 1, 2, 3 and 5 having been resolved in favour of the 1st Respondent and issue 4 partly in favour of the
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Appellant, the appeal is allowed in part.
The appeal against the decision of the Court below dismissing the claim of the Appellant is hereby dismissed.
The order of the Court below awarding N300, 000.00 special damages against the Appellant and the 2nd Respondent jointly and severally in favour of 1st Respondent is hereby set aside. The judgment of the Court below in favour of the 1st Respondent as per the counterclaim is affirmed.
Parties to bear their respective costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have the privilege of reading in draft form the leading judgment of my learned Brother, James Shehu Abiriyi, JCA just delivered in this appeal.
I am at one with His Lordships line of reasoning and the conclusion reached in the said leading judgment that the appeal succeeds in part. I also abide by all the consequential orders contained therein.
SAIDU TANKO HUSSAINI, J.C.A.: I have read in advance the lead Judgment just delivered by my Lord, James Shehu Abiriyi, JCA. I agree with the said Judgment. I have nothing to add. The appeal is
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dismissed.
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Appearances:
Ayuba Adamu Esq.For Appellant(s)
Danladi Filibus Esq. for the 2nd RespondentFor Respondent(s)
>
Appearances
Ayuba Adamu Esq.For Appellant
AND
Danladi Filibus Esq. for the 2nd RespondentFor Respondent
