Yakubu Wambai V. Jafaru Musa (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A
The plaintiff now Respondent claimed in the court below the following reliefs against the Defendant now Appellant:-
(a) A declaration that the piece of land situate and lying at Zhin village in Bosso Local Government belonged to the Plaintiff’s family.
(b) A declaration that the defendant is not entitled to the statutory right of occupancy in certificate of occupancy NGS 22055 issued to him as it was illegally and fraudulently obtained by him.
(c) An order of revocation of certificate of occupancy NGS 22055 issued to the defendant covering the land in dispute
(d) An order of perpetual injunction restraining the defendant, his agents or privies or any other person claiming title over the land through the defendant from tampering or interfering with the land in dispute in any manner detrimental to the interest of the plaintiff’s family.
(e) Substantial cost.
The Plaintiff/Respondent had commenced this action at the High Court Minna in Niger State and presided over by Justice Sadiq Abiya who delivered the judgment on the 30th November 2006 found for the Respondent hence this appeal by the Defendant/Appellant.
FACTS
The subject matter of the dispute is the piece of land situate and lying at Zhin village at Pyata village area in Bosso Local Government Area of Niger State. In proof of his claim to declaration of title and other reliefs the Respondent as plaintiff had called 6 witnesses with the Appellant as PW6. The Appellant in defence called 2 witnesses in his defence and relied on his testimony as PW6.
From the nature of his pleadings and the evidence of all his witnesses it is clear that the Defendant/Appellant was relying on historical evidence in proof of his claims. In all three (3) exhibits were tendered and admitted and marked as A,B,C. Exhibit A was tendered by the Respondent through PW6, under a subpoena (C of o NO. NGS 22055) while B and C were tendered by the Appellant during cross-examination of PW6.
Learned counsel for the Appellant arguing the appeal after adopting their Brief filed on 3/7/07, in it raised two issues which are:-
1. Whether having regarded to the pleading of the parties and the evidence adduced at the trial, the trial court acted properly in entering judgment in favour of the Respondent.
2. Whether PW6 can be said to be a witness for all intents and purposes against the interest of the plaintiff who called him.
The Respondent in their Brief of Argument filed on 28/2/08 and deemed on 7/7/08 raised a preliminary objection on the following grounds:-
1. The 3rd ground of appeal did not emanate, from the decision of the lower court.
2. The ground did not attack any ratio decidendi
Mr. Sulaiman for the Respondent raised a single issue to the main appeal and it is:-
Whether in view of the state of pleadings and the evidence the judgment of the Lower Court was correct
In keeping with the propriety in adjudication the preliminary objection has to be taken first before the other issues in the main appeal as the court has to know if it can proceed further after determining the objection. The two issues raised herein being similar I shall couch my issue for a better understanding of what is at stake and it is thus:-
Whether the 3rd ground of appeal emanated from the Decision of the Lower Court as to the decision being the ratio decidendi?
PRELIMINARY OBJECTION
Mr. Sulaiman for the Respondent stated that it is trite that a ground of appeal must complain against a live issue before the lower court and not just against any statement made by the court which was not the reason for its decision. That the number of witnesses called or not called by the parties did not play any role in the decision of the lower court in finding for the respondent. That it is rather the credible evidence rather than the correct number of witnesses called that formed the basis of the court’s decision and the correct number of witnesses was not even pronounced upon by the court. He cited Laimie v. D.P.M. & Services Ltd (2006) All FWLR (pt. 296) 775, Fatobi v. Ogundausi (2003) FWLR (pt. 154) 561 at 585; Kwada v. Zira (2002) FWLR (pt.112) 113.
Learned counsel stated that the appellant’s 3rd grounds of appeal states that “the court erred in law when he held that the plaintiff called five witnesses while the defendant called 3 witnesses including himself” and that this bare statement by the Lower Court is what the appellant elevated to a ratio decidendi and framed his 3rd ground of appeal from. That since that ground of appeal does not attack the ratio decidendi, that ground is incompetent and should be discountenanced. He cited Lawson v. Afani Continental Co. (Nig) Ltd (2002) FWLR (pt. 109) 1736; C.S.S. Bookshops Ltd v. R.M.M.C. Rivers State (2006) All FWLR (pt. 319) 819 at 851.
Mr. Sulaiman further contended that the appellant misdirected the court by failing to draw attention of the court to page 60 lines 22 – 25 of the Record where the lower court rightly stated that Respondent called 6 witnesses including the defendant while the defendant called two witnesses. Also that the particulars of the 3rd ground of appeal were at variance with the said ground particularly, particulars (c) & (d). That (d) is a separate ground of appeal subsumed in the 3rd ground since the particulars are not related to the ground and so should be struck out. He cited Udoete v. Hill (2003) FWLR (pt. 143) 362 at 397.
He stated that an incompetent ground of appeal and issues formulation therefrom rob the court of any competence to adjudicate.
He referred to Inyang v. Ebong (2002) FWLR (pt. 125) 701 at 734 – 735; Gabari v. 110ri (2003) FWLR (pt. 177) 901; Jikamshi v. Matazu (2004) All FWLR (pt. 230) 1077 at 1093-1094.
Mr. Sallawu learned counsel for the Appellant utilising their Reply on point of law filed on 7/3/08 contended that ground 3 of the ground of Appeal was a “live issue” even at the Lower Court let alone at this Appeal as the issue of who called who and the status of PW6 was an issue for determination before the lower court which was brought upon by the observation of counsel to the Plaintiff/Respondent at the lower court. That the ground of appeal having arisen from the judgment, ruling or decision or any pronouncement of the court is competent. He cited MBN PLC v. Nwodo (2005) 14 NWLR (pt.945) 389,
This preliminary objection is both irritating and trivial as the learned counsel for the Respondent is asking this court without going into the matter to start the surgical amputation of grounds, of appeal or the scanning of the various words in the grounds of appeal in other to decipher the competence or otherwise of the appeal. These attempts if taken seriously bear the risk of chasing shadows instead of considering the substance of the matter. That cannot be done at this stage without going into the appeal proper especially since a novel or strange procedure was adopted by the same Respondent when he called the Appellant as witness for him as plaintiff. That set off a colouration which would create a risky position if a ground of appeal is to be struck out now where the matter of how many witnesses each party called is being disputed.
The position taken by the Appellant through Mr. Sallawu on his behalf seems the correct position when he said ground 3 was a live issue even at the court below and so would remain a live issue now as to the status of PW6 and so that ground at this point is competent. I agree with that as Respondent is estopped to follow his line of reasoning at this stage.
It is for the above stated reason that I find this preliminary objection and the reason thereof unmeritorious. This is because a man by his word or conduct willfully endeavours to cause another to believe in a certain state of things which he first knows to be false and if the second believes in such state of things and acts upon his belief, he who knowingly made the first statement is estopped from asserting afterwards that such a state of things does not exist at the time. Thus, once a party either by his word or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it, he cannot later question the legality of the act he has sanctioned to the prejudice of those who have given faith to his word. Inyang v. Ebong (2002) 2 NWLR (pt. 751) 284 at 334; Iga v. Amakiri (1976) 2 SC 1; Horicon Ltd v. Wasurum (1987) 4 NWLR (pt. 66) 646; Ikpuku v. Ikpuku (1991) 5 NWLR (pt. 193) 571; Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196) 127; Akanni v. makanju (1978) 11 – 12 SC 13. For the reasons above stated I dismiss this objection.
ISSUE NO. 1
Whether having regarded to the pleadings of the, parties and the evidence adduced at the trial, the court acted properly in entering judgment in favour of the Respondent?
Mr. Sallawu for the Appellant stated that it is an elementary principle of law that when ever a person is found to be in possession of a piece of land in dispute other than the person claiming the ownership of the land, reputable presumption is created. He referred to Section 146 of the Evidence Act. This presumption created by Section 146 E – A can only be rebutted where the plaintiff. Produced credible and cogent evidence in pleadings and evidence before the court. That this evidence must be pleaded and adduced before the court must necessarily prove one of the five ways of proving title to land, amongst which is the evidence of traditional history. He cited Lawson v. Ajibulu (1997) 6 SCNJ 1 at 2.
Learned counsel stated on that the burden placed on the plaintiff in an action for title to a disputed land is static and never shifts until it is discharged thus, it is required that the Plaintiff must rely on the strength of his own evidence and not on the weakness of the Defendant’s case (if any). That if the burden is not discharged, the weakness of the Defendant’s case will not help him and the proper judgment will be for the Defendant. He referred to Anaboronye v. Nwakaihe (1997) 1 SCNJ 161 at 163; Osafile v. Odi (1994) 2 SCNJ 1 at 3; Clay Industries v. Aina (1997) 7 SCNJ 491 at 494.
He stated on that it is clear from the pleadings and evidence adduced before the trial court that the parties to the suit were relying on traditional history as their root of title. That in proof of his suit the Respondent (plaintiff in court below) -who was relying on traditional history in proof of his title was required to plead and give evidence on the following:-
(a) who founded the land
(b) how he founded the land
(e) particulars of intervening owners through who he claims. He cited Anaboronye v. Nwakaihe (supra) 8: Osafile v. Odi (supra) 4 at 8; LawaI v. Olufobi (1996) 12 SCNJ 376 at 377.
Learned counsel for the Appellant submitted further that Respondent’s pleading as plaintiff at the trial court had fallen short of the requirement of the law in relation to what is required to be pleaded when a piece of land is in dispute, and the testimonies of the plaintiff’s witnesses in support of the pleaded facts were not only insufficient they are contradictory, implausible, conflicting and almost completely inconsistent with the facts pleaded by the Plaintiff. He referred to paragraphs 3 and 5 of the statement of claim and the testimony, of PW1.
Mr. Sallawu of counsel went on to say that evidence of particulars of intervening owners in proof of title to a dispute are material and relevant points to the claim of any plaintiff in an action for title to land and where as in this case a variance occurs between the pleading and evidence adduced the claim must fail and should be dismissed since they cast a doubt on the case. He cited Okhuarobo v. Aigbe (supra); Falomo v. Onakanmi (2005) 11 NWLR (pt. 935) 126 at 132 – 133; Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 362.
Learned counsel for the Appellant referred to PW 1 – PW5 and said that the averment that Jagaba and his son Saidu were entrusted with the land in dispute did not find support in the evidence of the plaintiff’s witnesses and were seriously contradicted under cross-examination as all the witnesses said Jagaba had no son but had 4 daughters. That this crucial evidence must work against the Respondent. He cited Ayoola v. Yahaya (2005) 7 NWLR (pt. 923) 122 at 124.
In response, Mr. Sulaiman for the Respondent said it is trite law that in land cases, the onus of proof falls on the claimant who must succeed on the strength of his own case rather than any weakness in the case of his opponent. He referred to Section 137 Evidence Act; Onwuama v. Ezeokoli (2002) FWLR (pt. 100) 1213; Alize v. Umaru (2003) FWLR (pt. 121) 2009. -Mr. Sulaiman stated that the Respondent relied on traditional history where he told the court who first founded the land and by
ISSUE NO 2
On the second issue as to whether PW6 can be said to be witness for all intents and purposes and against the interest of the plaintiff, the Appellant said that PW6 was really the Defendant/Appellant called by sub poena by the plaintiff/Respondent and so the court cannot say the plaintiff called five witnesses and the Defendant three. That the court had failed to evaluate the evidence of PW5 and PW6. That the evidence of the Appellant during cross-examination as PW6 was in support of the defence which is good evidence against the interest of the Respondent. He cited Ayoola v. Yahaya (supra) Adeyeye v. Ajiboye (1987) 7 SCNJ 1 at 3.
The Appellant had contended that the Respondent as plaintiff had not pleaded appropriately the traditional root of title to qualify as pleading in a declaration of title based on traditional history.
In the Statement of claim the Plaintiff had averred inter alia:-
1. The Plaintiff is a principal member of the Musa Barwas family currently living at Kungu near Pyata village in Bosso Local Government while the defendant lives at Gbotu but an indigene of Lashin
2. The Plaintiff’s dispute with the defendant relates to a piece of land lying and situate at Zhin village belonging to the plaintiffs family inherited from their grand father by name Damidami.
3. Damidami, the plaintiff’s grand father, was a hunter and the first settler of Zhin village during which time he specifically acquired, possessed, controlled (sic) and used the land in dispute at his pleasure many years ago Damidam;, after his death was buried on the land in dispute.
4. The land in dispute was bounded in the East by one Maki Gwamna, to the North by Sarkin Samari. River Zhin bounded the land in dispute in the West while Jagaba Saidu is the boundary man by the South.
5. Many years ago, the plaintiff’s family moved from Zhin to settle at Kungu for economic and political advantage and left their land in trust of Jagaba (deceased) and later Saidu Jagaba on the understanding that the land will revert to the Plaintiff family whenever they ask for same. This happened about 50 years ago.
6. While the land was under the trusteeship of Jagaba and his son, Saidu, a part of the said land was leased to the defendant and other persons who came for farming purposes or other usages. Particularly the defendant was told that the land did (sic) not belong to Jagaba or his son Saidu
7. The Plaintiffs ownership, control or possession was never challenged by anybody except by the defendant who about 9 or so years ago challenged the plaintiff on the basis of his supposed ownership. This happened when the Plaintiffs land was given back to them by Saidu Jagaba after taking them round the said land.
This pleading above meets adequately the requirement in claims for declaration of title based on traditional history stated differently where title is derived by grant or inheritance, the traditional history or evidence of acts of continuous exclusive possession should be given to justify the grant.’ In such cases, the pleading should aver facts relating to:
(a) The founding of the land in dispute;
(b) The person who founded the land and exercised original acts of possession,
(c) The persons on whom the title in respect of the land had devolved since its first founding.
The above facts are necessary for determination of the issue in what communal capacity the land was being held. See Uwais JSC in Osafile v. Odi (1994) 2 NWLR (pt.325) 125 at 138; Alade v. Awo (1975) 4SC 215; Piaro v. Tenalo (1976) 12 SC31 at 41; Kalio v. Woluchem (1985) 1 NWLR (pt. 4) 572 at 628.
The pleading being properly settled as in order the next issue is the evidence in support.
Where a party relies on traditional history to prove ownership of land, he must give credible and consistent evidence which leaves no gap as to claim of succession. He must plead and prove the devolution of the land right from its original founder to himself (the party) without leaving any unexplained or unexplainable gaps in the line of succession. An insufficient averment and evidence as to the founding and devolution of the land in dispute will not found such a claim on traditional history.
Of Importance is the fact that the burden on a plaintiff to prove his title to land does not shift. Consequently, a plaintiff must succeed on the strength of his case for title and not on the weakness of the defence, and where a plaintiff fails to discharge the burden of proof on him, his case is liable to be dismissed. See Falomo v. Onakanmi (2005) 11 NWLR (pt. 935) 126 at 158 (Court of Appeal); uchendu v. Ogboni (1999) 5 NWLR (pt. 603) 337; Eze .v. Atasie (2000) 10 NWLR (pt. 676) 470; lawai v. Olufowobi (1996) 12 SCNJ376; Onwuama v. Ezeokoli (2002) 5 NWLR (pt. 760) 353 at 367 Kodilinye v. Odu (1935) 2 WACA336; Udegbev. Nwokafor (1963) 1 All NLR417; Odife v. Aniemeka (1992) 7 NWLR (pt. 251) 25; Okpuruwu v. Okpokam (1988) 4 NWLR (pt. 90) 554; Piaro v. Tenalo (1976) 12 SC 31; Motunwase v. Sorungba (1988) 5 NWLR (pt. 92) 90.
It is settled law that evidence of traditional history and tradition which is plausible and is not contradicted or in conflict and found by the court to be cogent can support a claim for declaration of title to land. See Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 362 at 386; Alade v. Awo (1975) 4 SC 215; Olujebu of Ijebu v. Osha, The Eleda of Eda 91972) 5 SC 143; Aikhionbare v. Omoregie (1976) 12 Sc 11.
The learned trial Judge had held:-
”It is trite that a certificate of occupancy is only evidence of a right that is already in existence so that where no right of occupancy exists the certificate of occupancy cannot serve as an efficacious means of establishing such non – existent right. Therefore it is my opinion that both Exhibit A and Exhibit B obtained by the defendant do not help their case.
From the evidence for the plaintiff as well as for the defendant, their claims for the disputed land seem to be through traditional evidence and by various acts of ownership. This method of establishing claim of land is among the five ways recognised by law. In the evidence for the plaintiff, five witnesses testified including those that borrowed the same land in dispute at various times from the plaintiff’s Family where the defendant now in possession three witnesses testified including himself on cross-examination.
The learned counsel to the defendant in his written address alleged contradiction in the evidence for the plaintiff especially the names, Usman Gwamma PW5 which appear in the plaintiffs pleading as Machi Gwamma and also the biological status of Saidu Jagba PW3 whose father is Makun not Jagaba. He also pointed out that PW3 said that plaintiffs father Musa whereas his biological father was Tijani as told by PW1 and PW4. All these could be regarded as contradictions. But the contradictions could not be said to be material because they do not relate to the primary facts in issue. In civil cases, even greater latitude is allowed in respect of such contradictions, particularly when the witnesses are illiterates or obviously, unsophisticated. In traditional evidence minor discrepancies are not uncommon but they go a long way in showing that such evidence was not in any consented with respect to the case in land; most of the witnesses are illiterates and, the rest unsophisticated. Therefore the discrepancies contained in the evidence for the plaintiff do not amount to material contradictions to render the evidence unreliable. Having said this and basing the case on preponderance of evidence and balance of probability, I agree with the evidence of the plaintiff more than that of the defendant”‘.
The findings of the learned trial Judge above captured cannot be faulted as indeed they are borne out of the records. It is in fact that the witnesses had given different names to certain persons related to the history of the land is of no significance in the circumstances operating here.
In the normal course of events, it is to be expected that witnesses may not always speak of the same facts or events with equal and regimented accuracy. This is particularly so in a situation which they speak from fairly faded memory in respect of a matter they consider from slightly different perspectives. Passage of time fades human memory on matters of detail and human observation tend to differ. Consequently, absence of any contradiction in the evidence of witnesses will be totally unnatural. However, such contradictions must not be material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses. See Akintan JSC in Ogun v. Akinyelu (2004) 18 NWLR (pt. 90S) 362 at 392; Nwokoro v. Onuma (1999) 12 NWLR (pt. 631) 342; Enahoro v. Queen (1965) NWLR265; Emiatorv. State (1975) 9 – 11 SC 112.
The learned counsel for the Appellant, Mr. Sallawu had made much of the testimony of the Appellant, called by Respondent as Plaintiff which he said damaged the case of the plaintiff now Respondent. That assertion is not supported by what transpired since the plaintiff only called the Defendant to testify as PW6 only to tender the certificate of occupancy and no more. It was the Appellants counsel who using that as spring board to cross -examine elaborately in the futile hope of scoring a point against the Plaintiff/Respondent and in so doing forgot to properly place the Appellant’s evidence properly in his defence that has missed a salient point. Since Respondent only called Appellant as PW6 for the sole purpose of tendering the certificate of occupancy that is all there is to the case of the Respondent and the cross-examination of Appellant’s counsel of Appellant and so it cannot be taken as conflict in the evidence of the Respondent.
On the matter of Appellant having the certificate of occupancy.
It is to be noted that the mere grant of a right of occupancy over land in respect of which there is already a right of occupancy, or an existing interest in favour of another person, does not amount to the revocation of the prior right of occupancy or existing interest. Per Mohammed JSC in C.S.S. Bookshops Ltd v. Registered Trustees of Muslim Community in Rivers State &. Ors (2006) 11 NWLR (pt. 992) 530 at 567; Ibrahim v. Mohammed (2003) 6 NWLR (pt. 817) 615; Olohunde v. Adeyoju (2000) 10 NWLR (pt. 676) 562; Nigerian Engineering Works Ltd v. Denap Limited (1997) 10 NWLR (pt. 525) 481; Ilona v. Idakwo (2003) 11 NWLR (pt. 830) 53.
Having considered the judgment of the trial court alongside the evidence on record available to him, there is no basis for taking a contrary view nor to agree with the Appellant that there was failure on trial court’s point to evaluate relevant evidence. This being an action for declaration of title to land and the onus being on the plaintiff Respondent to prove his title relying on the strength of his case and not on the weakness of the defendant’s which the Respondent properly carried out in this instance it is only right that his right to the title and the declaration he sought and which the trial Judge accorded him be sustained. I place reliance on the cases:
Alize v. Umaru (2002) 14 NWLR (pt. 787) 369; Aliyu v. Adewuyi (1996) 4 NWLR (pt. 442) 284; Ohiaeri v. Akabeze (1992) 2 NWLR (pt. 221) 1; Edosomudan v. Ogbe Fun (1996) 4 NWLR (pt. 442) 266; Baruwa v. Ogunsola (1938) 4 WACA 159.
On this last note I see no merit for this appeal, the reasons for that are stated above. This appeal is therefore dismissed and I affirm the decision and orders made in the trial High Court.
I award costs of N20,000 to the Respondent to be paid by the Appellant.
Other Citations: (2009)LCN/3090(CA)
