James Mtom Pever V. Woii Bernard Adaa (1998)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

In suit No. GHC/37/93 filed on 12/5/93 before the Benue State High Court sitting at Gboko, the respondent who then was the plaintiff sued the appellant as 1st defendant and the Gboko Local Government Council as the 2nd defendant. The claim against the latter was discontinued in the course of the trial. The parties filed and exchanged pleadings which were subsequently amended with the leave of the court below. In the amended statement of claim, the plaintiff in paragraph 19 thereof sought reliefs as hereunder set out:

“19 Whereof the plaintiff claims against the defendant as follows:

(a) A declaration of title to plot No 1883 Gboko South which the defendant calls plot No 2489 Gboko South.

(b) An order declaring the defendant a trespasser on the plaintiff’s plot No 1883 Gboko South.

(c) An order ejecting the defendant from the plaintiff’s plot No. 1883 Gboko South.

(d) An order of perpetual injunction restraining the defendant, his agents, or privies, assigns, servants or whosoever claiming from or through him from further trespassing upon the plaintiff’s plot no. 1883 Gboko South or from dealing with the said plot in any manner adverse to the right and interest of the plaintiff.

(e) Special Damages

(i) Cost of the two thatched buts demolished by the defendant N8,000.00

(ii) Cost of well filled up with sand by defendant 4,000.00

(iii) Value of the two mango trees vandalised by the defendant 8,000.00

General damages N200 000.00

Total N220,000.00”

At the trial the plaintiff gave evidence and called four other witnesses to testify in support of his case. The defendant also gave evidence with a lone witness.

The subject matter in dispute between the parties is a piece of land in Gboko South which the parties refer to respectively as plot 1883 and plot 2489. The plaintiff is a soldier in the Nigerian Army. His case is that in the year 1974 he applied for a plot of land for residential purposes to the Gboko Local Government Council and was granted plot NO.1883. He was thereafter taken to the site of the plot by a stall of the Gboko Local Government Council (Council for short) and was shown its location and extent which measures 100 ft by 50 ft. He was later issued a Certificate of Occupancy (C of O) for short dated 30/10/74 Exhibit ‘A’ by the Local Government Council. Plaintiff claimed that he went into possession of the land, erected two round huts, sank a deep well and planted economic trees on me land. He has paid ground rents from 1974 to 1983 as evidenced by receipts (Exhibit B) issued to him by Gboko Local Government Council. After erecting the two round huts, the plaintiff put into occupation several persons including his famer’s wife Mrs Mary Adda (P.W.1). In February, 1993 the defendant trespassed on the said plot, No 1883, demolished me two round huts, filled me deep well and uprooted the economic trees on the plot and commenced the erection of a three roomed house. The plaintiff protested and caused his solicitor to write a letter dated 8/3/93 Exh C to the defendant. He also reported the matter to the police and also to the council. The latter on investigation discovered that it was misled by the defendant to grant him the defendant plot No 2489 Gboko South. Consequently, the council, by letter dated 18/5/93 Exhibit E revoked the defendant’s C of O Exhibit ‘G’. Despite the plaintiff’s protest and the action of the council the defendant adamantly continued and completed a three-roomed house on the disputed plot.

The defendant was a councillor with Gboko Local Government Council at the material time. His case was that in 1992, he applied to the council for a piece of land for residential purposes. The council through its staff scouted for an available plot and following a report that the land in dispute was available, it was allocated to the defendant as plot No 2489. The council subsequently issued to the defendant a Certificate of Occupancy dated 7/12/92 (Exh. G) in respect of Plot No. 2489. The defendant denied the existence of two round huts, a deep well and economic trees on the disputed land as claimed by the plaintiff. It is the defendant’s case that in 1992, he entered the plot allocated to him for the purpose of erecting a three-roomed bungalow without protest and that he duly paid ground rents to me council and was issued receipts Exh. H for the years 1992 – 1994. He gave account of an earlier protest over the land by one Samuel Aule who claimed the plot to be his. The council investigated the protest and having found it baseless asked him to continue with his development on the plot. It was after he had completed the development that he received the plaintiff’s complaint. At a meeting convened by the Council to look into the complaint it was found that plaintiff’s plot No 1883 was different from defendant’s plot No. 2489. Finally, the defendant stated that he had completed his house before he received the Council’s letter (Exh. E) Purporting to revoke his Certificate of Occupancy Exh. ‘G’.

After the trial, the learned trial Judge Hwamde, J. reviewed the evidence of the witnesses and the submissions of counsel and in a reserved judgment delivered on 10/4/95 found in favour of me plaintiff. In so doing, he reasoned in the ante penultimate paragraph of page 75 of the record, thus:

“I am satisfied that as plot 1883 was allocated to plaintiff much earlier before same plot metamorphosised in another number and was allocated to the defendant, the later allocation to the defendant was an exercise in futility. Title in plot 1883 was in the plaintiff at the time it was purportedly allocated to the defendant. Here the legal maxim of nemo dar quo (sic) non habet applies.”

The court then made a declaration of title of plot 1883 in favour of the plaintiff, ordered the defendant to vacate the land and awarded to me plaintiff the sum of N6,000 as general damages against the defendant.

Dissatisfied by the judgment, the defendant/appellant has brought the instant appeal before us. He filed nine grounds of appeal erroneously numbered 1 to 10. Parties by their respective counsel filed and exchanged briefs of argument which they adopted and relied upon in arguing the appeal on 19/11/97. In the appellant’s brief of argument, the following six issues were set down for determination:

“3.02 Whether the learned trial Judge was right to hold that the respondent has discharged the burden of proof laid on him in this action when the respondent failed to prove his root of title having regard to the pleadings and evidence before the court.

3.03 Whether the learned trial Judge was right in awarding title of plot No. 1883 Gboko South to the respondent when the identity of the said plot was not proved, but in doubt since no plan was attached nor oral evidence adduced describing the boundaries with definitive certainly.

3.04 Whether the learned Judge was right in finding in favour of the respondent on the question of the acts of ownership and possession.

3.05 Whether the learned trial Judge was right in admitting Exhibits ‘E’ and ‘D’ in evidence.

3.06 Whether there was proper basis for an award of N6,000 as damages to the respondent.

3.06 Whether the decision/judgment of the lower court can be supported having regard to the weight of evidence.”

The respondent on the other hand identified three issues as arising for determination from the appellant’s grounds of appeal. The three issues as formulated in the respondent’s brief read as follows:

“1. Whether the plaintiff/respondent proved his claims to be entitled to judgment. Grounds 1, 2, 3, 4, and 10 of the appellant’s grounds of appeal are covered by this issue.

2. Whether the judgment of the trial court would have been otherwise had Exhibits ‘E’ and ‘D’ been rejected – Grounds 6 and 7 of the grounds of appeal.
3. Whether the award of general damages is arbitrary? Grounds 8 and 9 of the grounds of appeal.”

Although learned counsel for the respondent formulated the above three issues, he made submissions in line with the issues as formulated in the appellant’s brief as earlier set out above.

In respect of appellant’s issue No. 3.02, it was submitted in the appellant’s brief of argument that the respondent failed to discharge the burden of proof on him as he did not prove the root of title he pleaded. Reference was made to the case of Owoade & Ors v. Omitola & ors. (1988) 2 NWLR (Pt.77) 413. It was contended that the only proper order the court below ought to have made was one dismissing the respondent’s action on the authority of Elias v. Disu (1962) 1 All NLR 214; (1962) 1 S.C. NLR 361. In reply counsel for the respondent argued in his brief that the respondent proved his case as required by law in that he pleaded and testified that on 30/10/74, the Gboko Local Government Council issued to him a Certificate of Occupancy No. 1883 in respect of the land in dispute and that he went into possession by building thereon two thatched huts, sinking a well and planting economic trees on the land. The respondent it was contended further led evidence to show that the appellant trespassed on the land by destroying the features on his plot. It was therefore submitted that the learned trial Judge was justified in entering judgment for the respondent.

In regard to issue 3.03 of the appellant’s brief, counsel for the appellant contended in his brief that the respondent did not prove the identity of the land he was claiming in that, he neither pleaded nor gave evidence descriptive of the features, dimensions or boundaries of the pareel of the land he was claiming. It was pointed out that no sketch map or survey plan of the respondent’s plot in dispute was tendered in evidence at the hearing of the case. It was stressed that although the respondent and his witnesses testified that there were round huts, a well, two mango trees, a tree called ‘Konkua’ in Tiv, the appellant and his lone witness denied the existence of those features on the plot in dispute. It was then submitted that before a court can grant a declaration of title and injunction to a party in a claim of land, the area of land in question to which it relates must be ascertained with certainty and precision. In support of these contentions, counsel cited the following cases; Baruwa v. Ogunsola (1938) WACA 159; Jemiegbe Ifie & ors v. Gedi & ors. (1965) NMLR 457; Nwogo v. Njoku (1990) 3 NWLR (Pt.140) 570; Titilayo v. Olupo (1991) 7 NWLR (Pt. 205) 519 and Okosun Epi & Anor v. Johnny Aigbedion (1972) 10 S.C. 53. In reply, counsel for respondent submitted that the identity of the disputed plot was not in doubt between the parties and therefore the respondent was relieved of the burden or proving the identity of the disputed plot. He relied on the cases of Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192.

In dealing with appellant’s issue No. 3.04 learned counsel for the appellant argued that none of the acts of possession claimed to have been exercised by the respondent was established. It was contended that since those acts of possession allegedly exercised by the respondent were vigorously denied by the appellant, the learned trial Judge ought to have undertaken a visit to the locus in quo to resolve the conflicting assertions of the parties. Counsel alluded to the cases of Nwankpu v. Ewulu (1995) 7 SCNJ 197 at 221; (1995) 7 NWLR (Pt.407) 269; Buraimoh Oloriode & ors. v. Simeon Oyebi & ors. (1984) 1 SCNLR 390; (1984) 5 S.C. 1 at 17 – 18. Counsel further stressed that as to the conflicting assertions of acts of possession by the parties there was overwhelming evidence in favour of the appellant. Responding, counsel for the respondent contended that the respondent proved the acts of ownership as pleaded and that there was no need for a visit to the locus in quo by the court.

Regarding the appellant’s issue 3.05 dealing with the admissibility of Exhibits ‘E’ and ‘D’ it was submitted in the appellant’s brief of argument that the court below was in error to have admitted them in evidence. It was argued that Exhibit ‘E’ which was the letter by the Gboko Local Government Council purporting to revoke the appellant’s Certificate of Occupancy Exhibit ‘G’ was made on 18/15/93 after the commencement and during the pendency of the suit and therefore inadmissible by virtue of section 91(3) of the Evidence Act Cap. 112 Laws of Federation of Nigeria 1990 since the council was an interested party to the proceedings. In regard to Exhibit ‘D’ which is the minutes of the meeting of the officials of the Council who deliberated over the panics’ dispute on the disputed plot, it was submitted that Exhibit ‘D’ is a public document by virtue of section 109 (c) or the Evidence Act (supra) and that since it was not a certified copy, it was inadmissible vide section 112 of the Evidence Act supra. It was contended that even though there was no objection to the admissibility of the documents Exhibits ‘E’ and ‘D’ the court ought not to have admitted them. Counsel craved in aid the following authorities – Oseni v. Dawodu (1994) 4 NWLR (Pt.339) 390; (1994) (Pt. 11) 4 S.C. 197 at 209; Alase & ors. v. Ilu & ors. (1965) NMLR 66 at 77; Okulade v. Alade (1976) All NLR (Pt.1) 67. It was further canvassed that Exhibit ‘D’ on the face of it is an instrument affecting interest in land and therefore registrable and not having been registered was inadmissible in evidence by virtue of section 15 of Lands Instrument Registration Law Cap. 58, Laws of Northern Nigeria 1963 as applicable to Benue State. In answer to those submissions, counsel to the respondent submitted in his brief that the decision of the lower court would have been the same had Exhibits ‘E’ and ‘D’ been rejected in evidence since there was other evidence other than Exhibits ‘E’ and ‘D’ to justify the conclusion arrived at by the court below. Counsel referred to section 227(1) of the Evidence Act 1990 and the cases of Oseni v. Dawodu (1994) 4 NWLR (Pt.339) 390; (1994) 4 SCNJ (Pt.11) 197 at 209 and Union Sank v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt.361) 159; (1994) 9 SCNJ 1 at 14-15 to buttress his submission.

The next issue canvassed in the appellant’s brief is issue No. 3.06 dealing with the award of N6, 000 general damages which the appellant’s counsel contended has no basis or influenced by irrelevant considerations not borne out from the evidence. The respondent’s reply to this submission on the quantum of general damages awarded is that trespass to the respondent’s plot 1883 was established and that it attracted general damages notwithstanding the extraneous matter taken into consideration by the lower court. We were urged to affirm the general damages awarded.

Finally, on the appellant’s last issue, No 3.07 dealing with weight of evidence, it was contended in the appellant’s brief that if the credible evidence adduced by each party were to be weighed on an imaginary scale, the preponderance of evidence would be in favour of the appellant to warrant the dismissal of the respondent’s case vide the cases of A.R. Mogaji & ors. V. Madam Rabiatu Odofin & Ors. (1978) 4 S.C. 91 at 93-95; Olufosoye & 2 ors. v. Olorunfemi (1989) 1NWLR (Pt.95) 26 at 37. We were urged to allow the appeal and dismiss the respondent’s case. Learned counsel for the respondent in reply drew attention to his reply with respect to the appellant’s first issue which reply he submitted has taken care of the appellant’s submission under consideration. He urged on us to dismiss the appeal and affirm the judgment of the court below:

I have deliberately reviewed the submissions of both counsel on various issues even thought take the view that the crucial questions for the resolution of the appeal are not as extensive as the points elaborately agitated. As indicated in the respondent’s claim earlier set out in this judgment, the principal relief sought by the respondent is a declaration of title to plot No 1883 Gboko South. The methods adopted to establish title are as pleaded in paragraphs 3 to 9 of his amended statement of claim which read as follows:

“3. The plaintiff in 1974 applied for a plot or land for residential purposes to the Gboko Local Government Council which application was granted and plot No 1883 Gboko South was allocated to him.

4. The plaintiff was after the allocation, taken to the site of the plot by the staff or the Local Government Council’s Land and Survey Department and shown its location and extent which measures 100′ x 50′,
5. The grant of the said plot to the plaintiff was cryslalised by the issuance to him of a certificate of occupancy by the Local Government Council dated the 30th day of October, 1974. At trial, the plaintiff will tender and rely on the original or photocopies of the said certificate of occupancy.
6. The plaintiff went into possession immediately after the grant to him of the plot, erected two round huts and sunk (sic) a deep well thereon. The plaintiff also planted economic trees on the said plot.
7. The plaintiff has since the grant of the plot to him been paying annual ground rents thereon to date.
8. At trial the plaintiff will tender and rely on …
9. After erecting the two round huts on the plot, the plaintiff put into occupation various persons including one Mrs. Mary Adaa thereon.”

The above averments show clearly that the respondent relies on grant by document of title and acts of ownership which are two of the five methods recognised for proving title to land: See D.O, Idundun & ors. V. Daniel Okumagba (1976) 9 -10 S.C. 227-246; Sunday Piaro v. Chief Tenalo & ors. (1976) 12 S.C. 31 at 42. But it has since been recognised that a party who relies on a grant by way of a document of title to land need not in addition prove his acts of ownership exercised over the land. In this regard, it is apt to refer to the dictum of Oputa J.S.C. in the case of O. Odofin v. Isaac Ayoola (1984) 11 S.C. 72 at page 11A where His Lordship said:-

“If a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But where as in this case, the proof of the grant is inconclusive, the bottom is knocked out of the appellant’s claim. When his root ceases to stand, the stem and branches will fail with the root. In other words, where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of possession; it is not pessissible to substitute a root of title that has failed with acts of possession which should have derived from that root. The position will be different where no specific root of title is pleaded – that is where the pleading is vaguely and broadly based on ‘traditional history’. Traditional evidence, as has been decided on many occasions, is also partly factual as to actual events occurring within living memory, but it has its main root in what the ancestors and predecessors in title of the claimant did on the land from time immemorial. There, where the evidence of tradition is inconclusive, the case will have to rest on question of ‘acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners: – Ekpo v. Ita XI NLR 68; Ekpo V. Ita supra did not decide that where a specific root of title is pleaded (like grant or purchase) and not proved, the claimant can fall back on acts of possession.

In the instant case, the respondent having specifically pleaded his root of title to be a grant by way of a document of Certificate of Occupancy No. 1883, Exh. A, his duty is to prove that grant and if he fails to do so, his acts of ownership on the land even if established will not avail him.

Production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace his root of title to one whose ownership of the land has been established. Lawson v. Ajibulu (1997) 6 NWLR (Pt.507) 14 at 31; Ogunleye v. Oni (1990) 2 NWLR (Pt.135)745 at 782.In the case in hand, it is common ground by both parties that the radical title of the land in dispute was vested in Gboko Local Government Council. That being the case, there is no need for the respondent to prove how the Council derived title to the land. The respondent tendered his document of title, that is, the Certificate of occupancy No 1883 which was admitted in evidence as Exhibit ‘A’. The admissibility of documentary evidence is one thing but the weight to be attached to that document is a different matter: A document may be admissible in evidence under the provisions of the Evidence Act, the weight to be attached to its contents is another matter, for every piece of evidence that has been admitted in the course of proceedings is subject to be tested for credibility, weight or cogency by the trial court before it becomes acceptable: Vide A.-G. Oyo State v. Fairlakes Hotels Ltd. (1989) 5 NWLR (Pt.121) 255; Ayeni v. Dada (1978) 3 S.C. 35 at 61. The simple and crucial question that arises for determination in this appeal is whether the respondent’s Certificate of Occupancy No. 1883 Exhibit’ A’ is of such a probative value as to establish that the land in dispute was granted to him by the Gboko Local Government Council. Put differently, was the respondent granted the land in dispute per the Certificate of Occupancy, Exhibit ‘A’?

For a document such as a Certificate of Occupancy to be relied upon as a root of title to a piece of land, such a document must relate to an identifiable piece of land. This can be achieved in several ways, such as – by describing accurately the boundaries of the land in question, or by annexing a survey plan of the land or by reference to a particular plot of land in a layout plan. In the respondent’s Certificate of Occupancy Exh. ‘A’, it is observed that part of it reads as follows:

“Schedule – Description and Plan of Land

“(i) Number of the Plot …1883

(ii) Town/Village in which situate … Gboko South

(iii) Location/Ward of the Town/village in which situate… South

(iv) Approved size of the Plot … 100′ x 50′

(v) Annexed Plan Gboko L.A. Survey Plan No…”

It is pertinent to observe that the space provided in the above Exh A for the survey plan of the land or plot being granted is blank. The implication is that the survey plan of the land in question was not annexed to the Certificate of Occupancy Exh ‘A’. A grant of an unidentifiable plot of land measuring 100′ x 50′ confers on the grantee title to no land. The sum total of all I have been saying is that the respondent’s Certificate of title Exh ‘A’ conferred no title of any piece of land to the respondent. In his judgment, the learned trial Judge on page 70 line 5 to 7 of the record held:

“I am of the view that there is overwhelming evidence that plot No 1883 and 2489 are one and the same.”

With respect to the learned trial Judge, I do not subscribe to that view. The respondent must first establish the identify of plot 1883 before further enquiry as to whether that plot is the same as Plot 2489. Had there been a survey plan annexed to Exh. A, a composite plan of that plan superimposed on a survey plan of the land in dispute would have indicated beyond doubt whether respondent’s land is the same as the land in dispute. The respondent led evidence to show that upon being granted the land in dispute, he was taken to the site where the size of the land granted to him was measured to be 100′ x 50′ but he did not testify as to whether he demareated the boundary of the land. Even if he were to lead evidence to that effect, such oral evidence will be inadmissible to add to or vary the grant in Exh. ‘A’, vide section 132(1) of the Evidence Act 1990.

From the foregoing, the conclusion I have reached is that the respondent did not prove his entitlement to the land in dispute. This conclusion disposes of all the other points elaborately canvassed in this appeal. In consequence this appeal is allowed. The judgment of Hwande J dated 10/4/95 is set aside. In its place, I make an order dismissing the respondent’s case. Each party is to bear its costs.

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Other Citations: (1998)LCN/0435(CA)