Yunana Jagaba & Ors V. Usman Mohammed Umar (2016)
LawGlobal-Hub Lead Judgment Report
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
The case leading up to this appeal arose out of dispute over the ownership of a parcel of farm land lying and being at Kamazou Village in Chikun Local Government Area of Kaduna State and the Respondent, as plaintiff, commenced the action in the Lower Court against the Appellants, as defendants. The claims of the Respondent by an amended statement of claim dated the 30th of January, 2012 were for:
i. A declaration that the farm land situate at Kamazou Village in Chikun Local Government Area of Kaduna State rightly belongs to the Respondent by virtue of a certificate of occupancy, No CK/A/000616 and Sale Agreement between him and Alhaji Ahmed Mohammed Goni which conferred title on him.
ii. An order of perpetual injunction restraining the Appellants or whomsoever, their servants, agents, privies and any other person that may act on their behalf from further entering, erecting, developing any building, selling, destroying or transferring the Respondent’s farm land situate at Kamzou Village in Chikun Local Government Area of Kaduna State, particularly
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measuring 19.9 Hectares and 49 Acres.
The case of the Respondent on the pleadings was that he became the owner of the parcel of land in dispute by virtue of purchase from one Alhaji Ahmed Mohammed Goni as evidenced by a Sale Agreement and that the said parcel of land was covered by a certificate of occupancy No CK/A/000616 registered as No. 716 at Page 616 in Volume 1 of the Register of Deeds in the office of the Secretary to Chikun Local Government, Kujama. It was his case that about nine months hence, he discovered that the Appellants had been surreptitiously been carving out portions of the farm land and selling same to third parties after destroying all his valuable chattels on the land out of malice during the last post election violence that took place in Kaduna State and that when he sent people to advise the Appellants to vacate his farm land, they were chased by fierce looking armed gunmen. It was his case that he has been denied access to his property and that the Appellants action was a naked show of brute force prejudicial to his interest.
In response, the Appellants denied the case of the Respondents and stated that the land in dispute
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was their ancestral land which they inherited from their grandparents and that they have always been owners of the farm land along with their other brothers who were not joined in the suit and the land contained their burial grounds and was the only farm they have been cultivating to feed themselves and their family for many years. It was their case that they never sold a portion of the farm land to any one called Alhaji Ahmed Mohammed Goni and neither was their farm land taken over by the Chikun Local Government as the Local Government never paid them compensation and that the Local Government did not at anytime survey or laid beacons on the farmland and that the certificate of occupancy issued to the Respondent did not cover their land. It was their case that the farm land in dispute situate at Kamazou Village and measuring 12.31 hectares was first settled upon by their grandfather called Muko Makama over one hundred years ago and he was later joined by his brother called Yero and that the two of them migrated from a place called Kan Rafi to settle on the farm land in dispute and that these two people were later joined by their other Gbagyi brothers, the
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Sauri Kawo family, Zam Maken family, Bagudu family, Kaura Nukacha family and Yahaya Mwa family and that all these people cleared and settled on the large span of farmland.
?It was the case of the Appellants that they were descendants of Nuku Makama, Sauri Kawo, Zam Makeri and Bagudu Zarmai and that they were bom on the farmland in dispute and that their grandparents chose the farmland for settlement because of a large rock located on the land and which they used to hide themselves during the slave trade and that the evidence of the houses built on the farmland by their grandparents and of the pieces of broken pots used by their mothers and wives as well as of the broken farming tools and of grave yards used to bury their young and old were still very visible on the farmland. It was their case that their parents also settled the parents of one Alhaji Abdullahi Musa on the southern part of the land in dispute and that the parcel of land in dispute was bounded on the east by the NNPC Water Intake Road, on the west by the farmland of Damina, a Gbagyi man, on the south by Alhaji Abdullahi Musa’s farmland and on the north by the Kamazau River and that word
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“Kamazau? was a Gbagyi word meaning “before they come” and that they had a survey plan of the land.
?It was the case of the Appellants that at a point in time they were approached and deceived by Alhaji Ahmed Mohammed Goni who said that he had permission of the Government to breakdown the rock on the farmland for purposes of road construction and that they believed him, even without seeing the permission, and that they had to vacate the farmland because Alhaji Mohammed Goni used dynamites to blast the rock and this made the place inhabitable and they relocated to places such as new Kamuzau, Janruwa, etc but that they continued to farm on the land until the rock blasting stopped. The Appellants counterclaimed for:
i. An order for declaration of title to the farmland in dispute situate in Kamazau measuring 12.31 hectares covered by a survey plan in Chikun Local Government Area of Kaduna State.
ii. An order of this Honorable Court setting aside the Certificate of Occupancy, No CK/A000616
iii. An order of perpetual injunction restraining the Respondent by himself, his servants, agents, privies or any other person claiming through him from
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trespassing into the land.
The matter was heard on the merits by the Lower Court and the Respondent called two witnesses in proof of his case and tendered exhibits while the Appellants called three witnesses in proof of their case and they tendered one exhibit. After the close of trial and the delivery of final written addresses by Counsel to both parties, the Lower Court delivered a considered judgment wherein it found in favour of the Respondent and it granted the claims of the Respondent and dismissed the counterclaims of the Appellants. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 9th of July, 2012 against it and the notice of appeal contained ten grounds of appeal.
In ventilating the grievances of the Appellants before this Court, their Counsel filed a brief of arguments dated the 26th of May, 2015 and in response to which the Counsel to the Respondent filed a brief of arguments dated the 12th of November, 2015 and which brief of argument was deemed properly filed and served by this Court on the 2nd of December 2015. Counsel to the Appellants filed a Reply brief of
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arguments on the 16th of February, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their oral submissions in the appeal.
The reply brief of the Counsel to the Appellants spanned twenty-three pages and it was in response to the Respondent’s brief of arguments which contained twenty-four pages and three pages of which dealt with introduction and facts not in dispute. Thus, effectively the twenty-three pages of reply brief was a response to twenty-one pages of arguments in the Respondent’s brief. This, without more, shows that the reply brief was exuberant and vivacious. A read through the reply brief shows that the Counsel to the Appellants merely used the opportunity of filing a reply brief to reargue the appeal and for present arguments that should have been contained in the Appellants’ brief of arguments. This Court and the Apex Court have stated times without number that the essence of a reply brief in the appeal process is to enable an appellant respond to fresh issues a respondent raises in his brief of arguments which the appellant did not or could not have
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contemplated, let alone address in his main brief and it is not for the purpose of rearguing the appeal or canvassing arguments that should have been included in the main brief – see for example Popoola Vs Adeyemo (1992) 8 NWLR (Pt.257) 1, Olafisoye Vs Federal Republic of Nigeria (2004) 4 NWLR (Pt.864) 580 and Chukwu Vs Amadi (2012) 4 NWLR (Pt.1298) 136. Where a reply brief runs foul of its essence, it is not worthy of a judicious consideration and will be liable to be discountenanced – Akande Vs Adisa (2012) 15 NWLR (Pt.1324) 538. This Court will thus discountenance the Reply brief of the Appellants in its consideration of the submissions of the parties in this appeal.
Counsel to the Appellants distilled three issues for determination in this appeal and these were:
i. Whether between the Appellants and the Respondent, from the totality of the records of appeal, who has a valid title on the farmland in dispute.
ii. Whether from all the available evidence including all exhibits tendered in Court, there is anything to support the claim of the Respondent to a valid title to the subject of dispute.
iii. If at all, the Respondent has any title,
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whether the proper procedure was followed and all requirements met to enable the Respondent acquire title over the said farmland in dispute.
In arguing the first issue for determination, Counsel stated that the case of the Respondent in testimonies of the two plaintiff witnesses was that one Alhaji Ahmed Mohammed Goni, the first plaintiff witness, was first allocated and latter subsequently issued with a certificate of occupancy over the land, the parcel of land in dispute by the Chikun Local Government for a term of ninety-nine years commencing from the 19th of April, 1990 and that he sold the property to the Respondent on the 14th of September, 1991 for the sum of N1.8 Million as evidenced by a Sales Agreement executed on the 18th of September, 1991, and he surrendered the certificate of occupancy to the Respondent; the Sales Agreement and certificate of occupancy were Exhibits 1 and 3. Counsel stated that it was case of the Respondent that subsequent to the purchase of the land, he paid requisite fees to the Chikun Local Government and a sketch of the property was prepared for him and that he had valuable assets on the land which was destroyed by the
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Appellants and that the first plaintiff witness testified that the file containing the relevant documents was subsisting in the Land Registry of Chikun Local Government. Counsel stated that the Respondent did not tender the letter of the Chikun Local Government allocating the land to Alhaji Ahmed Mohammed Goni and neither did he tender the property file of the land in the Lands Registry of Chikun Local Government and that these omissions were fatal to the case of the Respondent, contrary to the finding of the Lower Court, because the Respondent had the burden of proving that the person he purchased the parcel of land from was properly allocated the land and that mere production of a certificate of occupancy was not conclusive proof of title and ownership; he referred to the cases of Nwabuoku Vs Onwordi (2006) All FWLR (Pt 331) 1236, Aigbobahi Vs Aifuwa (2006) All FWLR (Pt 303) 202 and Ogunleye Vs Oni (1990) 2 NWLR (Pt.135) 745.
Counsel stated that the Sale Agreement, Exhibit 1, was a registrable instrument and that having not been registered, it cannot transfer title to land and he urged this Court to exclude and discountenance the document and he referred
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to the cases of Ogbimi Vs Niger Construction Ltd (2006) All FWLR (Pt.317) 390 and Dagaci of Dere Vs Dagaci of Ebwa (2006) All FWLR (Pt.306) 786. Counsel stated that there was want of Governor’s consent to the transaction between Alhaji Ahmed Goni and the Respondent and this was also fatal to the case of the Respondent, again contrary to the finding of the Lower Court, and he referred to the provisions of Section 21 of the Land Use Act. Counsel stated that the Appellants led evidence of their settlement on the land in dispute and of their continuous farming thereon for over one hundred years and that Chikun Local Government did not acquire the land as there was no evidence of payment of compensation to the settlers and that it was the responsibility of the Respondent to show that due process was followed in the obtaining of the certificate of occupancy by his vendor and he ought to have produced evidence from Chikun Local Government to this effect. Counsel stated that in view of these defects, the finding of the Lower Court that Respondent established its claim for title to the land in dispute was not supported by evidence on record.
?Counsel stated that a
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perusal of the records of appeal reveals that the Lower Court was completely silent on the case made out by the Appellants on their ownership of the land in dispute through evidence of traditional history and he traversed through the case of the Appellants and the evidence of the defence witnesses and made copious reference to the book, Land Law in Nigeria M. G. Yakubu on the place of acquisition of ownership of land by settlement in Nigerian Land Law. Counsel stated that the Respondent filed no defence to the counterclaim and that placing the case made out by the Respondent and the Appellants on the ownership of the land in dispute side by side, it was obvious that the case of the Respondent was weak and did not amount to prove of case by balance of probability and was thus not entitled to judgment.
Counsel stated that the evidence of the defence witnesses were not challenged either under cross-examination or by the evidence led by the plaintiff witnesses and the evidence of the defence witnesses was consistent that the Appellants were in uninterrupted possession of the land, contrary to the finding of the Lower Court, and the fact of the evidence led
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by the parties was that the Respondent was not in possession of the land and the assertion of the Respondent that when he sent people to the Appellants to vacate the land they were chased away by fierce looking gun men was an admission that the Appellants were in possession of the land in dispute and he referred to the case of Okoko Vs Dakolo (2006) All FWLR (Pt.336) 201.
Counsel stated that the findings of the Lower Court on the unreliability of the sketch map tendered by the Appellants, Exhibit 5, on the ground that it was not dated or signed by the maker was not supported by the evidence on record as the sketch, the seal and name of the surveyor that prepared same and the signature of the surveyor was in the seal. Counsel stated that reliance placed by the Lower Court on the sketch map attached to the certificate of occupancy, Exhibit 3, was also not supported by evidence on record because the sketch map was not was undated, not sealed and did not carry the name of the surveyor that prepared it. Counsel stated that the Lower Court also fell into error when it refused the application of Counsel to the Appellants to visit the locus in quo as it denied
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the Lower Court the opportunity to see and ascertain on the ground the evidence led by the parties at trial and that this case was one of such cases that a visit to the locus in quo was imperative to clear the dispute on the boundaries of the land claimed and he referred to the cases of Iliyasu Vs Bayero University (1988) 7 SC (Pt.II) 6 and Orugbo Vs Una (2002) FWLR (Pt.127) 1024.
Counsel stated that on the whole, it was the Appellants that showed that they had a valid title to the land in dispute and he urged this Court to so hold and to resolve the just issue for determination in favour of the Appellants.
?On the second issue for determination, Counsel reiterated that the Sales Agreement entered between the Respondent and Alhaji Ahmed Goni, Exhibit 1, was a registrable instrument within the meaning of Sections 2 and 6 of the Land Registration Law and was thus inadmissible in law by the provision Section 15 of the Law and it ought to be excluded and discountenanced. Counsel stated that with regard to the certificate of occupancy, Exhibit 3, it was stated therein that the land was granted “for purpose of Residential and Commercial (excluding petrol
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filling stations and industrial purposes)” while the evidence of the first plaintiff witness under cross-examination was that he was allocated the land for farming and mining activities and this was a contradiction that ought to have been cleared by tendering the property file of the land in the Lands Registry of Chikun Local Government. Counsel stated that there were also issues on the signatures of the Respondent and of Alhaji Ahmed Goni on Sales Agreement and that the signatures thereon were different from the specimen signatures signed in open Court by the two of them in the course of their testimonies as first and second plaintiff witnesses.
Counsel stated that the exhibits tendered in Court by the Respondent did not thus support his claim of a valid title to the parcel of land in dispute. Counsel urged that this issue for determination be resolved in favour of the Appellants.
On the third issue for determination, Counsel reiterated the issue of want of Governor’s consent to the Sales Agreement and he again referred to the provisions of Section 21 of the Land Use Act and stated the want of consent that brought the Sales Agreement into breach of the Land
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Use Act. Counsel also referred to the provisions of Section 28 of the Land Use Act dealing with revocation of right of occupancy and stated that assuming that Chikun Local Government acquired the parcel of land in dispute, there was no evidence that it paid compensation to the Appellants and that this fact was evident in the testimony of the first defence witness. Counsel stated that though the first plaintiff witness gave evidence that the parcel of land in dispute was given to him for farming and mining purposes, no government licence was tendered by the Respondent in support of this assertion and that this meant that there was no evidence that the land was acquired for a public purpose as provided in Section 28 of the Land Use Act and that Section 29 of the Land Use Act states that compensation must be paid for land acquired and that this was also not done by Chikun Local Government. Counsel stated that acquisition of ownership of the land in dispute by the Respondent from Alhaji Ahmed Goni cannot thus stand as the right channel was not followed and proper things were not done as required by the Land Use Act and that the Respondent had no title to the land in
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dispute.
In concluding the arguments, Counsel urged this Court to allow the appeal, dismiss the claims of the Respondent in their entirety and grant the counterclaims of the Appellants.
On his part, Counsel to the Respondent formulated one sole issue for determination in the appeal and this was:
Having regard to Exhibits 1 and 3 (certificate of occupancy granted more than 20 years ago) which were tendered and admitted in evidence without objection, whether the Respondent has not established his title to the disputed land.
In arguing the issue for determination, Counsel reiterated the long established principles that there are five recognized ways of proving title to land and that proof of one of the ways was sufficient to ground a claim of title to land and he referred to the case of Ojoh Vs Kamalu (2005) 18 NWLR (Pt.958) 523. Counsel stated that one of the five ways was the production of valid title document and which, once produced, enjoys the presumption of regularity until proven otherwise and is prima-facie evidence of title of the land it covers and that where the contrary is not proved, the Courts are enjoined to accept such document
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of title in proof of title to land and he referred to the case of Agbaosi vs Imevbore (2014) 1 NWLR (Pt.1339) 556.
Counsel stated that it was trite law that the holder of a certificate of occupancy is entitled to hold the land in question to the exclusion of other persons unless and until the certificate of occupancy is set aside and he referred to the cases of Gankon vs Ugochukwu (1993) 6 NWLR (Pt.297) 55 and Grace-Modu Vs Madi (2008) 6 NWLR (Pt.1083) 296.
Counsel stated that the Respondent predicated his root of title to the land in dispute on document of title and that the Respondent led evidence and tendered both the Sales Agreement between him and Alhaji Ahmed Mohammed Goni as Exhibit 1 and the certificate of occupancy of the said Alhaji Ahmed Goni as Exhibit 3 without objection from the Appellants and that at no time throughout the course of the proceedings did the Appellants contest the existence of Exhibit 3 and that these meant that two documents were legally valid and existing and they established the root of title of the Respondent. Counsel stated that the two documents were executed more than twenty years ago, Exhibit 1 on the 18th of
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September, 1997 and Exhibit 3 on the 19th of April, 1990, and that the law is that documents that were twenty years old are presumed to be regular and genuine and he referred to Section 130 of the Evidence Act and the case of Johnson Vs Lawanson (1971) 1 All NLR 58.
Counsel stated that the finding of the Lower Court that Exhibits 1 and 3 established the claim of the Respondent for title to the land in dispute cannot be faulted and that the entire arguments of Counsel to the Appellants that the non-production or tendering of the letter of allocation of the land to Alhaji Ahmed Goni by Chikun Local Government and of the property file from the Lands Registry of Chikun Local Government were fatal to the case of the Respondent were not well-founded. Counsel stated that the case of the Respondent in the testimony of the second plaintiff witness was that it was the letter of allocation and the property file that gave birth to the certificate of occupancy, Exhibit 3, and it was on Exhibit 3, coupled with Exhibit 1, that the Respondent predicated his claim of ownership of the land in dispute and not on the letter of allocation of land and/or on the property file
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of the land and that the Respondent was thus right to tender?only Exhibits 1 and 3.
On the issue of non-registration of Exhibit 1 canvassed by the Counsel to the Appellants, Counsel to the Respondent stated that the issue was not canvassed before the Lower Court and that as such the Appellants cannot validly raise it in this appeal and that the two documents were admitted without objection at the trial and that it was too late to canvass that they should be expunged. Counsel stated that Exhibit 1 was tendered in proof of the assertion that the land in dispute was indeed sold to the Respondent and in consequence of which the certificate of occupancy, Exhibit 3, was surrendered to him and that vendor of the land put the Respondent in possession thereof, thus conferring an?equitable title to the land in favour of the Respondent and which equitable title was capable of being converted to a legal estate and he referred to the cases of Awaogbo Vs Eze (1995) 1 NWLR (Pt.372) 393, Tewogbade vs Obadina (1994) 4 NWLR (Pt 338) 326, Kwande vs Mohammed (2014) LPELR-22575(CA). Counsel stated that Exhibit 1. was thus akin to a receipt acknowledging payment for the
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disputed land and establishing the transaction that took place between the Respondent and Alhaji Ahmed Goni and did not thus need to be registered to be admissible because a registrable instrument was admissible as evidence of transaction between the parties to it and he referred to the cases of Awaogbo Vs Eze supra and Okoye Vs Dumez Nigeria Ltd (1985) 1 NWLR (Pt.4) 783. Counsel stated that the submissions of Counsel to the Appellants that Exhibit 1 be expunged for non-registration and for want of Governor’s consent were completely misplaced and misleading.
Counsel stated that the issue of lack of due process in obtaining Exhibit 3 canvassed by Counsel to the Appellant was not covered by the pleadings and was raised for the first time in the final written address of Counsel to the Appellants before the Lower Court and that the Appellants led no evidence in proof of the assertion at the trial.
Counsel stated that the argument of Counsel to the Appellants on the sketch plan accompanying Exhibit 3 not being dated, signed and sealed was also not covered by the pleadings and no evidence was led thereon and that as such the argument was of no moment.
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Counsel reiterated that the Exhibit 3 was issued over twenty years ago and it is thus presumed genuine and the duty of its non-genuineness was on the Appellants and they led no evidence to prove same.
Counsel stated that the contentions of Counsel to the Appellants that the Lower Court failed to consider the evidence of traditional history they led in support of their counterclaim and that the Respondent did not file a defence to the counterclaim was erroneous and misleading because a counterclaim is a separate and independent action and that the law was that a counterclaim can only succeed where the main claim fails and that where the main claim succeeds, there is no need to consider the counterclaim and the counterclaim must fail in such circumstances. Counsel stated that the finding made by the Lower Court on this point was unassailable and that despite holding that the counterclaim collapsed because the case of the Respondent succeeded, the Lower Court still proceeded to consider the counterclaim of the Appellants on the merits and it concluded that the counterclaim was not established. Counsel stated that the arguments of Counsel to the Appellants
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that the Appellants were in possession of the land in?dispute from time immemorial contradicted the pleadings of and the evidence led by the Appellants and he referred to paragraphs 28 and 29 of the pleadings of the Appellants and to portions of the testimonies of the three defence witnesses wherein they admitted the presence of the Alhaji Ahmed Goni and the Respondent on the land carrying out quarrying activities.
Counsel stated that the arguments of the Counsel to the Appellants on the failure of the Lower Court to visit the locus in quo was strange and unknown to law as it was incorrect that failure to visit locus in quo is against the law of evidence and that it was settled law that a visit to the locus in quo is embarked upon to clear doubts which might have arisen from the conflicting evidence or apparent misrepresentation of facts by the parties in the course of trial and that an application to visit locus in quo is discretionary and is not granted for the asking and there must be clear evidence of the conflict sought to be resolved by the visit and he referred to the case of Muazu Vs Unity Bank Plc (2014) 3 NWLR (Pt.1395) 512. Counsel stated that
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the Lower Court rightly refused to exercise its discretion in favour of the application to visit locus and that the Appellants have not shown that they suffered any injustice as a result of the refusal of the request.
Counsel concluded his arguments by urging this Court to find that the Respondent proved his title to the land in dispute and to dismiss this appeal and affirm the decision of the Lower Court.
It is clear from the pleadings of the parties that there were two claims of ownership of the parcel of land in dispute before the Lower Court; the Respondent’s claim and the Appellants’ counterclaim. The task before the Lower Court in this matter was to determine who between the Respondent and the Appellant led better evidence in support of his case on the ownership of the land in dispute – Arase Vs Arase (1981) 5 SC 33 at 35 and Davies Vs Ajibona (1994) 5 NWLR (Pt 343) 234 at 258F, Nteogwuija Vs Ikuru (1998) 10 NWLR (Pt.569) 267. Where there are two claimants to a parcel of land, declaration of ownership is made in favour of the party that proves better title – Adole Vs Gwar (2008) 11 NWLR (Pt.1099) 562. The Lower Court carried out this task and
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it found in its considered judgment that the Respondent made out a better case of title to the land in dispute and it granted the claims of the Respondent and dismissed the counterclaim of the Appellants. The brief of this Court in this appeal is to review this decision of a Lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the Lower Court arrived at the right decision.
It is elementary that the starting point for the consideration of a claim of ownership of land is, and must be, the identity of the parcel of land in dispute. This point was made in the case of Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 where the Supreme Court stated that before a Court trying a land case goes into the facts of the case it must firstly satisfy itself of the certainty of the land in dispute and its boundaries. It is settled law that the land in dispute in a land suit is none other than the parcel of land claimed by the claimant. It is usually more particularly delineated in his survey plan and in respect of which the parties join issues. It is not the land shown or claimed by the defendants in his
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statement of defence unless such a defendant counterclaims against the claimant in respect of such land – Owotaire Vs Onokposo (1984) 12 SC 19, Ezeudu vs Obiagwu (1986) 2 NWLR (Pt.21) 208, Ebenike vs Ukpakar (1996) 7 NWLR (Pt 460) 254, Emiri vs Inneyeh (1999) 4 NWLR (Pt.599) 442, Adone vs Ikebudu (2001) 14 NWLR (Pt.733) 385, Momoh vs Umoru (2011) 15 NWLR (Pt.1270) 217 .
The claim of the Respondent was for a declaration of ownership of the farm land measuring 19.09 hectares or 49 acres situate at Kamazou Village in Chikun Local Government Area of Kaduna State covered by a certificate of occupancy No CK/A/000616. The certificate of occupancy was tendered in evidence as Exhibit 3 and it had attached to it a sketch map of the farmland and the land was shown to be
bounded in the north by a stream, in the east by NNPC Water Road, and in the south by a road and there is depiction of a big rock in the center of the farmland. The case of the Appellants was that the parcel of land they were claiming measured 12.31 hectares and was bounded on the east by the NNPC Water Intake Road, on the west by the farmland of Damina, a Gbagyi man, on the south by Alhaji
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Abdullahi Musa farmland and on the north by the Kamazau River and they tendered a sketch of the land as Exhibit 5. The land depicted on the sketch was bounded in the east by NNPC Water Intake Road, in the north by a river and in the south a footpath and a large rock was shown to exist in the center of the land.
It is obvious that the sketch maps of the Respondent and of the Appellants referred to the same parcel of land and that the portion of land claimed by the Appellants formed part of the parcel of land claimed by the Respondent. It is settled law that where the area of land in dispute is well known to the parties, or where there is enough evidence for the Court to infer the identity of the land, the question of proof of the identity of the land does not arise – Akinterinwa Vs Oladunioye (2000) 6 NWLR (Pt.659) 92, Gbadamosi vs Dairo (2007) 3 NWLR (Pt.1021) 282, Adedeji Vs Oloso (2007) 5 NWLR (Pt.1026) 133, Aremu Vs Adetoro (2007) 16 NWLR (Pt.1060) 244, Udechukwu vs Ezemuo (2009) 14 NWLR (Pt.1162) 525, Ayuya Vs Yonrin (2011) 10 NWLR (Pt.1254) 135. The identity of the land in dispute in this matter was established and the parties were ad idem on it.
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Thus, all the arguments of Counsel to the parties on whether the sketch map of the Respondent was signed, sealed and stamped by a surveyor and the comments of the Lower Court on the usefulness of the sketch map of the Appellants were completely unnecessary.
Now, it is settled law that in an action for declaration of ownership to land, party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Lawal vs Akande (2009) 2 NWLR (Pt.1126) 425, Chukwu Vs Amadi (2009) 3 NWLR (Pt.1127) 56, Usung Vs Nyong (2010) 2 NWLR (Pt.1177) 83, Ogunjemila vs Ajibade (2010) 11 NWLR (Pt 1206) 559. The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities- Kaiyaoja Vs Egunla (1974) 12 SC 55, Abaye Vs Ofili (1936) 1 NWLR (Pt.15) 134, Akintola Vs Solano (1986) 2 NWLR (Pt.24) 298, Eyo Vs Onuoha (2011) 11 NWLR (Pt.1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt.1270)
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217.
To succeed in a case for declaration of title, a party must establish the method by which he acquired the said title; ownership of land cannot be claimed without first establishing that ownership – Fasoro Vs Beyioku (1988) 2 NWLR (Pt.76) 263, Nwofor Vs Nwosu (1992) 9 NWLR (Pt.264) 229, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265. The law is that a claimant, in a case on ownership of land, must satisfy the Court as to (a) the precise nature of the title claimed, that is to say whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Emergwara Vs Nwaimo (1953) 14 WACA 347, Atuanya Vs Onyeiekwe (1975) 5 ESCLR 359, Obawole Vs Coker (1994) 5 NWLR (Pt.345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt.672) 370 at 382, Edohoeket Vs Inyang (2010) 7 NWLR (Pt.1192) 25, Obineche Vs Akinsobi (2010) 12 NWLR (Pt.1208) 383.
The Respondent relied on purchase of the land in dispute from one Alhaji Ahmed Mohammed Goni. The law recognizes that there are two clear and distinct ways in which land can be properly and
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rightly sold, valid acquired and legally transferred in Nigeria and these are either under customary law; or under the received English law – Folarin Vs Durojaiye (1988) 1 NWLR (Pt.70) 351, Iragunima Vs Uchendu (1996) 2 NS7LR (Pt.428) 30, Ezeagu Vs Onwuchekwa (1997) 4 NWLR (Pt.502) 689, Njoku vs Dikibo (1998) 1 NWLR (Pt 534) 498, Ojelade vs Soroye (1998) 5 NWLR (Pt.549) 284, Buraimoh vs Karimu (1999) 9 NWLR (Pt 618) 310. What determines under which system of law the sale has been conducted depends on the nature of the transaction and the procedure followed in making it; for example sale by an agreement in writing is one of the absolutely necessary features of a valid sale under the received English law – Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt.1018) 360. It is clear from the facts of this case that the Claimant relied on purchase under the received English Law as he stated that the purchase was evidenced by a Sale Agreement dated the 18th of December 1991.
It is a well settled principle that the payment of purchase price coupled with being in possession thereof in a sale of land under English law confers an equitable
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title upon a purchaser which title is capable of defeating subsequent purchasers – Kachalla Vs Banki (2006) 8 NWLR (Pt 982) 364,Yaro Vs Arewa Construction Ltd (2007) 17 NWLR (Pt 1063) 333, Ezenwa Vs Oko (2008) 3 NWLR (Pt.1075) 610, West African Cotton Ltd Vs Yankara (2008) 4 NWLR (Pt.1077) 323. The Respondent led unchallenged evidence through the testimonies of the first and second plaintiff witnesses that he purchased the land for the sum of N1.8 Million and that he took over the possession of his vendor and had valuable chattels on the land and that he caused sketch plan of the land to be prepare for him by the Chikun Local Government. The State Agreement evidencing the transaction was tendered as Exhibit l and the sketch plan was tendered as part of Exhibit 3. The Sale Agreement showed that the Respondent indeed paid the sum of N1.8 Million for the purchase of the land and the Supreme Court has held that carrying out a survey or going unto a parcel of land to prepare a sketch of land was a sufficient act of possession to ground ownership of land – Basil Vs Fajebe (2001) 11 NWLR (Pt.725) 592 and Adeniran vs Alao (2001) 18 NWLR (Pt.745) 361. The claimant led
31
adequate evidence of payment of purchase and possession to be invested with an equitable title over the land in dispute. The Courts have held that such a title is sufficient to sustain a claim of ownership of land – Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 NWLR (Pt 834) 427, Ashiru Vs Olukoya (2006) 11 NWLR (Pt 990) 1, Etajata vs Ologbo (2007) 16 NWLR (Pt 1061) 554.
Counsel to the Appellants questioned the admissibility of the Sale Agreement, Exhibit 1, on the ground that it qualified as an instrument under the provisions of the Land Instruments Registration Law and was not registered and that it was thus not admissible to prove title to land. It is correct that the Sale Agreement qualified as an instrument affecting land and that, strictly speaking, an instrument affecting land which is registrable but has not been registered cannot be pleaded or tendered or produced in evidence and if it is pleaded and inadvertently received in evidence, it should be ignored and expunged. The fact that no objection was taken as to its admissibility does not save it since its exclusion is enjoined by law – Akintola Vs Solano (1986) 2
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NWLR (Pt.24) 598, Registered Trustees of Muslim Mission Hospital Committee Vs Adeagbo (1992) 2 NWLR (Pt.226) 690, Oredola Okeya Trading Co Vs Attorney General, Kwara State (1992) 7 NWLR (Pt.254) 412, Co-operative Bank Ltd Vs Lawal (2007) 1 NWLR (Pt.1015) 287, Etajata Vs Ologbo (2007) 16 NWLR (Pt.1061) 554, Gbinjie vs Odji (2011) 4 NWLR (Pt.236) 103.
An unregistered registrable instrument is, however, not unpleadable and inadmissible for all purposes. Where it reflects the payment of money by the grantee or purchaser and the receipt of the payment by the grantor or vendor, it is can be pleaded and is admissible as a purchase receipt – Ole Vs Ekede (1991) 4 NWLR (Pt 187) 569. Tewogbade vs Obadina (1994) 4 NW-LR (Pt 338) 326, Mojekwu vs Mojekwu (1997) 7 NWLR (Pt 512) 283, Tella vs Usman (1997) 12 NWLR (Pt.531) 168, Okafor vs Soyemi (2001) 2 NWLR (Pt 698) 465, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt.1258) 375. Where the payment of the purchase price is coupled with a continuous possession of the land by the purchaser, an unregistered registrable instrument is admissible to prove equitable interest in land. This is predicated on the principle
33
that where the deed of conveyance or other document of title issued in favour of a purchaser is not registered but its holder is in possession of the land in issue an equitable interest in the property enures to his benefit and this is also as good as a legal estate – Fakoya vs St Pauls Church, Shagamu (1966) 1 All NLR 74 at 80, Oni vs Arimoro (1973) 3 SC 163, Umoffia vs Ndem (1973) 12 SC 69, Orizu Vs Anyaegbunam (1978) 5 SC 21, Okoye Vs Dumez (Nig) Ltd (1985) 1 NWLR (Pt.4) 783, Obijuru Vs Ozims (1985) 4 SC (Pt.1) 142 at 163, Ikone Vs Wachukwu (1991) 2 NWLR (Pt.172) 214, Olaleye vs. Trustees of ECWA (2011) 2 NWLR (Pt.1230) 1, Gbinijie vs Odji (2011) 4 NWLR (Pt.1236) 103.
Where a document is an estate contract and therefore registrable under the Land Instruments Registration Law, the document may be admitted in evidence without registration, if it is tendered, not as an “instrument affecting land” but only to establish evidence of a transaction between the parties – Agwunedu Vs Onwumere (1994) 1 NWLR (Pt.321) 375, Abu vs Kuyabana (2002) 4 NWLR (Pt.758) 599, Obienu vs Okeke (2006) 16 NWLR (Pt.1005) 225, Monkom vs Odili (2010) 2 NWLR (Pt.1179) 419. In
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Olowolaramo vs Umechukwu (2003) 2 NWLR (Pt.805) 537 and in Edohoeket vs Inyang (2010) 7 NWLR (Pt.1192) 25, the Court of Appeal stated that where a document evidences sale of land but from the proceedings in a case, the said document is tendered in evidence, not as evidence of title, but simply to establish a fact which one of the parties has pleaded, then such a document does not qualify as an instrument under the Land Instruments Registration Law and is admissible without being registered.
The Sale Agreement in issue in the instant case, Exhibit 1, was pleaded and tendered as evidence of the transaction of the purchase of the farmland in dispute by the Respondent from Alhaji Ahmed Mohammed Goni and not as a document of title. The document revealed payment of money for the purchase of the land. It was thus admissible in evidence. Counsel to the Appellants also challenged the usefulness of the Sale Agreement, Exhibit l, in assisting the case of the Respondent in that it amounted to an alienation of land and there was no Governor’s consent obtained before the alienation contrary to the provisions of the Land Use Act. The land in dispute was covered by a customary
35
right of occupancy as evidenced by the certificate of occupancy No CK/A/000616 issued by the Chairman of Chikun Local Government, and not by a statutory right of occupancy issued by the Governor of Kaduna State. Thus, by the provisions of Section 21, of the Land Use Act, the necessary consent to its alienation, in the circumstances, was that Chairman of Chikun Local Government, and not of the Governor.
It is correct that the combined effect of Sections 21 and 26 of the Land Use Act is to render null and void any alienation or transfer of a customary right of occupancy or interest or right there under without the consent of the Chairman of the appropriate Local Government just had and obtained – Savannah Bank of Nigeria Plc Plc v. Ajilo (1989) 1 NWLR (Pt.97) 309, Innih Vs Ferado Agro Consortium Ltd (1990) 5 NWLR (Pt.152) 605, Calabar Central Co-Operative Thrift & Credit Society Vs EkPO (2008) 6 NWLR (Pt.1083) 362, Edison Automotive Industries Ltd Vs National Economic Reconstruction Fund (2009) 8 NWLR (Pt.1144) 535.
However, in applying the provisions of Sections 21 and 26 of the Land Use Act, the Courts recognized that there are two broad stages
36
culminating into the vesting of title to a purchase in a land transaction. The first stage is the agreement or contract stage. At this stage of entering into a contract for sale of land, no alienation takes place and this is up to the point of arriving at a binding contract and as such no consent of the appropriate Local Government Chairman is required as a legal prerequisite at this stage. The second stage involves alienating or transferring the vendor’s right of occupancy and which is done by a conveyance of deed and because this stage invariably involves the vesting of title in the purchaser, consent of the appropriate Local Government Chairman must, as a legal prerequisite, be sought and obtained – Awojugbagbe Light Industries Ltd vs Chinukwe (1995) 4 NWLR (Pt.390) 379, Owoniboys Technical Services Ltd Vs Union Bank of Nigeria Plc (2003) 15 NWLR (Pt.844) 545, Olowu Vs Building Stock Ltd (2010) 2 NWLR (Pt.1178) 310, Mustapha Vs Abubakar (2011) 3 NWLR (Pt.1233) 123. These two stages of a sale of land transaction were explained by Uwaifo, JSC in International ile Industries (Nig) Ltd Vs Aderemi (1999) 8 NWLR (Pt.614) 268 at page 299 thus:
“The
37
position of S.22 of the Act is clearly this. A holder of a right of occupancy may enter into an agreement or contract, with a view to alienating his said right of occupancy. To enter into such agreement or contract, he does not need the consent of the Governor. He merely operates within the first stage of a “transfer on sale of an estate in land” which stage ends with the formation of a binding contract of sale constituting an estate contract at the best. But when he comes to embark on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed culminating in vesting the said right in the ‘purchaser’, he must obtain the consent of the Governor to make the transaction valid. If he fails to, then the transaction is null and void under S. 26 of the Act. In my view, it is necessary to bear these two stages clearly in mind.”
In other words, it is not correct to say that failure to obtain the prior consent of the appropriate Local Government Chairman before a deed of assignment is executed means that the assignment is null and void – Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 NWLR
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(Pt.834) 427, Omozeghian Vs Adiarho (2006) 4 NWLR (Pt 969) 33, Brossette Manufacturing Nig. Ltd Vs Messrs Ola Ilemobola Ltd (2007) 14 NWLR (Pt 1053) 109, Mohammed Vs Abdulkadir (2008) 4 NWLR (Pt.1076) 111, Indeed, there must be a valid and subsisting contract for alienation of a right of occupancy in existence before the question of obtaining the consent of the appropriate Local Government Chairman to the transaction can arise – Dahiru Vs Kamale (2005) 9 NWLR (Pt.929) 8, Pharmatek Industrial Projects Ltd Vs Trade Bank Nigeria Plc (2009) 13 NWLR (Pt.1159) 577. These two stages in a land transaction were recognized by the parties in the preparation of the Sale Agreement, Exhibit 1, and they stated clearly in clause 5 thereof that:
“The sale is subject to the Governor’s consent being granted to the assignment to the purchaser of the residue of the Vendor’s term in the land the subject matter of this agreement.”
Thus, the Sale Agreement, Exhibit 1, was not null and void by virtue of the fact that the parties were yet to obtain the consent of the appropriate Local Government Chairman and/or of the Governor of Kaduna State to the transaction and it is
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irrelevant that the document was executed in 1991 because there is no time limit to the obtaining of consent to a transaction – Pharmatek Industrial Projects Ltd Vs Trade Bank Nigeria Plc (2009) 13 NWLR (Pt.1159) 577. The Sale Agreement, Exhibit 1, was thus properly admitted and relied on by the Lower Court in assessing the case of the Respondent.
The Respondent did not end his case with the tendering of the Sale Agreement. The Respondent went further to establish the root of title of his vendor, Alhaii Ahmed Mohammed Goni. This is in fulfillment of the principle of land litigation that says that where a party bases his title on purchase from or grant by a particular person, family or community, that party must go further to plead and prove the origin of the title of that particular person or family or community unless the title has been admitted – Inko-Tariah vs Goodhead (1997) 4 NWLR (Pt.500) 453, Ekpechi vs Owhonda (1998) 3 NWLR (Pt.543) 618, Ugoji vs Onukogu (2005) 16 NWLR (Pt.950) 97, Yusuf vs Adegoke (2007) 11 NWLR (Pt.1045) 332, Fatoyinbo vs Osadeyi (2009) 16 NWLR (Pt 1163) 605, Nwofor vs Obietuna (2011) 1 NWLR (Pt.1227) 205. This is an off-shoot of
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the general principle that where in a claim for declaration of title, the claimant relies on derivative title, he must not only plead and prove how he derived his title, but also the title of the person from whom he claims to have derived title – Uche vs Eke (1998) 9 NWLR (Pt.564) 24, Ngene vs Igbo (2000) 4 NWLR (Pt 651) 131.
It was his case on the pleadings that the land in dispute was covered by a certificate of occupancy No CK/A /000616 registered as No 716 at Page 616 in Volume 1 of the Register of Deeds in the office of the Secretary to Chikun Local Government, Kujama and he led evidence that the land was allocated to his vendor by the Chikun Local Government for farming and mining purposes and that certificate of occupancy, which was tendered as Exhibit 3, was issued in favour of his vendor over the parcel of land by the Chikun Local Government. The certificate of occupancy was tendered without objection by the Appellants and no evidence was led by the Appellants to challenge or question its authenticity. It showed that it was granted to cover the parcel of land in dispute described as farmland measuring 19.96 hectares or 49 acres and depicted on the
41
sketch map attached thereto.
The certificate of occupancy, Exhibit 3, was issued on the 19th of April, 1990 and it was certified as a true copy from the office of the Secretary to the Chikun Local Government Area and it was tendered in evidence before the Lower Court on the 5th of April, 2012, over twenty years after it was issued. It is settled law that where the document of title is aged twenty years or more at the date it is given in evidence and it is produced from proper custody i.e. an original copy or a certified true copy from the Lands Registry, it enjoys a presumption under the provisions of Section 155 of the Evidence Act that it was duly executed and attested by the persons by whom it purports to be executed and attested – Agbonifo Vs Aiwereoba (1988) 1 NWLR (Pt.70) 325 at 341, Cardoso vs Daniel (1986) 2 NWLR (Pt.20) 1, Obawole Vs Williams (1996) 10 NWLR (Pt.477) 146 at 169, Nsiegbe vs Mgbemena (2007) 10 NWLR (Pt.1042) 364, Bassey vs Pamol (Nig) Ltd (2009) 6 NWLR (Pt.1136) 36, Asuquo Vs Asuquo (2009) 16 NWLR (Pt 1167) 225.The certificate of occupancy, Exhibit 3, also showed on its face that it was registered as No. 716 at Page 616 in Volume 1 of
42
the Register of Deeds in the office of the Secretary to Chikun Local Government. The law is that where the document of title is shown to have been registered in accordance with the provisions of the Land Instruments Registration Law of the State, due execution is presumed – Jules Vs Ajani (1980) 5-7 SC 96, Tewogbade vs Obadina (1994) 4 NWLR (Pt 338) 326, Adelaja vs Alade (1999) 6 NWLR (Pt.608) 544, Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt.1057) 218. Thus, for all intents and purposes, the certificate of occupancy possessed by the vendor of the Respondent over the land in dispute is genuine and authentic.
Counsel to the Appellants contested the probative value of the certificate of occupancy in view of the facts that the original letter by which the land in dispute was allocated to the vendor of the Respondent was not tendered in evidence and that the property file of the land in the office of the Secretary to Chikun Local Government was not also tendered. It must be stated that the Respondent did plead or?rely on the either the original letter by which the land in dispute was allocated to the vendor and for the property file of the land in the office of
43
the Secretary to Chikun Local Government in asserting his claim of ownership of the land either in his pleadings or in the evidence he led. Further, there is a principle in the law of estates called the doctrine of merger of estates. It postulates that that where a person takes or acquires an estate of a higher nature in legal valuation than one he already possesses, the person merges and extinguishes his legal remedies upon the inferior estate and the inferior estate ceases to be of any relevance. In other words, where for example a person holds a yearly tenancy in a property and subsequently acquires a lease for a term of years in the same property, the yearly tenancy merges into the lease which is an estate of higher valuation and ceases to exist – Kodesoh Vs Ato (1972) All NLR 394 and Owoniboys Technical Services Ltd Vs Union Bank of Nigeria Plc (2003) 15 NWLR (Pt 844) 545. Thus, with the issuance of the certificate of occupancy in favour of the vendor of the Respondent, whatever interest that the original letter of allocation of the land conveyed to him merged into the legal estate created by the certificate of occupancy and the letter of allocation
44
ceased to be of any use or importance in defining the interest of the vendor of the Respondent in the land in dispute. The non-tendering of the original letter of allocation of land and/or the property file of the land in the office of the Secretary to Chikun Local Government was thus of no moment in this matter.
It is trite law that by the provisions of Sections 5 and 6 of the Land Use Act, once the Governor or the appropriate Local Government Chairman has granted a right of occupancy over a parcel of land, within the area of his authority, all existing rights to the use and occupation of the land which is the subject of the right of occupancy shall be extinguished – Abioye Vs Yakubu (1990) 5 NWLR (Pt 190) 130, Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 219, Gankon Vs Ugochukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt. 297) 55, Ohenhen Vs Uhumuavbi (1995) 6 NWLR (Pt 401) 303, Lang Vs Mohammed (2001) 3 NWLR pt 700) 359, General Cotton Mills Ltd Vs Travellers Palace Hotel Ltd (2006) 10 NWLR (Pt.989) 502.
A certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in
45
respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy then the Court can revoke it – Haruna Vs Ojukwu (1991) 7 NWLR (Pt.202) 207, Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, Ezeanah Vs Attah (2004) 7 NWLR (Pt 873) 468, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt.992) 530, Madu vs Madu (2008) 6 NWLR (Pt.1083) 296, Omiyale Vs Macaulay (2009) 7 NWLR (Pt.1141) 597.
The certificate of occupancy, Exhibit 3, in the absence of any rebutting evidence, supported the Respondent’s case of ownership of the land in dispute. The Lower Court was thus correct when it found that the Respondent made out a credible case of the ownership of the land in dispute on the strength of the Sale Agreement, Exhibit 1, and of the certificate of occupancy, Exhibit 3. The onus thus shifted to the Appellants to make out a better case of title to
46
the land in dispute than the Respondent. In an action for declaration of title to land where the claimant traces his root of title to one whose title to ownership has been established or where he establishes original title to the land, the onus shifts to the defendant to show that his own possession is of such a nature as to oust that of the original owner – Thomas Vs Holder (1946) 12 WACA 78, Isiba Vs Hanson (1968) NMLR 76, Awomuti Vs Salami (1978) 3 SC 105, Sanyaolu Vs Coker (1983) 1 SCNLR 161, Dosunmu vs Joto (1987) 4 NWLR (Pt 65) 297, Agbenifo vs Aiwerioba (1988) 1 NWLR (Pt.70) 325, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt.109) 352.
The Appellants relied on evidence of traditional history in proof of their title to the land in dispute. It was their case on the pleadings that the farmland in dispute was first settled upon by their grandfather called Muko Makama, over one hundred years ago and he was later joined by his brother called Yero and that the two of them migrated from a place called Kan Rafi to settle?on the farm land in dispute and that these two people were later joined by their other Gbagyi brothers, the Sauri Kawo family, Zam Makeri family,
47
Bagudu family, Kaura Nukacha family and Yahaya Mwa family and that all these people cleared and settled on the large span of farmland. It was their case that they were descendants of Nuku Makama, Sauri Kawo, Zam Makeri and Bagudu Zarmai and that they were born on the farmland in dispute and that their grandparents chose the farmland for settlement because of a large rock located on the land and which they used to hide themselves during the slave trade.
Counsel to the Appellants contended that the Respondent did not file a defence to their case on the counterclaim and he sought to make a big deal of this dereliction on the part of the Respondent. Counsel obviously forgot that in an action for ownership of land, the onus on the claimant is the same even where the claim for title is made by a counterclaim. The Appellants were the claimants on the counterclaim while the Respondent was the defendant and the onus was on the Appellants to prove their title on the counterclaim and until this was done no burden shifted to the Respondent and if the Appellants fail to establish their link with the disputed land, they have failed to discharge the burden of proof
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placed on them. The law is that there was no burden on the Respondent on the counterclaim – Oransaye Vs Osula (1976) 6 SC 21, Olusanmi Vs Oshasona (1992) 6 NWLR (Pt.245) 22, Awofolaju Vs Adedoyin (1992) 8 NWLR (Pt.260) 492, Obawole vs Williams (1996) 10 NWLR (Pt.477) 146, Gbadamosi vs Dairo (2001) 6 NWLR (Pt.708) 137, Nsefik vs Muna (2007) 10 NWLR (Pt.1043) 502 and Balogun Vs Yusuff (2010) 9 NWLR (Pt 1200) 515, Obi Vs Onyemelukwe (2011) 1 NWLR Pt (1228) 400. The failure of the Respondent to file a defence to the counterclaim was thus irrelevant. This point was explained in Okhuarobo Vs Aigbe (2002) 9 NWLR (Pt.771) 29, by Onu, JSC at page 53 E-H thus:
?The above is a definite finding of fact on the part of the trial Court in the face of which, speaking for myself, the defendants’ counterclaim for title to the property cannot be sustained having regard to their alleged root of title which they were unable to establish. No doubt, it would appear that there was no defence filed in reply to the defendants’ counterclaim. This, however, is neither here nor there as the onus is as much on the defendants in their counterclaim as on the plaintiff in the main
49
claim to establish their counterclaim in respect of title, trespass and injunction therein claimed. This onus they must, to succeed, discharge to the satisfaction of then Court and on the evidence brought by them. In this regard, as already pointed out, the defendants, as plaintiffs in the counterclaim, must rely on the strength of their case and not on the weakness of the case of the plaintiff. If this onus is not discharged, the proper judgment will be against them’”
Going to the case of the Appellants on the counterclaim, it is settled law that party relying on evidence of traditional history as his root of title for claiming ownership of land must plead and prove (i) who founded the land in dispute and exercised original acts of possession; (ii) in what manner the land was founded; and (iii) the successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained and history must show how the land by a system eventually came to be owned by the party – Akinloye Vs Eyilola (1968) NMLR 92 at 95, Piaro Vs Tenalo (1976) 12 SC 31, Total (Nig) Ltd Vs Nwako (1978) 5 SC 1 at 12,
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Elias Vs Omo-Bare (1982) 5 SC 25 at 57-58, Kalio Vs Woluchem (1935) 1 NWLR Pt 4) 572 at 628, Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt 979) 382, Okoko Vs Dakolo (2006) 14 NWLR (Pt.1000) 401, Okegbemi Vs Akintola (2008) 4 NWLR (Pt 1076) 53.
What is required in the pleading of traditional history are the origin of the ownership claim to the land in dispute and the averments showing a chain of the devolution of the land through successive ancestors without leaving any unexplained gaps in the line of the successors. A claimant who relies on evidence of traditional history as proof of title must aver in his statement of claim seriatim the genealogical tree or line of succession of the family from the cradle of its founding fathers to him and he must also lead admissible evidence in vindication or proof of the statement of claim. Unless he performs these twin procedural functions, his action is bound to fail. In other words, the pleadings of the devolution and the evidence in support must be reliable and credible otherwise the claim would fail – Nkoko Vs Akpaka (2000) 7 NWLR (Pt.664) 225, Oloshe Vs Ogunbode (2002) 1 NWLR (Pt.749) 611, Osuji Vs Ogualaji
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(2002) 16 NWLR (Pt.792) 136, Ibikunle vs Lawani (2007) 3 NWLR (Pt.1022) 580, Nwakorobia Vs Nwogu (2009) 10 NWLR (Pt 1150) 553, Balogun Vs Yusuf (2010) 9 NWLR (Pt 1200) 515.
In the instant case, the Appellants did not plead averments showing a chain of the devolution of the land through successive ancestors to each of them without leaving any unexplained gaps in the line of the successors. They did not aver in their pleading facts showing seriatim the genealogical tree or line of succession of the family from the cradle of its founding fathers to each of them. Also, out of the four Appellants, only the fourth Appellant testified as the third defence witness. The other two witnesses Bawa Kajere and Bawa Bagudu were not parties in the case and none of the three defence witnesses gave evidence of the relationship of the first to the third Appellants to the land in dispute.
Further, the unique feature of traditional history is that it is evidence of historical fact transmitted from generation to generation in respect of family communal land or chieftaincy. It is evidence as to rights alleged to have existed beyond the time of living memory. It is history
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of yore of which no living person can give an eye-witness account. Evidence in respect of history handed down from generation to generation by word of mouth as hearsay. It is given by witnesses who, by their close association, interaction or special relationship with the land-owning family are knowledgeable enough to give cogent and relevant traditional evidence in respect of ownership of the land – Igbojimadu Vs Ibeabuchi (1998) 1 NWLR (Pt.533) 179, Adisa Vs Oyinwola (2000) 10 NWLR (Pt.674) 116, Oyekola Vs Ajibade (2004) 17 NWLR (Pt.902) 356. The point was explained by the Court of Appeal in Irawo Vs Adedokun (2005) 1 NWLR (Pt.906) 199 at page 213 A-E thus:
“Traditional history or traditional evidence is by its nature hearsay evidence. Indeed, it is hearsay upon hearsay in the sense that it recounts the events which had occurred long ago, and the history of which has been handed down from one generation to another generation in an unbroken chain reaching the present generation. Such hearsay story or evidence is often beyond living memory. …………….
Implicit in the above explanation is the fact that more often than not the rights which parties seek to
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establish by traditional evidence are such as had existed beyond living memory. It is therefore appreciated that witnesses who are called upon to adduce traditional evidence would not give an eye-witness account. This category of witnesses cannot speak from their personal knowledge. They only repeat the story which their ancestors had passed down to them. When it is realized that much of our past in this part of the world is practically unrecorded, then the reason why our legal system permits the admissibility of such evidence is not far fetched.”
What these mean is that any person giving evidence of traditional history of a family or community, be it his family or community or not, cannot speak from personal knowledge or give an eye witness account. He must state the source of his knowledge of the history, whether it was told to him by his father or by his grandfather or by someone who had a connection with that family or community, for it to have a ring of authenticity.
None of the three defence witnesses offered that information either in their written depositions or under cross-examination. In fact the three defence witness stated under
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cross-examination that the traditional history they each related was not told to them by anybody. In other words, the defence witnesses stated that they spoke from personal knowledge and rendered eye witness accounts of events that occurred long before they were born. None of them gave evidence that he reincarnated and that he learnt the traditional history in his first life, before he died and was reborn. The witnesses did not state the source of the traditional history they rendered and thus their evidence of traditional history cannot be reliable and credible. The case of the Appellants predicated on evidence traditional history must fail.
It is correct, as pointed out by Counsel to the Appellants, that the Appellants also pleaded and led evidence on acts of possession that they said that their ancestors and themselves exercised on the land in dispute, and evidence of which were still visible on the farmland today such as desolate houses built on the farmland by their grandparents, pieces of broken pots used by their mothers and wives as well as broken farming tools and grave yards used to bury their young and old. It is settled in land litigation
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that where a claimant pleads a primary method of establishing title, such as, traditional history or documents of title, and he also pleads acts of ownership and possession which are dependent on that main method of establishing title, he cannot succeed if he fails to prove that main method of establishing title to land. In such a case, the acts of possession and ownership are done because, and in pursuance, of the ownership. Such alleged acts of possession, dominion and the like are merely derivative from the title or ownership of the land in dispute; ownership forms the quo warranto of these acts as it gives legality to the acts of possession and ownership which would otherwise have been acts of trespass – Odofin vs Ayoola (1984) 11 SC 72, Ogungbemi vs Asamu (1986) 3 NWLR (Pt.27) 161, Fasoro vs Beyioku (1988) 2 NWLR (Pt 76) 263, Adisa vs Oyinwola (2000) 10 NWLR (Pt.674) 116, Irolo Vs Uka (2002) 14 NWLR (Pt.786) 195, Elegushi vs Oseni (2005) 14 NWLR (Pt.945) 348. In Lawal vs Olufowobi (1996) 10 NWLR (Pt.477) 177, Belgore, JSC put the point thus at Page 188 A-B:
“The root of title, in cases like the one now on appeal, once pleaded as raison d’etre
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for the presence of the Person pleading must be proved to the satisfaction of the Court. Because if the root of title depended upon is defective or remains unproved, the possession claimed is illusory and it may in the end be an act of trespass. The appellants failed to prove their root of title, their traditional history on the land having failed to hold any water. Thus if the pleaded root of title is not established by evidence as is the case here it is a futile exercise to go into the issue of possession or acts of ownership.”
No amount of use or the length of period of usage could confer ownership of land on such a user and it behoves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same – Registered Trustees of the Apostolic Faith Mission vs James (1987) 3 NWLR (Pt 61) 556, Nwaeseh vs. Nwaeseh (2000) 3 NWLR (Pt.649) 391, Yusuf Vs Adegoke (200l) 11 NWLR (Pt.1045) 332, Olubodun vs Lawal (2008) 17 NWLR (Pt.1115) 1. Thus, acts of ownership and possession can only properly be considered where the root of title
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is pleaded and established by cogent and convincing evidence – Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt.1196) 307, Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404, Gbadamosi Vs Okege (2011) 3 NWLR (Pt.1233) 175, Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt.1525) 339.
The acts of possession alleged by the Appellants did not thus advance their claim of ownership of the land in dispute one jot. The complaint of the counsel to the Appellants on the failure of the Lower Court to accede to the request of Counsel to visit the locus in quo is thus of no significance. What is obvious from the above is that the Appellants did not make out a better case of title to the land in dispute than the Respondent. This Court cannot thus fault the decision of the Lower Court upholding the claims of the Respondent and dismissing the counterclaim of the Appellants. The decision was on very firm ground.
In conclusion, this Court finds that this appeal is lacking in merit and it is hereby dismissed. The judgment of the High Court of Kaduna State in Suit No KDH/KAD/812/2011 delivered by Honorable Justice Abiriyi (as he then was) on the 28th of June, 2012 is hereby affirmed. The
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Respondent is entitled to the cost of this appeal assessed in the sum of N50,000.00. These shall be the orders of this Court.
Other Citations: (2016)LCN/8620(CA)
