Ishola Olusegun Lawson V. Afani Continental Co. Nig. Ltd. & Anor. (2001)
LawGlobal-Hub Lead Judgment Report
ALAMI, J.C.A.
ISA AYO SALAMI, J.C.A. (Delivering the Leading Judgment): The plaintiff, in the High Court of Justice of Kaduna State, in the Kaduna Judicial Division, in his claim, which eventually went to trial in his amended statement of claim claimed for the following reliefs:
“(a) A declaration that the plaintiff is the person entitled to the rights in and over the piece of land, opposite Mahmud Jaffal Road, adjacent Grains Board House, along Express Bye-pass, Sabon Garin, Nassarawa Industrial Layout, Kaduna, measuring 60m x 60m with survey plan Number NO. 23963 and covered with Certificate of Occupancy No. CK/A/0001557.
(b) A declaration that the plaintiff is entitled to exclusive use and possession of the said plot against the defendants, their agents and privies and all other person or authority.
(c) An order that the defendant should deliver possession of the said land to the plaintiff, upon the execution of the contract with the Kaduna State Government.
(d) A declaration that the plaintiff is entitled to be paid and an order that the defendant shall pay to the plaintiff the sum of N2,000:00 per week for the use and occupation of the land, until it delivers up possession of same.
(e) A declaration that all contract(s) or agreement(s) entered with other person, persons or authority other than the plaintiff for the use and occupation of the land is null and void.”
Pleadings were filed and exchanged at the amended statement, of claim of the plaintiff, statement of defence of the first defendant and amended statement of defence of the second defendant. The amended statement of defence was subjoined with a counter claim wherein the second defendant sought a declaration of title amongst other reliefs.
The plaintiff testified in support of his claim and called another witness. The first defendant called one witness while the second defendant, though cross-examined the two plaintiff witnesses failed to call evidence in support of its defence and counter-claim. The learned trial Judge in a reserved and considered judgment struck out the second defendant’s counter-claim and dismissed the plaintiff’s claim in toto. The plaintiff being dissatisfied with the decision of the learned trial Judge has appealed to this court on 12 grounds of appeal, from which he formulated 4 issues for determination.
The plaintiff (hereinafter referred to as appellant) filed a brief of argument as far back as 24th October, 1997. The first defendant who is hereinafter, referred to as first respondent, however did not file his brief within time. The brief dated and filed on 28th April, 1998, was curiously enough not deemed as properly filed and served until 8th February, 2001. The second defendant (hereinafter referred to as second respondent) did not file its own brief, just as it failed to participate in the trial in the court below apart from putting in its statement of defence.
The four issues framed in the appellant’s brief are set out immediately hereunder:
“First Issue
Grounds 3 – 9, 11 & 12 as the plaintiff entitled to a declaration of title on the basis of his successful applications for grants of occupancy first from the Chikun Local Government 1989 and subsequently from the Kaduna State Government (1993), that is documents of title Exhibits 2 and 3 pleaded proved admitted and uncontested and the Kaduna State Government Surveyor General’s Survey Plan of the land as granted to the plaintiff by the Kaduna State Government-Exhibit 4.
SECOND ISSUE
(GROUND 1)
should the 2nd defendant counterclaim for declaration of title have been dismissed for failure to lead evidence in support of same?
THIRD ISSUE
(GROUND 2)
Was the plaintiff entitled to N2,000 per week for the 1st defendant’s use of the land in dispute?
FOURTH ISSUE (GROUND 10)
Was the 1st defendant’s witness DW1’s evidence-liable to be ignored for perjury?”
On the other hand, the first respondent’s brief contained the following issues as calling for determination in this appeal:
“1. Whether the appellant discharged the onus on him to prove with certainty the land he was laying claim to.
- What order should the court make, when faced with an abandoned counter-claim.
- Was there any agreement between the appellant and the first respondent for use and occupation of the land in dispute to entitle the appellant to an award of N2,000.00 weekly.
- Was the 1st defendant’s witness (DW1) evidence liable to be ignored for perjury.”
The appellant’s formulation of issues particularly issue 1, is too cumbersome. It rolled together into one issue several issues inspite of that, I will endeavour to plod on using the appellant formulations however, tedious it may be. The respondent’s issue 1 is too restrictive. It is restricted to the question of the identity of the land to the utter neglect of the issue of title to the land generally.
At the hearing of the appeal both learned Counsel on behalf of their clients adopted their respective briefs of argument. Mohammed Esq. merely adopted appellant’s brief prepared by Mr. Olagunju. He did not elucidate on the brief, while Mr. Aluko Daniel adopted respondent’s brief prepared by Jerome. He too, did not elucidate on the respondent’s brief.
It may be apt, at this stage, to succinctly state, the facts of the case. The appellant’s case is that he bought a parcel of land from one Danladi, who signed Exhibit 1 for him. He subsequently applied for and obtained a customary right of occupancy from Chikun Local Government. But subsequently discovered that the parcel of land, lies within an urban area and, therefore, not subject to a grant of customary right of occupancy from a local government. Hence, he was advised and applied to the Kaduna State Government and was granted a statutory right of occupancy. The two rights of occupancy are evidenced respectively by a certificate of occupancy and a statutory right of occupancy which were put in evidence and admitted as Exhibits 2 and 3. The first defendant, on its part is not claiming title to nor, any other interest in the land. Its own case was one D.D. Gowon, the proprietor of the second respondent and not the appellant put it in possession of the land, after satisfying itself that he was the owner of the land on inspection of documents of title shown to him.
I propose to bifurcate appellant issue 1 into:
(i) Whether the appellant proved his title to the land.
(ii) Whether the identity of the land was established.
On issue 1(1) it was submitted that the appellant:
“having successfully sought, obtained, pleaded and proved his customary and statutory grants of occupancy over the land in dispute (exhibits 2 and 3), and having supported the same with Government survey plan of the land in dispute under the hand of the Surveyor-General of the State in the absence of any proof to the contrary and on a balance of probabilities the plaintiff/appellant had attained the level of proof required to obtain a declaration of title in his favour over the land in dispute.” (Italics mine).
Learned Counsel for appellant supported his submission with various authorities both statutory and decided cases.
But the question is whether the appellant had, in the absence of any evidence to the contrary, on the balance of probability, attained the standard of proof demanded of him. It is trite that credible evidence which had not been controverted or challenged should be acted upon. Omoregbee v. Lawani (1981) 3-4 SC 108, 177.
It is equally trite that, although the defendant has not given evidence nevertheless it does not follow that every piece of evidence which cannot satisfy the standard of proof id est of preponderance of evidence in a civil suit has to be accepted by the court. See Oduola v. Coker (1981) 5 SC 197,230.The linch pin of the appellant’s case is documentary evidence comprising Exhibits 1, 2, 3, and 4. Exhibit 1 is the purchase agreement between the appellant and one Galadima. Exhibit 2 is the certificate of occupancy issued by the Chikun Local Government to the appellant, exhibit 3 is the statutory right of occupancy granted by the Kaduna State to the appellant in replacement of the customary right of occupancy irregularly or wrongly granted by Chikun Local Government on account that, the land in dispute lies within an urban area and not a rural area and Exhibit 4 is the survey plan of the land in dispute counter-signed by the Surveyor-General.
It is not clear which of the Surveyors General, in the country, counter-signed Exhibit 4. There is no rubber stamp impression, contrary to the practice in the public service in this country, placed against the signature of the alleged Surveyor- General, who counter-signed the plan. Furthermore on Exhibit 4, both first and second plaintiff witnesses create the impression that it was made at the instance of Department of Lands and Surveys Kaduna State Government for the purpose of the certificate of occupancy to be issued subsequent to statutory right of occupancy the appellant claimed had been granted to him on exhibit 3. In this connection the first plaintiff witness, who is incidentally the appellant, in the instant appeal, testified as follows:
“…when the State Government directed that people should go for conversion of their certificates of occupancy. Due to that order, I applied for the State’s certificate of occupancy. Then the letter of grant was given to me.
If I see the letter… After this instruction to survey was given by the office of the Surveyor General. After that the Surveyor carried out their final survey on the site. The survey plan has been printed out and the conversion is still in progress.” (Italics mine).
Second plaintiff witness Joshua Anyinso Garba stated as follows:
“I am a surveyor by profession, a civil servant with the Department of Lands and Surveys.
We carry out surveys on behalf of the State Government especially in the preparation of title deed plans for the preparation of certificate of occupancy.
I know the plaintiff in this case. I knew him when he was granted an offer of grant for the surveys of his piece of land along the Western-bye-pass that is Nassarawa New extension.
The survey was executed in April, 1994.” (italics mine)
But in an affidavit deposed to by the appellant on 10th day of October, 1994, it was averred at paragraph 5 thereof:
“That I contracted the services of a Surveyor who processed the survey plan. A copy of the Survey Plan Number NC 23903 is hereby annexed and marked Exhibit ‘C’.”
Clearly, this contradicts the evidence of the two plaintiffs’ witnesses that the plan was made by the Kaduna State Department of Lands and Surveys, Surveys Division. It follows that second plaintiff witness, Joshua Anyiso Garba, who described himself as Principal Surveyor Assistant III, under cross-examination by learned Counsel to first respondent, might after all not be a civil servant, contrary to his claim, in his evidence-in-chief. I am strengthened in this view because the man who surveyed the plan, Exhibit 4 pages 10 and 17 of the record is one I.A. Garuba. It seems to me that second plaintiff witness is a surborned one.
Exhibit 2 is the certificate of occupancy granted by Chikun Local Government. The certificate is invalid, because it purports to grant a customary right of occupancy in respect of a parcel of land, which is in an urban and not rural area. It is unlawful for a Local Government to grant a customary right of occupancy in respect of land in urban area. The appellant having conceded that the land in dispute is in an urban area, the grant to him becomes null and void. A local government can only lawfully, in respect of land not in urban area grant customary rights of occupancy to any person or organisation. See Section 6(1)(a) of the Land Use Act, Cap 202 of the Laws of Federation of Nigeria, 1990.Exhibit 1 put in evidence by the appellant alleged purchase of the land from one Danladi Galadima,, for a consideration of N35,000.00. It is doubtful, if there is a provision for sale or purchase of bare land under the Land Use Act, Cap. 202 of the Laws of the Federation of Nigeria, 1990. Section 1 thereof, vests all land comprised in the territory of each State in the Federation in the Governor of that State in trust and such land shall be administered to the use and benefit of all Nigerians in accordance with the provisions of the Act. It therefore, seems to me that under the provisions of the Act, there can be no monetary transaction in respect of land, on which there are no unexhausted development. There can only be payment of compensation to developments that have not been exhausted.
The document comprised in exhibit 1 is written in Hausa. It was produced in evidence and marked exhibit 1, without ever translating it into English, the language of the trial court and this Court. This Court and the court below could not take a full advantage of its contents. Before the courts could use it properly its translation ought to have been produced in evidence along with it or a witness could have been put in the witness-box to do the translation. The appellant opted for neither notwithstanding the order of the trial court that the same be translated into English. The translation, if any, was not put in evidence at the trial court. The use the trial court put Exhibit 1 to respectfully is improper because he has thereby combined his role as adjudicator with that of a translator who ordinarily ought to be called to testify in-chief, cross-examined and, if need be, re-examined. If the appellant left the document untranslated until he closed his case the only course left to the court is to discountenance it. By charting the course it did, it abandoned its toga of impartiality and descended into the arena on the side of the party, who produced the document that requires translation and did not translate it into the language of the court, English.
Exhibit 1 purports to transfer interest in land. It is for that reason, a registrable instrument by virtue of section 3(2) of the Land Registration Law, Cap 85 of the Laws of Kaduna State of Nigeria, 1991, “which requires all instruments including powers of attorney affecting land” to be registered. It provides that all document transferring or affecting interest in land is registrable and should be registered. A registrable instrument which is not registered cannot be pleaded and if pleaded, it is not receiveable in evidence, but where through inadvertence it is admitted it should be expunged. This proposition of law is encouraged by section 15 of the Land Registration Law Cap 85. It enacts as follows:
“15. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3.” (italics mine)
It is more than trite that if such documents were received in evidence the same should be expunged. See the case of Registered Trustee of MMHC v. Adeagbo (1992) 2 NWLR (Pt.226) 690 and Owoeye Eso & others v. George Okere Adeyemi & another (1994) 4 NWLR (Pt.340) 588. Wherein section 16 of the erstwhile Western Region Land Registration Law Cap 56 of the Laws of Western Region of Nigeria, 1959, was considered. Section 15 of the Land Registration Law Cap 85 as well as section 16 of the Land Registration Law Cap 56 are impari materia.
This takes me to the question of admissibility of statutory right of occupancy, Exhibit 3, the plan, Exhibit 4 and the customary certificate of occupancy issued by Chikun Local Government. The three documents qualify as acts of public officers, within the contemplation of section 109 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990. In the result only certified copies thereof are admissible and not original see Sidi Yero v. Union Bank of Nigeria (2000) 5 NWLR (pt.657) 470, 478 where the Court of Appeal said:
“The case of Okeke v. Attorney-General & Commissioner for Justice Anambra State (supra) cited in the appellant’s brief of argument seems to have been wrongly decided. In that case this court, at page 80, per Uwaifo, JCA (as he then was) held that a public document may be proved “by producing either the original or the secondary evidence of it”. A scanning of the provisions of sections 96 and 97 of the Evidence Act Cap 112 does not make original of a public document admissible. Original of such document are prohibited in evidence on good account. The decision is per incuriam as sections 96, 97(1)(e), (f),(2)(c) and 111 effectively excludes admissibility of primary evidence of a public document.
I am encouraged in this view by the case of Obadina Family & Executors of Chief J.A. Ajao v. Ambrose Family & others (1969) 1NMLR 25, 30 where Coker, JSC, said:-
“The combined effect of the subsection is that in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other. The document now marked Exhibit ‘2’ is not a certified copy but a Photostat copy and it is therefore, inadmissible as secondary evidence of a public document which it purports to be. There was no objection to its admissibility when it was produced but it is not within the competence of parties to a case to admit by consent or otherwise a document which, by law, is inadmissible. See Owoniyin v. Omotosho (2) Alashe v. Olon-Ilu (3) and also and Yassin v. Barclays Bank DC0(4).”
The point is more forcefully driven home and made explicit by the dictum of Uwais, JSC (as he then was) in Chief Philip Anatogu Others v. Igwe Iweka II (Eze Obasi) (1995) 8 NWLR Pt.415) 547, 572 per Uwais, JSC (as he then was) when he said:
“In my opinion, the documents could only be admitted in evidence if they satisfied the provisions of section 90 subsection (1) or section 111 of the Evidence Act quoted above. The latter section allows for the certified copies of the document to be produced, but even then, what were sought to be tendered in this case were original public document. Had the procedure under sections 110 and 111 been adhered to by the respondents, the certified copies of the document would have automatically become admitted in evidence by the trial Judge without PW1 giving evidence of them. In other words, the document would have been directly admissible without any foundation being laid- See Ogbunyiya v. Okudo (1979) 6-9 SC 32 at p. 43.”
Not only that I cannot improve on this words of infallibility contained in the dictum, I am bound by and follow it. The documents sought to be tendered in the present appeal, that is the letters dated 8th and 10th February, 1992, as well as the one dated 12th August, 1992, are not certified copies of the public documents and are inadmissible because they were either original or copies of the document they purport.”
The appellant in respect of the Chikun Local Government Certificate of Occupancy, Exhibit 2, the statutory right of occupancy Exhibit 3 and the plan counter-signed by the Surveyor General, Exhibit 4 sought and tendered original of those documents which were accordingly marked. The tendering in evidence of the original of those public documents is erroneous. They are accordingly expunged.
Exhibit 1 affects interest in land and had already been expunged for offending section 15 of the Kaduna State Land Registration Law Cap 85. It also offends section 6 subsection (4) of the Land Use Act Cap 202, which provides for payment of compensation for unexhausted improvement and not outright purchase as done by the appellant in respect of Exhibit 1. Subsection (4) of section 6 of the Land Use Act Cap 202 provides as follows:
“6(4) The Local Government shall have exclusive rights to the lands so occupied against all persons except the Governor.”
Exhibit 1 is contrary to the spirit of the Act Cap 202 and cannot stand. The Act has provided for a procedure for acquiring land under it and any acquisition which is not in accordance with the spirit of the enactment will not be protected by the Act. The court will not allow departure from the prescribed procedure. See generally Pasmore v. Oswaldtwistle Urban District Council (1898) A.C. 386, 394.
Where a matter has been improperly received in evidence in the court below, even when no objection had been raised, it is the duty of the Court of Appeal to reject it and decide the case on legal evidence Jacker v. International Cable Co. Ltd. (1888) 5 T.L.R. 13. The evidence which have been expunged or rejected are not admissible and are liable to rejection even though they were admitted without objection by the learned Counsel for respondent. They are not evidence admissible subject to fulfilment of certain conditions. Kossen Nig. Ltd. v. Savannah Bank (1995) 9 NWLR (Pt.420) 439, Balm v. Akintoye (1986) 3 NWLR (Pt.26) 97 and Alade v. Olukade (1976) 1 All NLR (Pt.1) 67, 73 – 74. In the circumstance, it is clear that the basis of the appellant’s claim is not credible.
The appellant’s case is founded on inadmissible evidence and if there is a declaration of title in his favour it will result in a miscarriage of Justice. The appellant sought to obtain the declaration of title on the strength of the documents and if the same are inadmissible his claim should fail.
There is no substance in the appellant’s contention based on the principle enunciated in the cases of Olale v. Ekwelendu (1989) 4 NWLR (Pt.115) 326, (1989) 7 SCNJ 181, 195 – 197 Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, 738, to the effect that he could succeed on minimal of evidence where there is no worthwhile challenge or defence. The above principle contrary to the contention of the learned Counsel for appellant, in the appellant’s brief is not on all fours with the present case. The two cases are different, different in the sense that all the necessary parties are not in court. The only claim that may be properly brought or urged against the first respondent is either for recovery of possession or damages for trespass coupled with an injunction.
And when it was challenged, it told the appellant that it wanted a temporary use of the property for the purpose of execution of a contract and that one Chief D.D. Gowon had challenged it and on sighting of documents which it considered genuine it reached accord with him.
It was equally prepared to enter accord with the appellant if he had turned up first. Its only witness and managing director in his unchallenged and uncontroverted evidence reiterated that Chief Gowon confronted him with evidence of title and eventually Gowon agreed to the temporary use of the piece of land. The witness tendered the letter dropped by Gowon and was marked Exhibit 5. But before Exhibit 5 was delivered to the appellant they were goaded on by some chiefs who told them that the land was bona vacantia. In this connection the witness testified thus:
“It became obvious that we had to look for temporary site along one of the roads. I contacted a number of people Sarkin Nassarawa, Sarkin Kudenda and the District head of Gwagwa in Kaduna South. They all asked me to use this piece of land in dispute as it was owned by nobody, but by Chikun Local Government Council.”
Thereafter, Chikun Local Government invited the first respondent’s managing director to discuss a claim to the land by another person. The letter requesting the first respondent to the Local Government, dated 10/10/94, was admitted in evidence and marked Exhibit 6 which is recited immediately hereunder:
“TRESPASSING OVER PLOT NO. KK. 4 & 6
I am directed to write and inform you of a petition received from one Mr. Olumide Adeniyi Adeleke on your trespass over the above named plot and request to meet the Head of Works Department in his office on Tuesday the 11/10/94 by 10.00a.m., for discussion.
You are requested to bring along with you all your documents in respect of the plot in question. Do endeavour to attend the meeting unfailingly please.” (Italics mine)
The appellant was aware of the existence of both Exhibits 5 and 6, but he chose to neglect them when he commenced his action. He joined neither as a co-defendant. It was the first defendant who sought and obtained leave to join Chief D.D. Gowon as second defendant and when the present second respondent sought that it be substituted for Gowon appellant failed to appeal the same decision. In my respectful opinion, all the necessary parties to the suit are not before the court to allow for the issue in controversy to be effectively and finally determined. See Anya v. Iyeayi (1988) 3 NWLR (Pt.82) 359. The reason which makes it necessary for making a person a party to a suit is to be bound by the result of the action and the issue to be settled therefore, should be one which cannot be effectively and completely determined unless he is a party. See Uku v. Okumagba & others (1974) 3 SC 35 and Oriare v. Government of W.N. (1971) 1 All NLR 138.
Olumide Adeniyi Adeleke and Chief D.D. Gowon are necessary party, who should have been made parties to the action for complete and effective settlement of all the issue in controversy in the suit. The case is that of the appellant and not that of first respondent nor the court’s. The appellant has the responsibility of bringing all the necessary parties to the court especially so when his claim that went to trial eventually as per his amended statement of claim included a declaration of title but this claim cannot be sustained against a confessed trespasser, such as first respondent.
I am strengthened in this view, by the second respondent’s amended statement of defence wherein it counter-claimed that it bought the land along with the Grains Board House which the plaintiff witness admitted is adjacent to the land in dispute. It is not impossible the second respondent abandoned its defence as well as counter-claim on grounds of its inability to pull through the negotiation to purchase the Grains House or for some other technical hitches. There is nothing on record, however that Adeleke is aware of the on-going legal tussle mutatis mutandi for the Grains Board. So they cannot be guilty or accused of standing by and therefore, cannot be bound by the outcome of the present contest or suit. A claim of land admitted to belong to other persons not a party to the suit will fail except such persons are made a party Darko v. Agyakwa 9 WACA 163, 166.
In my view the appellant must find and make his claim against a party who claims title to the land and not against a confessed trespasser. On the identity of the land, the learned counsel predicated his submission on the case of Olale v. Ekwelendu (supra) at 195 – 196. The principle governing identity of land in an action for a declaration of title is that the identity of the land in dispute must be ascertainable with certainty. And the litmus test all the time is that a surveyor armed with the proceedings must be able to identify or produce the plan of the land in dispute; Kwadzo v. Adjei 10 WACA 274. I agree that the identity of land is proved by a properly drawn survey plan. But it has already been shown that the plan was counter-signed by an alleged Surveyor-General who failed to disclose his own identity by stating whose Surveyor General he is or was; each State of the Federation and the Federal have a Surveyor-General of their own. There was not rubber stamp of the Surveyor-General placed on it. A surveyor plan which is not counter-signed by a Surveyor-General is inadmissible no matter how well and properly drawn. See Atolegbee v. Shorun (1985) 1 NWLR (Part 2) 360.
Furthermore, one I.A. Gimba, was shown as the person who surveyed the land in dispute but second defence witness through whom it was tendered equally claimed that he did the survey. His name is J.A. Garba. He gave the short reference number as “Kaduna Street 1 No.” I believe the word ‘Street’ is a typographical error, which should read sheet. But on the plan itself, exhibit 4 the short reference number is given as “sheet 100”. The appellant’s witness did not reconcile these differences in his evidence.
There is nothing on Exhibit 4, the plan, the certificate of occupancy Exhibit 2 and the sale agreement, exhibit 1 tying the land in dispute to the various documents, I have just enumerated. All the documents succeeded in showing is that the land is situate somewhere in Chikun Local Government. The Schedule to the Chikun Local Government Certificate of occupancy does not describe the land it relates to other than stating it is at Sabon Garin Nassarawa Gwagwada District measuring 60m x 60m. The agreement between the appellant and Danladi Galadima equally merely stated 200′ x 200′. I agree 200′ x 200′ on conversion is 60.06 x 60.06, roughly about the same area as 60m x 60m stated in Exhibit 2.
The measurements given in each of Exhibits 1 and 2 create the impression that the land is a square contrary to what is shown on Exhibit 4 which, in any case, is not a square. The dimensions in Exhibit 4 are 60.32m x 60:42m x 60.50m and 51.23m. I cannot say that this is a properly drawn plan or description which sufficiently proves the identity of the land in dispute with ascertainable certainty. The plan, Exhibit 4; the sale agreement, Exhibit 1 as well as Exhibit 2 the certificate of occupancy can fit any land of the dimensions set out in the respective documents situate in Nassarawa of Chihun Local Government.
I agree that a plan is not a sine qua non, an absolute necessity in every case if all the parties and the court knew precisely what piece of land was being talked about. See Etiko v. Aroyewun 4 FSC 129; (1959) SCNLR 308; Araba v. Asanlu (1980) 6 SC 78, Garba v. Akacha (1966) NMLR 62, 63, Kilani Banjo & Others v. Aiyekoto & others (1973) 1 All NLR 210, 211 and B.F.N. v. Ibrahim, (supra) 359, which is cited in the appellant’s brief.
I have examined the pleadings particularly that of the appellant and there is no averment describing the location of the land. The appellant relied solely on the plan.
The description of the land as adjacent to grains board and opposite Mahmud Jaffal-Road Nassarawa Bye-Pass now known as Nnamdi Azikiwe Way by the appellant is vague. I do not understand how a plot could be said to be opposite a road or street. Does it mean that Mahmud Jaffal Road terminates at or forms a T junction in front of the house? But the plan, Exhibit 4 depicts the plot as lying along Mahmud Jaffal Road. The sale agreement says the plot is situate along Bye Pass Nassarawa New Extension Kaduna South. Exhibit 2, the certificate of occupancy described the land allocated to the appellant as Sabon Garin Nassarawa Gwagwada District Chikun Local government. It is therefore, doubtful, if on the pleadings and evidence the parties and the court knew the plot being talked about. Neither can a surveyor armed with the record of proceeding produce a plan of the land in dispute. In my respectful view, there is no proper description of the land on the record of appeal to which a declaration of title could be properly attached.
Finally, on this issue learned Counsel for appellant argued in the appellants brief that appellant did not in addition to proving his title documents, have to prove the title of his predecessor in title an act of ownership when, as cited by the learned trial Judge himself, all that was needed to prove title to land was only one of the listed methods in Idundun v. Okumagba. Learned Counsel further submitted that the documents obtained pursuant to sections 5(1)(a) and 6(1)(a) of the Land Use Act was sufficient to establish his ownership of the land in dispute. He contended that the evidence of the appellant that Danladi Galadima was the original owner of the land was never shaken. The learned Counsel for first respondent argued that inspite of the admission of Exhibit 6, which is adverse to the appellant’s interest appellant did not deem it fit to call Galadima his predecessor in title.
I agree with the learned Counsel for first respondent that, apart from processing purported documents of title appellant failed to adduce evidence showing that he had actual possession of the land nor did he prove his title to the land. The transfer or handing over of the land purchased must be in the presence of witnesses: Ajadi v. Olanrewaju (1961) All NLR 382, Erinosho v. Owokoniran (1965) NMLR 479 and Taiwo v. Ogunsanya (1967) NMLR 375.
The appellant, in the instant appeal failed to adduce evidence of transfer or handing over to him. The appellant testified that he cleared the land and was at the verge of commencing development on the land when he was required to apply for a statutory right of occupancy, which he successfully did, leading to grant of Exhibit 3. This is probably the only act of ownership the appellant allegedly performed. But the same act of ownership was not pleaded in the amended statement of claim and therefore, went to no issue. The learned trial Judge consequently rightly in my view discountenanced it.
Whether or not there was admission of Exhibit 6 showing that some other persons other than Danladi Galadima, the appellant’s predecessor-in-title owns the land, a mere production of the documents does not ground appellant’s title. The appellant would not be entitled to a customary right of occupancy on the land in dispute unless and until the existing customary right or interest on the land is revoked. See section 6(3) of the Land Use Act Cap 202 of the Laws of Federation of Nigeria, 1990, which states that a customary right of occupancy cannot be granted unless the existing right or interest on the land had been extinguished. There can only be a valid grant of customary right of occupancy after existing customary right has been extinguished either by the local government acquiring the land and paying of the holder or occupier his compensation or the grantee settling amicably with occupier or holder before applying for a customary right of occupancy. There is no evidence of revocation and payment of the compensation by the local government. Neither is the purchase price paid to Danladi Galadima been shown to be compensation for unexhausted development and had been paid to the occupier or holder as the case may be.
The appellant, the plaintiff herein, must show how the party through whom he is claiming divested the person through whom that person acquired title and title came to be vested in him. See Aderemi v. Adedire (1966) NMLR 398, Babatayo Oni v. Emmanuel Olokun & Another (1995) 1 NWLR (Pt.370) 189, 198 -199; Odofin v. Ayoola (1984) 11 SC 72, 116, Rev. Ogungbemi v. Gabriel Asamu (1986) 3 NWLR (Pt.27) 161 and Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393, 413.
It seems to me that the appellant is not relieved of the burden to call Danladi Galadima as a witness notwithstanding the latter’s alleged inheritance of the land from his father. He has a duty to adduce evidence on how he came by the inheritance. I have support for this proposition of law from the case Bamgbose v. Oshoko (1988) 2 NWLR (Pt.78) 509 where Supreme Court of Nigeria per Craig, JSC, of the blessed memory opined thus:
“In this case, the plaintiff pleaded in his statement of claim that Oloyede inherited the land in dispute from his grandfather, Ayikondu and one would expect him to call evidence to show clearly how the land descended under customary law from grandfather to grandson. In this respect, one would want to know whether Isaac Oloyede inherited the land directly from his grandfather or through his father. If through his father, then there should be evidence as to how many children Isaac’s father had and how this particular land came to be inherited by him. The plaintiff did not furnish this important fact… This is not sufficient especially when the plaintiff’s root of title had been attacked by the other party.”
There is total absence of facts about the founding of the land the person who founded and exercised original right of ownership on it and the person on whom title has devolved in respect of the land since the founding before the appellant acquired it. If the genealogy is not pleaded and established by credible evidence in accordance with the principle laid down in a long line of cases beginning with Kojo v. Bonsie (1957) 1 WLR 1223, 1226 -7. See also Akpakpuna v. Nzeka II (1983) 7 SC 1, 22 and 68; (1983) 2 SCNLR 1; Eboha v. Anakwenze (1967) NMLR 140, 142 – 143; ldundun v. Okumagba (1976) 9-10 SC 227, 235, (1976) 1 NMLR 200, 205.
The appellant was the plaintiff who should succeed on the strength of his own case and not on the weakness of the defence. But it is manifest that a plaintiff can derive strength from evidence volunteered by the defendant which is admissible-Akinola & Another v. F. Olowu & others (1962) 1 All NLR 224, 225, Martin v. Stratchan-C1744) 5 Term Rep 107, 110, Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 and Ibeziako v. Nwagbogu & others (1973) 1 All NLR 113, 114.
The appellant failed to establish his case by credible evidence contrary to his argument, when he argued issue 1. The answer to issue 1 is therefore negative and therefore all the grounds of appeal from which it is derived, id eat grounds 3 – 9, 11 and 12 fail and are hereby dismissed.
On appellant’s issue 2, it is submitted, on the authority of Obawole v. Williams (1996) 10 NWLR (Pt.477) 146 SC, (1996) 12 SCNJ 415, 438, that in the absence of any evidence in support of second respondent’s counter-claim for declaration of title, the learned trial Judge ought to have dismissed the said counter-claim. There is no substance in this submission. The surrounding circumstance of the instant appeal is different from those in Obawale v. Williams case. In the case cited, the counter-claimants though did not testify, sought to rely on the admission made by the plaintiff of the existence of their title in the statement of claim to establish their counterclaim. But in the instant case, the counter claim was merely filed and was not seriously pursued. Where a counter-claim is filed but not followed, the court shall deem the same as abandoned and strike it out. See Oseyomon v. Ojo (1977) 7 SCNJ 365,381 – 382.
In any case, the appellant’s learned Counsel while addressing the court urged upon it to strike out the counter-claim on the authority of Brick v. African Continental Bank (1992) 3 SCNJ, 41. The learned trial Judge acceded to the appellant’s request in the course of delivering his judgment. Can the appellant now turn round to complain that the learned trial Judge should not have struck out the case but ought to have dismissed the counterclaim? I do not think so because the order striking out the counter-claim was made at the instance and in appellant’s favour. He can, therefore, not be aggrieved.
The second respondent whose counter-claim was struck out rightly or otherwise, is the aggrieved party who could appeal against the decision but he has elected to accept the verdict. I therefore, agree with the submission of the learned Counsel for first respondent that the appellant is not entitled to approbate and reprobate. I therefore, answer this issue in the negative. I dismiss ground 1 of the grounds of appeal from which it is distilled.
On the appellant’s issue 3, which deals with entitlement of the appellant to N2000.00 per week for the first respondent’s use of the land in dispute, learned Counsel for appellant contended that appellant was entitled to the agreed rent on the ground that first respondent did not contest the averment contained in paragraph 11b of the amended statement of claim. In this regard, the learned Counsel for respondent contended that the same averment was denied in paragraphs 7 and 9 of the first respondent’s amended statement of defence.
I do not think, in the circumstance of this case, that the case of B.F.N. Limited v. Ibrahim (1987) 4 NWLR (Pt.63) 350L 359 cited in the appellant’s brief has application. The appellant, in this connection pleaded as follows in paragraph 11b of his amended statement of claim:
“11(b) Further to the facts in paragraph 10 above, and upon establishing our claim to the subject land, the 1st defendant agreed to pay rentals of N2,000.00 per week to the plaintiff. The agreement dated 17th October, 1994, shall be relied upon and same is hereby pleaded.”
(Italics mine)
The first respondent joined issue with the appellant on the appellant’s claim for N2000.00 weekly rent, in respect of the land in dispute in its paragraphs 7 and 11 of the statement of defence. The two paragraphs read as follows:
“7. In further reply to the said paragraphs 11 and 12, the defendant further avers that it was diligent in coming onto the said land and duly obtained the necessary permission and consent of the said chief, who produced documents of title and with whom agreement was entered into for the use of the said land.
- The defendant denies that it is liable to the plaintiff in any way whatsoever, and howsoever, since it entered onto the said land honestly and with requisite consent of the first person who claimed ownership and showed proof thereof by documents.”
There is consequently burden of proof on the appellant to show on preponderance of evidence that the first respondent is liable to him for a weekly rent of N2000.00 in respect of the land in dispute. There is no basis for appellant’s contention that the first respondent did not resist the claim in view of the foregoing and there is nothing in the averments contained in the first defendant’s statement of defence suggestive of admission on the part of first respondent. I agree with the general proposition by the learned Counsel for first respondent that averments in a pleading do not constitute evidence or proof. There is need to prove averments contained in a pleading by evidence unless otherwise admitted: Idesoh v. Ordia (1997) 2 SCNJ 175, 183; (1997) 3 NWLR (Pt.491) 17; Odebunmi v. Abdullahi (1997) 2 NWLR (Pt.489) 526, (1997) 2 SCNJ 112, 126, cited in the appellant’s brief as well as Nzeribe v. Dave Engineering Co. (1994) 8 NWLR (Pt.361) 124. And where no evidence is produced in support of pleadings the facts are deemed abandoned: Balogun v. Amubikahun (1989) 3 NWLR (pt.107) 18 SC.
The only evidence produced in respect of this head of claim is:
“That anytime the defendant finishes his contract with Government, he should vacate this place for me to use. I want this Hon. Court to order that the sum of N2,000.00, be paid to me per week, until they vacate the said land. That this Hon. Court should declare invalid any agreement made between the defendant and anybody.”
The portion of the proceedings set out above smacks more of prayers to the court than evidence. The appellant failed to lead evidence on the basis of the claim of weekly rents. The witness failed or neglected or refuse prodiguously to breathe a word of the agreement between him and first respondent for use and occupation of the land in dispute. Neither the agreement of 17th October, 1994, touted in the amended statement of claim nor a secondary evidence thereof was produced in evidence at the trial. It seems to me that this is an appropriate instance when the provision of section 149(d) of the Evidence Act can be invoked in addition to the deeming the claim as abandoned for failure to adduce evidence in support of his pleadings. See Amunbikahun’s case (supra) and Imana v. Robinson (1979) 3 – 4 SC 1, 9 where Supreme Court said:
“It is clear to us that once pleadings have been settled, and issue joined, the duty of the court is to proceed to trial of the issue and if one party fails or refuses to submit the issue, he has raised in his pleading for trial by giving or calling evidence in support, the trial Judge must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party.”
Section 149(d) of the Evidence Act, Cap. 112, of the Laws of the Federation of Nigeria, 1990, provides as follows:
“149. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular, the court may presume –
(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who with-holds it.”
I unhesitatingly, presume that the alleged agreement of 17th October, 1994, will be against the appellant who withheld it if it is produced. The defaulting party in this issue is the appellant accordingly appellant’s issue 3 is resolved against him. Ground 2 of the grounds of appeal fail and is hereby dismissed.
In arguing issue 4, learned Counsel for appellant referred to the evidence of 1st defence witness, denying knowing appellant and his admission under cross-examination that he had been confronted by the appellant over the land in dispute and contended that the 1st defence perjured and, therefore, his evidence should not have been given any weight.
The learned Counsel for 1st respondent took objection to ground 10 of the grounds of appeal, from which issue 4 derives. Learned Counsel argued that perjury was not in issue before the trial court and no finding was made on it and therefore, ground 10, which raises a fresh issue for the first time without leave, is incompetent. He relied on Ikeanyi v. A.C.B. (1997) 2 NWLR (Pt.489) 508, (1997) 2 SCNJ 93, 110. There is no appellant’s reply brief. It follows that they proffered no answer to the objection.
There is substance in this objection. Ground 10 of the grounds of appeal is incompetent because it is not directed at a ratio decedendi of the judgment of the trial court. A competent ground of appeal must relate to the decision and be a challenge to the validity of a ratio decedendi in the judgment. See Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590, Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387, 408.
The ground raising an issue for the first time on appeal, for it to be competent, leave of this court must be sought and obtained. Merely asking for leave to file and argue additional grounds of appeal does not satisfy this condition precedent. See Akpene v. Barclays Bank of Nigeria Ltd & Another (1977) 1 SC 49, 50, Shonekan v. Smith (1964) I All NLR 168, 173 and Obioha v. Duru (1994) 8 NWLR (Pt.365) 631, (1994) 10 SCNJ 48, 64 and Oshatoba v. Olujitan (2000) 5 NWLR (Pt.655) 159.
The ground not relating and not being a challenge to a ratio decedendi of the trial court and no leave of this court being first sought and obtained is incompetent and is for that reason struck out.
I agree with learned Counsel for the respondent, if I must answer this objection, that it is not all contradiction that result in disbelieving or not acting on the testimony of a witness. The present contradiction is not material to the determination of the suit. The claim of the appellant does not depend on whether the managing director of 1st respondent knows him or not. Before a piece of evidence can be discountenanced for contradiction it must be material to the determination of the issue. Assuming the nature of contradiction is such that it will affect the credit of the witness, I think it would be limited to the issue of the managing director’s knowledge of the appellant. It should not necessitate wiping out of the whole testimony of a witness, since a court can believe the evidence of a witness in part and disbelieve or reject the other part. Abimbola Sanyaolu v. The State (1976) 5 SC 37, 44 and Aremu v. Board of Customs & Excise (1965) NMLR 258. The evidence of 1st defence witness could not be ignored or discountenanced for perjury.
I answer the question in the negative, ground 10 of the grounds of appeal from which it is framed fails and it is dismissed. All the grounds of appeal having failed, the appeal also fails and is dismissed with costs, which I assessed at N5,000.00 against the appellant.
Other Citations: (2001)LCN/1030(CA)
