YUSUF & ANOR v. HWAKIS
(2021)LCN/15913(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, December 31, 2021
CA/YL/117/2020
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
1. SAIDU YUSUF 2. ABDULLAHI UMARU MAIKANO APPELANT(S)
And
ADI HWAKIS RESPONDENT(S)
RATIO:
THE PLAINTIFF SUCCEEDS ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE DEFENCE
It is trite that in a case for declaration of title, the plaintiff succeeds on the strength of his case and not on the weakness of the defence as rightly argued by the learned counsel to both parties. It is therefore the duty of the plaintiff to satisfy the Court from his pleadings and evidence adduced in support that he is entitled to the declaration sought. See, AKINOLA & ANOR VS. OLUWO & ORS (1962) LPELR – 25101 (SC) P. 3, PARAS. B – C, UMEADI & ORS VS. CHIBUNZE & ANOR (2020) LPELR – 49566 (SC) P. 50, PARAS. A – B, MOMOH & ORS VS. UMORU & ORS (2011) LPELR – 8130 (SC) P. 33, PARAS. B – D. and ODUNUKWE VS. OFOMATA (2010) 12 SCNJ 516 at 548 – 549. The plaintiff is expected to prove his title through any of the five ways recognized by law through cogent evidence in support of his claim. The proof of one of the five ways suffices, each of the five ways is independent of the other. See, OTUKPO VS. JOHN & ANOR (2012) LPELR – 25053 (SC) PP. 17 – 18, PARAS. E – A, OWHONDA VS. EKPECHI (2003) LPELR – 2844 (SC) P. 31, PARAS. A – B and OYADARE VS. KEJI & ANOR (2005) LPELR – 2861 (SC) P. 10, PARA. F. CHIDI NWAOMA UWA, J.C.A.
AN ACCEPTED PRINCIPLE ON AN INFERENCE DRAWN BY THE COURT
The learned counsel to the Appellants had also alleged that the decision of the trial Court is perverse. A perverse judgment was defined in RABIU VS. KANO STATE (1980) LPELR – 2936 P. 111, PARAS. B – D by his lordship Udoma, JSC thus:
“It is an accepted principle of law that when an appellant complains that an inference drawn by the Court below is absolutely unsupported by the evidence; or that the decision is so manifestly unreasonable, that no reasonable tribunal could have come to that conclusion on the evidence, then the appeal raises an issue of law, as such a decision would be regarded as perverse.” See, UDENGWU VS. UZUEGBU & ORS (2003) LPELR – 3293, PP. 14 – 15, PARAS. G – C, MAMONU & ANOR VS. DIKAT & ORS (2019) LPELR – 46560 PP. 53 – 55, PARAS. F – A, ADETAYO VS. OLATUNJI (2020) PP. 27 – 28, PARAS. B – D and ADEEKO VS. AMAECHI (2015) LPELR – 24653, PP. 27 – 28, PARAS. F – B. I hold that the Appellants did not prove that the judgment of the trial Court is perverse. CHIDI NWAOMA UWA, J.C.A.
A DENIAL OF FAIR HEARING IN A COURT PROCEEDINGS REQUIRES PROOF OF SPECIFIC ACTS OF SUCH DENIAL
The learned counsel had argued that the Appellants were not given a fair trial; I would say that the allegation was not established. It is not enough for a party in a case to brandish “lack of fair hearing” without proof of same. There was no proof of specific acts of such denial. See, my earlier decision in PERO VS. ALLASURE (2019) LPELR – 47145 PP. 12 – 13, PARA. C, NGADI VS. F.R.N. (2018) LPELR – 43636, P. 11, PARAS. A – E and OJONG VS. ITA (2017) LPELR – 43490, PP. 11 – 14, PARAS. F – B. A party that has alleged lack of fair hearing must prove the allegation from the record of proceedings in which the alleged breach occurred. It is not enough to allege in the air a breach or denial of fair hearing in the conduct of the proceedings without further showing in what manner the breach occurred from the records of the Court, since the breach would have occurred in the proceedings. See also IFEANYICHUKWU EJEKA VS. THE STATE (2003) 7 NWLR (PT. 819) PAGE 408 at 421, PARAGRAPHS C – E, INAKOJU VS. ADELEKE (2007) 4 NWLR (1025) 423 and OKOLI & ANOR VS. ADOL – ODIOKPU & ORS (2016) LPELR – 42106, P. 12, PARA. B. I hold that there was no breach of fair hearing that was established by the Appellants. CHIDI NWAOMA UWA, J.C.A.
THE IDENTIFICATION OF A LAND WITH CERTAINTY BEFORE THE DECLARATION OF TITLE IS GRANTED
See, EPI & ANOR VS. AIGBEDION (1972) LPELR – 1151 (SC) P. 8, PARAS. D – F, where his lordship Fatayi – Williams, JSC stated the position of the law in respect of the need to identify the land in which a declaration of title is sought thus:
“… It is also trite law that before a declaration of title is granted, the land to which it relates must be identified with certainty (see, UDOFIA VS. AFIA 6 W.A.C.A. 216 and KWADZO VS. ADJEI 10 W.A.C.A. 274). If it is not so ascertained, such as in the case on hand, the claim must fail and it must be dismissed (see, OLUWI VS. ENIOLA (1967) N.M.L.R. PAGE 339).”
See also AIYEOLA VS. PEDRO (2014) LPELR – 22915 (SC) PP. 31 – 32, PARAS. E – F and EKPEMUPOLO & ORS VS. EDREMODA & ORS (2009) LPELR – 1089 (SC) PP. 36 – 37, PARAS. F – D. The appellants were not able to give or show the exact location of the land/property they claimed apart from stating in their pleadings and evidence that it is at Shagari Low/cost Wukari, these are Plot Nos. 23A & B and 27A & B. The Appellants having failed to prove that the plots they claimed are the same as those claimed by the Respondent/counter claimant, the trial Court was right at page 221 of the printed records to have held as follows:
“… the Court find (sic) the evidence of the Defendant to be more convincing, compelling and also unassailed as to the fact that the plaintiffs did not proved (sic) that properties Nos. 23A & B and 27A & B are the same as properties Nos. 17 and 18.” CHIDI NWAOMA UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The High Court of Taraba State (hereafter referred to as the trial Court) presided over by Yakubu, J. on the 28th day of July, 2020 gave judgment against the Appellants who were then the plaintiffs.
The background facts are that the Appellants in their writ of summons before the trial Court claimed properties allotted as Plot Nos. 23A & B, and 27A & B which originally belonged to the then Federal Ministry of Works and Housing which were acquired by subsequent vendors by allocation through whom the Appellants derived title from.
The Respondent claimed the same properties as Nos. 17 & 18, traced their title to the same Federal Ministry of Works and Housing and in proof of same were said to have tendered a photocopy and uncertified receipt of payment at the trial. The Appellants made out that the Federal Ministry of Works and Housing from whom both parties claimed to have derived their root of title denied the title of the Respondent. It was made out that a staff of the Ministry through its authorized staff confirmed the properties in dispute in favour of the p laintiffs and denied title to the Respondent. At the close of the trial, the lower Court dismissed the claim of the Appellants and declared title in favour of the defendant. Aggrieved by the said decision the Appellants appealed to this Court and formulated the following six (6) issues for the determination of the Appeal thus:
1. “Whether the trial Court was not funtus officio when it pronounced the exclusion of one (1) of the four documents sought to be tendered by the Respondent (Defendant) and consequently admitted all the said four (4) documents without excluding the one so excepted (Ground 1).
2. Whether Exhibit “D3” constituted prime facie proof linked to properties plots no. 17 and 18 as asserted by the Respondent and same as evidence of act of possession. (Ground 2)
3. Whether the Respondent payment receipt Exhibit “D4” was wrongly admitted in evidence, and if so whether it can reasonably be hold (sic) to have affected the decision of the trial Court, and that the decision would not have been the same if Exhibit “D4” had not been admitted (Ground 3)
4. Whether the trial Court properly appraised the evidence before it, and if not whether the failure has occasion (sic) a miscarriage of justice (Grounds 4, 5 and 6).
5. Whether the learned trial judge breached the rule of fair hearing in the manner he exercised his discretion (Grounds 7 and 8).
6. Whether the judgment of (sic) trial Court was perverse” (Ground 9).
The Respondent on his part formulated the following three issues for the determination of the Appeal thus:
1. “Whether the Appellants were able to prove with cogent, compelling and credible evidence that plots No. 17 and 18 duly allocated to the Respondent to which he has been in peaceful possession from 1999 till date is plots 23 A & B and 27 A & B as claimed by the Appellants.
2. Whether the Appellants were able to prove their case with plausible and credible evidence as required by law to warrant the judgment of the trial Court in their favour.
3. Whether the Respondent (Counter Claimant) was able to produce & tendered (sic) legally admissible documents in proof of Plots Nos. 17 and 18 which was allotted (sic) and shown to him in 1999 by the allocation team from the Federal Ministry of Works and Housing Jalingo.”
In arguing the appeal, the learned counsel to the Appellant T. G. Gani Esq., adopted and relied on his brief of argument filed on 3/12/20 and his reply brief filed on 5/2/21, as his argument in this appeal in urging us to allow the appeal and set aside the judgment of the trial Court as well as the consequential orders made therein. In the alternative, we were urged to set aside the judgment of the trial Court and remit the matter back for trial by another judge. In arguing his issue one, it was submitted that the trial Court ought not to have admitted Exhibit “D1” as an Exhibit, that is the allocation letter with Ref. No. TR/CWH/313 VOL. 11, having excluded same by implication on the objection of the Appellants to the admissibility of two (2) documents, the Allocation Letter and the Payment Receipt, marked Exhibits “D1” and “D4” respectively sought to be tendered by the Respondent on the ground that Exhibit “D1” was doctored and Exhibit “D4” was a photocopied public document and no foundation laid for their admissibility. The trial Court had admitted all the documents sought to be admitted in evidence through the “DW3” except one document, page 185 of the printed records of appeal but, admitted Exhibit “D1” the allocation letter. It was argued that the Court after ruling on a matter cannot make another order concerning the same issue it had previously ruled upon. See, DINGYADI VS. INEC (NO. 2) (2010) 18 NWLR (PT. 1224) 154 at 186, NGERE VS. OKURUKET XIV (2017) 5 NWLR (PT. 1559) 440 at 499 and OYEFOLU VS. DUROSINMI (2001) 16 NWLR (PT. 738) 1 at 13.
In arguing his issue two, it was submitted that property Nos. 17 and 18 as claimed by the Respondent are distinct and different from property Nos. 17A and B, therefore, that the ground rent of the latter cannot cover the former. It was submitted that an admitted document need not be given a probative value but, a document could be admitted on the ground of relevancy but, the Court may not attach any weight to it. See NWABUOKO VS. ONWORDI (2006) ALL FWLR (PT. 331) 1234 at 1251. It was submitted that any evidence led by a party which is in conflict with the party’s pleadings goes to no issue and should either be expunged or discountenanced. See, ODOM VS. PDP (2015) 6 NWLR (PT. 1556) 527 at 565. Further, that where the pleadings do not tally with the evidence led, the issues would be resolved against such party. See, AJAO VS. ADEMOLA (2005) NWLR (PT. 913) 636 at 663.
It was the contention of the learned counsel to the Appellant that Exhibit “D3” was issued on 12/4/18, when the matter was pending before the Area Court Grade 1, No. 2 Wukari in anticipation of the suit before the trial Court filed on 6/3/19, pages 7, 43 and 44 of the printed records of appeal, reference was made to Section 83 (3) of the Evidence Act, 2011 (as amended) and paragraph 3(d) of the Respondent’s Statement of defence. It was concluded on this issue that the trial Court’s finding on Exhibit “D3” at page 206 of the printed records is unreasonable.
In arguing his issue three, it was submitted that Exhibit “D4”, payment receipt for two (2) units of two bedroom semi-detached houses at the Federal Low Cost Estate Wukari is a photocopy and a public document purportedly emanating from the Federal Ministry of Works and Housing, signed by the officials of the said Ministry, as evidence of payment of property Nos. 17 and 18. Circumstances under which secondary evidence may be given under Section 89 of the Evidence Act were highlighted which requires public documents to be certified. It was submitted that by the combined effect of Sections 88, 89(e), (f), 90(i), (c), 104 and 105 of the Evidence Act, 2011 (as amended), rendered a secondary evidence of a public document not certified inadmissible. It was submitted that Exhibit “D4” a public document is a photocopy (secondary evidence) which was not certified before it was tendered and admitted in evidence. It was argued that the trial Court was wrong to have admitted same in evidence. See, AROMOLARAN GOODWILL and TRUST INVESTMENT LTD VS. UMEH (2011) 8 NWLR (PT. 1250) 500 at 541, OGBORU VS. UDUAGHAN (2011) 2 NWLR (PT. 1232) 608 at 578. It was argued that the decision of the trial Court would have been different if Exhibit “D4” had been rejected or expunged from the records and that where there is no evidence of full payment of the purchase price there would be no valid sale and a claim for declaration of title would fail. See, OGUNDALU VS. MACJOB (2015) 8 NWLR (PT. 1460) 96 at 119. Also, that if Exhibit “D4” had been rejected in evidence, the Respondent would have nothing in defence and counter claim.
It was submitted that the Appellants who tendered Exhibits “P4A” and “P4B”, both dated 29/12/1998 in the names of Mallam Mustapha Sani and Alhaji Ataki Orume through whom they traced their title and payment for the two (2) bedroom semi-detached houses at Federal Low Cost Wukari, Nos. 23A & B and 27A & B respectively. It was argued that Exhibit “P3” confirmed the sale of properties Nos. 23A & B, and 27A & B on the subsequent owners, Mallam Sani Mustapha and Alh. Ataki Orume through whom the Appellants traced their title. It was argued that even though the trial Court found that the Appellants had established their case but, also found the Respondent on the fact that the properties claimed by the Appellants are not the same with those claimed by the Respondent, pages 214 – 215 and page 225 of the printed records of appeal. It was concluded on this issue that, the Appellants tendered Exhibits “P4A” and “P4B” being original copies of receipt of payments for property Nos. 23A & B and 27A & B and Exhibits “P1A”, “P1B”, “P2A”, P2B, P3 as well as Exhibits “P5A”, “P5B”, “P6”, “P7” and “P8”, pages 83 – 88 of the printed records of appeal.
In arguing issue four, the learned counsel to the Appellants challenged the evaluation of evidence done by the trial Court. It was submitted that the trial Court erred when it failed to consider the evidence of the DW2 under cross examination by the Appellants as to the identity of the land and properties in dispute and wrongly concluded that the Appellants did not cross examine the DW2 as to the identity of the land, page 183 of the printed records. It was contended that the trial Court failed to evaluate the oral evidence adduced by the Respondent alongside that of the Appellants. Reference was also made to paragraphs 4 and 6 of the Appellants’ statement of claim and paragraph 3(a) of the Respondent’s statement of defence/counter claim. It was submitted that the DW2 described the features on the land and that there is no property known as Nos. 17 and 18. It was argued that PW4 in his further statement on oath, paragraphs 3, 4 and 5 at pages 74 – 75 of the printed records were not discredited. It was submitted that the pleadings ought to be examined along with the evidence adduced in its support. See, ISAAC VS. IMASUEN (2016) 7 NWLR (PT. 1511) 250 at 264. It was contended that Exhibits “D3” and “D4” were improperly evaluated by the trial Court which resulted in a miscarriage of justice. It was concluded under this issue that it was not clear if Exhibit “D4” covered plot Nos. 17 or 18 and not both.
On issue five, it was submitted that though the evidence of the PW4’s further statement on oath, paragraphs 3 and 4, page 74 of the printed record of appeal was not impeached under cross examination and that a party seeking a declaration of title must succeed on the strength of his case and not on the weakness of the defence. It was argued that the trial Court failed to take into account the appellants’ reply to the Respondent’s statement of defence and counter claim and the PW4’s further statement on oath. Also, the evidence of the DW1, DW2 and DW3 under cross examination to the effect that the properties which the parties are claiming are the same, pages 112 – 113 and 120 of the printed records. See, ARIORI & ORS VS. MURAIMO ELEMO & ORS (1983) 1 SC 13 at 24. It was argued that where the properties are located was not in issue between the parties and that it was raised suo motu by the trial Court which breached the appellants’ right to fair hearing. See, OGUEBEGO VS. PDP (2016) 4 NWLR (PT. 1503) 446 at 482 – 483, INEC VS. OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (PT. 1498) 167 at 198 and MILITARY GOVERNOR LAGOS STATE VS. ADEYIGA (2012) 5 NWLR (PT. 1293) 291 at 319.
Under the sixth issue, the Appellant alleged that the judgment of the trial Court is perverse. In defining a perverse judgment, learned counsel relied on the case of ANPP VS. INEC (2005) ALL FWLR (PT. 245) 917 at 988. We were urged to intervene and set the judgment of the trial Court aside. See, ARUM VS. NWOBODO (2005) ALL FWLR (PT. 246) 1231 at 1265.
The learned counsel to the Respondent argued his issues one and two together. It was submitted that in a case for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case. See, ATANDA VS. ILIASU (2013) 18 WRN P. 1 at 9, AWODI & ANOR VS. AJAGBE (2015) VOL. 242 LRCN PAGE 99 at 108, PARAGRAPH 7. It was submitted that the burden of proof is on the plaintiff when issues have been joined. See, ERINLE VS. ALUKO (2014) 9 WRN P. 77 at 87 – 88. Further, that from paragraphs 4, 5, 6, 7, 8 and a statement of claim at pages 4 – 5 of the records of appeal the properties that the Appellants are claiming are Nos. 23A & B and 27A & B at Shagari Low Cost Wukari, Taraba State while the Respondent is claiming in his statement of defence/counter claim, paragraphs 3(a), (b) and 4(a) (b) at pages 42 and 43 of the printed records of appeal and Plot Nos. 17 and 18 in Shagari Low Cost, Wukari, Taraba State. It was submitted that the two sets of plots are not the same. It was the contention of the learned counsel to the Respondent that the four(4) witnesses that testified for the Appellants did not state that Exhibits P1A, P1B, P2A, P2B, P3, P4A and P4B were issued in respect of the same properties that were allocated and physically shown to the Respondent by the allocation team in 1999 as Plot Nos. 17 and 18 now in dispute. It was submitted that the Appellants failed to lead evidence in support of their averment on the assertion in paragraphs 1 and 5 of their reply to the statement of defence and are deemed to have abandoned their pleadings. See, OMODELE ASHABIEYA & 2 ORS VS. ALHAJI RISIKAKU OLOPADE & ANOR (2011) 11 NWLR (PT. 1259) PAGES 505 at 524, PARAGRAPHS C – D. Further, that the further evidence on oath of the PW4 at pages 74 – 75 of the printed records was not adopted by the witness so as to give the Respondent an opportunity to cross examine the witness which is therefore deemed withdrawn or abandoned and cannot be relied upon. The evidence of the PW1 was reviewed to the effect that he was not informed that Plot Nos. 17 and 18 did not belong to the Respondent, page 86 of the printed records of appeal and the evidence of the PW4 at page 93 of the records to the effect that he did not confirm Plot Nos. 17 and 18, these pieces of evidence were said to have run counter to the content of paragraphs 1 and 5 of the appellants’ reply to the Statement of defence and Counter Claim.
It was contended that the Appellants failed to sufficiently describe the location and boundary of the land and property that they claimed and the exact location of Plot Nos. 23A & B and 27A & B at Shagari Low Cost, Wukari. See ADDAH & ORS VS. UBANDAWAKI (2015) VOL. 241 LRCN, PAGE 1 at 10, PARAGRAPH 8. Also, that there was no proof that Plot Nos. 23A & B and 27A & B are actually Plot Nos. 17 and 18 belonging to the Respondent.
In arguing his issue three, it was submitted that in an action for declaration of title to land, one of the five ways for a claimant to prove his case is through the production of title document. See, JADI VS. SALAMI (2009) 27 WRN PAGE 34. The Respondent’s pleadings in paragraphs 3(a) – (f) and 4(a) – (b) of his statement of defence and counter claim was referred to, at pages 42 – 44 of the printed records of appeal as well as Exhibits D1, D2, D3 and D4 as proof of the Respondent’s title to Plot Nos. 17 and 18 at Shagari Low Cost Wukari.
It was submitted that the use of the words “except one” by the trial judge in admitting all the documents sought to be tendered in evidence, Exhibits D1 – D4 was a “slip” while reading the Ruling and that the Appellants were not in any way prejudiced by the slip. See ADEBAYO VS. ATTORNEY GENERAL, OGUN STATE (2008) 2 SCNJ 352 at 366 – 367. Further, that the trial Court could not have intended to use the word “except one” and gone ahead to admit all the documents after the Ruling, pages 118 – 119 of the printed records. See, ADEGBUYI VS. APC (2015) VOL. 240 LRCN PG. 1 at 8, PARAGRAPH 6. It was argued that the said slip did not occasion a miscarriage of justice. It was submitted that Exhibit D3 was issued in respect of Plot 17 and in the name of the Respondent and that the fact that on the face of it, the Federal Ministry of Works and Housing wrote Plot Nos. 17A and B did not negate the fact that it is in respect of Plot Nos. 17 and 18 belonging to the Respondent. It was submitted that minor contradictions in the evidence of the parties cannot vitiate such evidence. See, WACHUKWU VS. OWUNWANNE (2011) VOL. 197 LRCN PAGE 33 at 41, PARAGRAPH 5, KAYILI VS. YILBUK & ORS (2015) VOL. 244 LRCN, PAGE 108 at 125. On the other hand, it was argued that without Exhibit D3, the Respondent proved his acts of possession over Plot Nos. 17 and 18.
It was submitted that Exhibit D4 is an original copy and that the trial Court was right to have admitted it in evidence along with Exhibit D3, reference was made to WASSAH & ORS VS. KORA & ORS (2015) VOL. 239 LRCN P. 38 at P. 46, PARAGRAPH 5 to the effect that a document marked as an Exhibit is good evidence that can be relied on in the final decision. It was argued that the purported letter from the Federal Ministry of Works, at page 47 of the additional records of appeal was not utilized in the judgment of the trial Court because it was not properly before the Court, not having been tendered as an exhibit. See, NIG. PORTS PLC VS. BEECHAM PHARM. LTD & ANOR (2013) VOL. 217 LRCN PAGE 81 at 90, PARAGRAPH 5. We were urged to strike out the letter as it did not form part of the proceedings and was not front loaded as required by the rules of the trial Court. It was concluded on this issue that from the definition of what a perverse judgment is, the judgment of the lower Court is not perverse as it did not run counter to facts and admissible evidence, and did not take into account what it ought not to have taken into account. See, ANPP VS. INEC (2005) ALL FWLR (PT. 245) 917 at 988.
In his reply brief, the learned counsel to the appellants submitted that Order 25 Rule 5(1) of the Rules of the trial Court only relates to pleadings and not evidence through adopted witness’ statement on oath and further witness statement on oath. It was submitted that the further statement of the PW4 was filed with the plaintiffs’ reply to the Defendant’s statement of Defence on 20/5/19 and served on the Respondent within time before same was adopted on 25/9/19, page 90 of the printed records. It was argued that the law is that where witness’ statement on oath and further witness’ statement on oath are filed within time, the Court is enjoined to consider same. See ARARUME & ANOR VS. INEC & ANOR (2019) LPELR – 48397 (CA). It was concluded that the witness’ statement on oath of the PW4 and his further witness statement on oath are one and cannot be taken in isolation as long as it complied with Section 13 of the Oath Act, Laws of the Federation of Nigeria, 2004.
I have examined the issues formulated by both parties and would reformulate all the issues into a sole issue thus:
“Whether the trial Court was right to have dismissed the Appellants’ claim and given judgment in favour of the Respondent counter/claimant in holding that the Appellants were unable to prove that property Nos. 23A & B and 27A & B are the same as property Nos. 17 and 18 counter claimed by the Respondent?”
It is trite that in a case for declaration of title, the plaintiff succeeds on the strength of his case and not on the weakness of the defence as rightly argued by the learned counsel to both parties. It is therefore the duty of the plaintiff to satisfy the Court from his pleadings and evidence adduced in support that he is entitled to the declaration sought. See, AKINOLA & ANOR VS. OLUWO & ORS (1962) LPELR – 25101 (SC) P. 3, PARAS. B – C, UMEADI & ORS VS. CHIBUNZE & ANOR (2020) LPELR – 49566 (SC) P. 50, PARAS. A – B, MOMOH & ORS VS. UMORU & ORS (2011) LPELR – 8130 (SC) P. 33, PARAS. B – D. and ODUNUKWE VS. OFOMATA (2010) 12 SCNJ 516 at 548 – 549. The plaintiff is expected to prove his title through any of the five ways recognized by law through cogent evidence in support of his claim. The proof of one of the five ways suffices, each of the five ways is independent of the other. See, OTUKPO VS. JOHN & ANOR (2012) LPELR – 25053 (SC) PP. 17 – 18, PARAS. E – A, OWHONDA VS. EKPECHI (2003) LPELR – 2844 (SC) P. 31, PARAS. A – B and OYADARE VS. KEJI & ANOR (2005) LPELR – 2861 (SC) P. 10, PARA. F. It is clear from the Appellants’ statement of claim that the plots the appellants claimed at the trial Court are Plot Nos. 23A & B and 27A & B at Shagari Lowcost Wukari, Taraba State while the Respondent in his defence/counter claim, claimed Plot Nos. 17 and 18 in the same Shagari Lowcost Wukari, Taraba State. On the part of the Appellants, it was made out that Plot Nos. 17 and 18 belonging to the Respondent as pleaded by the Respondent and now in dispute is the same as Plot Nos. 23A & B and 27A & B as pleaded by the Appellants, and made out to belong to the Appellants. The Appellants who were the plaintiffs at the lower Court who made out that the two sets of numbers were of the same plots had the duty to prove same by virtue of Sections 13(1) & (2) and 132 of the Evidence Act, 2011. The question is: whether the Appellants at the trial Court discharged this burden? I would hereunder reproduce paragraphs 1 and 5 of the Appellants’ reply to the Respondent’s Statement of Defence/Counter Claim at pages 72 – 73 of the printed records of appeal;
“1. The plaintiffs vehemently denies the averment in paragraphs 3(c), (e), 4(a), (b) and 5 of the Statement of defence, and in response the plaintiffs state that the plot in dispute is plot Nos. 23A & B and 27A & B allotted in the name of Mal. Mustapha Sani and Alh. Ataki Orume at the Federal Low – Cost (Shagari) Wukari, and not plot Nos. 17 and 18 as alleged by the Defendant.
5. The plaintiffs state further investigation by the Federal Ministry of Power, Works and Housing revealed that there is no allocation in the past or present in the name of the Defendant from its record.”
Exhibits P1A (letter of allocation by Federal Ministry of Works and Housing, Jalingo), P1B (letter of allocation by Federal Ministry of Works and Housing, Jalingo), P2A (Acceptance of Housing Allocation in Taraba State), P2B (Acceptance of Allocation in Taraba State), P3 (Application for Confirmation of Sale of Properties – Nos. 23A & B and 27A & B at the Federal Low Cost Housing, Estate, Wukari, Taraba State), P4A (Revenue Collector’s Receipt) and P4B (Revenue Collector’s Receipt) were all issued in respect of the same property, Plots 23A & B and 27A & B claimed by the Appellants. I have examined the evidence adduced by the Appellants, PW1 – PW4, all was centred around Plot Nos. 23A & B and 27A & B, there was no nexus with Plots 17 and 18 claimed by the Respondent who made out that same was allotted to them by the Ministry of Works and Housing, Jalingo in 1999. It is noteworthy that none of the Appellants’ witnesses gave evidence challenging the existence of Plots 17 and 18 nor to the effect that the plots are the same as Plots 23A & B and 27A & B. It is the law that pleadings cannot constitute evidence. Averments in pleadings on which no evidence is adduced are deemed to have been abandoned, mere averment without proof of the facts pleaded does not constitute proof of such facts, unless such facts are admitted. In this case, the averments in the appellants’ reply, paragraphs 1 and 5 were not admitted by the Respondent who on the other hand counter claimed, making out that the plots claimed by the Appellants are not the same as Plots 17 and 18 claimed by the Respondent. On failure to call evidence in support of pleadings, see, OMOBORIOWO & ORS VS. AJASIN (1984) LPELR – 2643 (SC) P. 26, PARAS. B – D, UZODINMA & ANOR VS. IHEDIOHA & ORS (2020) LPELR – 50260 (SC) P. 50, PARAS. B – D, IFETA VS. S.P.D.C. NIG. LTD. (2006) LPELR – 1436 (SC) P. 10, PARAS. C – G and my earlier decision in BANJOKO & ORS VS. OGUNLAJA & ANOR (2013) LPELR – 20373 (CA) P. 25, PARA. A where simply put, I held that:
“It is trite that pleadings without evidence go to no issue.”
The appellants did not lead any evidence in support of their assertions in paragraphs 1 and 5 of their reply to the statement of defence/counter claim to the effect that the Exhibits earlier highlighted in this judgment in respect of plot Nos. 23A & B and 27A & B are the same as Plot Nos. 17 and 18 allocated to the Respondent. At page 86 of the printed records of appeal, the PW1 (2nd Appellant) under cross examination as to the identity of the land which the Appellants claimed testified as follows:
“It is true that myself as a person was not shown plots Nos. 23 and B and 27A and B but they showed the person that I bought same from them. It is true that the Ministry of Works and Housing did not tell me that Plots 17 and 18 do not belong to the Defendant.”
The PW1 was not shown the plot that the appellants claimed. The person that the appellants were said to have bought the land from who were said to have been shown the land did not testify as to confirm the plots he sold to the Appellants. In the same vein, the PW4 (Ogwuji Tana Charles) then a staff of the Federal Ministry of Works and Housing, Jalingo, the Zonal Town Planning Officer, in his statement on oath at pages 23 – 24 of the printed records, paragraphs 5 and 6 stated as follows:
5. “That the documents which the plaintiffs presented through their solicitor for verification and authentication are as follows:
(i) Letter of allocation for disposal of House in Taraba State in the names of Mal. Mustapha Sani and Alh. Ataki Orume.
(ii) Revenue collectors Receipt of the Federal Republic of Nigeria in the names of Mal. Mustapha Sani and Alh. Ataki Orume dated 29/12/1998.
(iv) Sales of conferment of ownership by Federal Ministry of Works and Housing, Jalingo in the name of an Alh. Ataki Orume.
6. That I verified the above documents listed in paragraph (5) above and found them to be genuine and relate to the properties allotted Nos: 23A & B and 27A & B in the names of Mal. Mustapha Sani and Alh. Ataki Orume respectively.”
Under cross examination, the PW4 testified that as at 1998 – 1999 when the allocations were made, he was not a staff of the Federal Ministry of Works and Housing and was not part of the team that allocated the Shagari Housing Estate in 1998 – 1999, pages 92 – 93 of the printed records of appeal. At page 93, under cross examination the PW4 testified thus:
“The confirmation I mentioned in paragraphs 5 and 6 of my statement on oath are in respect of plots Nos. 23A & B and 27A & B and not in respect of Plots 17 and 18. I did not physically go to Wukari to show the plaintiffs Plots 23A & B and 27A & B but it is based on record in the office.”
(underlined mine for emphasis)
From the above testimony, it is clear that the PW4 confirmed the Appellants’ allocation on paper in his office, not physically identified on land. The PW4 was therefore not in a position to confirm that plots 23A & B and 27A & B are the same as plots 17 and 18 claimed by the Respondent.
From the evidence adduced by the Appellants, Exhibit “P” series earlier listed in this judgment were not issued in respect of Plots 17 and 18 claimed by the Respondent now in dispute, shown to the Respondent by the allocation team from the Federal Ministry of Works and Housing, Jalingo in 1999. It is the law that a party seeking a declaration of title to land where injunctive orders were also sought is duty bound to describe the location and boundary of the land with certainty for him/her to succeed, where he fails to do so, his claim would also fail. See, EPI & ANOR VS. AIGBEDION (1972) LPELR – 1151 (SC) P. 8, PARAS. D – F, where his lordship Fatayi – Williams, JSC stated the position of the law in respect of the need to identify the land in which a declaration of title is sought thus:
“… It is also trite law that before a declaration of title is granted, the land to which it relates must be identified with certainty (see, UDOFIA VS. AFIA 6 W.A.C.A. 216 and KWADZO VS. ADJEI 10 W.A.C.A. 274). If it is not so ascertained, such as in the case on hand, the claim must fail and it must be dismissed (see, OLUWI VS. ENIOLA (1967) N.M.L.R. PAGE 339).”
See also AIYEOLA VS. PEDRO (2014) LPELR – 22915 (SC) PP. 31 – 32, PARAS. E – F and EKPEMUPOLO & ORS VS. EDREMODA & ORS (2009) LPELR – 1089 (SC) PP. 36 – 37, PARAS. F – D. The appellants were not able to give or show the exact location of the land/property they claimed apart from stating in their pleadings and evidence that it is at Shagari Low/cost Wukari, these are Plot Nos. 23A & B and 27A & B. The Appellants having failed to prove that the plots they claimed are the same as those claimed by the Respondent/counter claimant, the trial Court was right at page 221 of the printed records to have held as follows:
“… the Court find (sic) the evidence of the Defendant to be more convincing, compelling and also unassailed as to the fact that the plaintiffs did not proved (sic) that properties Nos. 23A & B and 27A & B are the same as properties Nos. 17 and 18.”
I cannot fault the above view of the trial Court. The learned counsel to the Appellants faulted the trial Court not utilizing the further witness’ statement on oath by the PW4. The learned counsel to the Respondent had argued that the said further witness’ statement on oath was not adopted by the witness; this was not countered by the Appellants. The position of the law is clear on unadopted statement on oath by a witness as in this case a prospective witness. The appellants have not argued that the said further statement on oath was adopted by the witness, PW4. When the PW4 testified, his further statement on oath was not adopted, pages 92 and 93 of the records. The adoption of the written deposition is similar to examination in chief, the witness would then be cross examined if need be. Where a witness fails to adopt his written furt her statement, the statement cannot be used as material in the proceedings to determine the pending matter, same would be deemed abandoned. See, NWALUTU VS. NBA & ANOR (2019) LPELR – 46916 (SC) PP. 25 – 27, PARA. B, GOAR VS. DASUN & ORS (2009) LPELR – 4205 (CA) PP. 26 – 27, PARAS. A – C, OBEYA VS. OKPOGA MICROFINANCE BANK LTD (2019) LPELR – 47615 (CA) P. 23, PARAS. B – F and IDRIS VS. ANPP (2008) 8 NWLR (PT. 1088) 1, 97 and 153. In the present case, the Respondent would have been denied the opportunity of cross examining the PW4 on his further statement. The further statement of the PW4 was not properly before the Court and therefore did not form part of the records of the Court to have been utilized in the judgment of the trial Court. The Court is not permitted to act on any document neither tendered nor admitted in evidence before the Court, in the present case a further statement not adopted by the witness as part of his evidence which would have been subjected to cross examination by the Respondent. The trial Court was right not to have relied on same.
In proof of his counter claim in respect of Plots 17 and 18 as pleaded in paragraphs 3(a) – (f) and paragraphs 4(a) and (b) of the Respondent’s statement of defence, pages 42 – 44 of the printed records the Respondent tendered Exhibits D1, D2, D3 and D4 documents that emanated from the Federal Ministry of Works and Housing, Jalingo, which was allocated to the Respondent at the Shagari Lowcost, Wukari in respect of Plots 17 and 18, now in dispute. The Appellants’ learned counsel had argued that the trial Court admitted all the documents above in evidence but, excluded one while reading the Ruling, which was a slip. I am at one with the argument of learned counsel to the Respondent that the said pronouncement was a “slip” which any Court could make, considering the fact that all the exhibits had been admitted in evidence and considering the contents of Exhibit D3 which is clearly in respect of Plots 17A and B claimed by the Respondent.
Looking at Exhibit “D” series there is nothing to show that Plot Nos. 23A & B and 27A & B are the same as Plots 17 and 18. These exhibits are clearly in respect of Plots 17 and 18 allocated to the Respondent. On the other hand, the PW4 (a staff of the Federal Ministry of Works) whose office had the records and details of the allocation by his office was not confronted with Exhibits D1, D2, D3 and D4 to enable him confirm if these documents were issued in respect of Plots 17 and 18 or otherwise.
The learned counsel to the Appellants had argued that Exhibit “D3” a receipt for the ground rent paid was in respect of Plots 17A & B and not Plots 17 and 18. I earlier held in this judgment that the Appellants’ claim is in respect of Plots 23A & B and 27A & B and not Plots 17 and 18. The appellants did not identify the land they claimed physically on ground while the Respondent knew Plots 17 and 18 on ground. If the revenue receipt labeled the Respondent’s plot as Plots 17A & B instead of 17 and 18, it is immaterial. The Respondent knew the land he claimed which he could identify with or without Exhibit “D3”. The same plots could be identified on ground with or without numbering, as is common with government allocations, moreso the location of the plots the Respondent claimed had been certified by the allocating body. Further, Exhibit “D3” was issued in the name of the Respondent in respect of Plot 17 belonging to the Respondent; it is immaterial that the Federal Ministry of Works wrote Plots 17A & B on Exhibit “D3”, it is a minor discrepancy. The appellants did not claim Plot 17. The Respondent testified as the DW3 and described his plots, which were marked with beacons. The Respondent also gave details of how he got the allocation of the plots and tendered Exhibits “D1, “D2”, “D3” and “D4” in proof of his title to the land in dispute, Plots 17 and 18. The certainty of the land claimed by the Respondent was neither challenged nor controverted by the Appellants, which the Appellants ought to have done through cross examination of the Respondent’s witnesses.
At pages 224 – 225 of the printed records, the trial Court found as follows:
“… at the locus–in–quo, parties all agreed that the properties thereon are the ones in dispute. To this end, the Court find (sic) the identity of the land and or properties the Defendant/Counter Claimant is claiming to have been established with certainty. Moreso, the plaintiffs did not even cross examine the Defendant’s witnesses regarding their testimonies in respect of the identity of the land and or properties which the Defendant/Counter Claimant is counter claiming…
Flowing from the foregoing therefore, the Court is satisfy (sic) that the Defendant/Counter claimant has proved with certainty and precision the identity and location of the properties Nos. 17 and 18 as required by law to be entitled to a declaration of title on same.”
I cannot fault the sound reasoning and decision of the trial Court. From all of the above, the Appellants claimed title to Plots 23A & B and 27A & B while the Respondent Counter/Claimant established his title to Plot Nos. 17 and 18 all traced to the Federal Ministry of Works and Housing. The trial Court rightly found that the two sets of plots claimed by the parties are not the same from the parties’ pleadings and evidence in support. The Appellants made it clear that the properties they claimed are Plots 23A & B and 27A & B and not Plots 17 and 18. If the plots were the same, the Appellants should have made it known to the trial Court on the visit to locus in quo in the presence of both parties, this they failed to do. The PW3 (Jibrin Musa Sangari) testified that the plots he bought are plot Nos. 23A & B and 27A & B which he subsequently sold to the 2nd Appellant and not plot Nos. 17 and 18 claimed by the Respondent.
The learned counsel had argued that the Appellants were not given a fair trial; I would say that the allegation was not established. It is not enough for a party in a case to brandish “lack of fair hearing” without proof of same. There was no proof of specific acts of such denial. See, my earlier decision in PERO VS. ALLASURE (2019) LPELR – 47145 PP. 12 – 13, PARA. C, NGADI VS. F.R.N. (2018) LPELR – 43636, P. 11, PARAS. A – E and OJONG VS. ITA (2017) LPELR – 43490, PP. 11 – 14, PARAS. F – B. A party that has alleged lack of fair hearing must prove the allegation from the record of proceedings in which the alleged breach occurred. It is not enough to allege in the air a breach or denial of fair hearing in the conduct of the proceedings without further showing in what manner the breach occurred from the records of the Court, since the breach would have occurred in the proceedings. See also IFEANYICHUKWU EJEKA VS. THE STATE (2003) 7 NWLR (PT. 819) PAGE 408 at 421, PARAGRAPHS C – E, INAKOJU VS. ADELEKE (2007) 4 NWLR (1025) 423 and OKOLI & ANOR VS. ADOL – ODIOKPU & ORS (2016) LPELR – 42106, P. 12, PARA. B. I hold that there was no breach of fair hearing that was established by the Appellants.
The learned counsel to the Appellants had also alleged that the decision of the trial Court is perverse. A perverse judgment was defined in RABIU VS. KANO STATE (1980) LPELR – 2936 P. 111, PARAS. B – D by his lordship Udoma, JSC thus:
“It is an accepted principle of law that when an appellant complains that an inference drawn by the Court below is absolutely unsupported by the evidence; or that the decision is so manifestly unreasonable, that no reasonable tribunal could have come to that conclusion on the evidence, then the appeal raises an issue of law, as such a decision would be regarded as perverse.” See, UDENGWU VS. UZUEGBU & ORS (2003) LPELR – 3293, PP. 14 – 15, PARAS. G – C, MAMONU & ANOR VS. DIKAT & ORS (2019) LPELR – 46560 PP. 53 – 55, PARAS. F – A, ADETAYO VS. OLATUNJI (2020) PP. 27 – 28, PARAS. B – D and ADEEKO VS. AMAECHI (2015) LPELR – 24653, PP. 27 – 28, PARAS. F – B. I hold that the Appellants did not prove that the judgment of the trial Court is perverse.
I am of the view that the Respondent’s acts of possession on Plots 17 and 18 were not dislodged by the Appellants. On the other hand even if Exhibits 3 and 4 are disregarded from the Respondent’s pleadings and the evidence adduced in their support, the Respondent proved his counter claim and that he is entitled to the reliefs sought.
In the final analysis, I hold that the Appellants failed to establish their entitlement to the reliefs sought while the Respondent proved his counter claim. The appeal is without merit, I dismiss it and affirm the judgment of the trial Court in suit No. TRSW/6/2019 delivered on 28th July, 2020.
Parties to bear their respective costs.
BITRUS GYRAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother C. N. UWA, JCA. I agree with and adopt as mine the decision in the lead judgment that this appeal lacks merit. I also dismiss this appeal and abide by the consequential order as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading in advance the draft copy of the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA, JCA. I am in agreement with the reasoning and conclusion reached by my learned brother that the appeal is bereft of merit and should be dismissed. I also dismiss same with nothing further to add.
Appearances:
T .G. Gani, Esq. For Appellant(s)
Moses Yusuf, Esq. For Respondent(s)
