In the Court of Appeal
In the Jos Judicial Division
Holden at Jos
On Wednesday, 19th February, 2020
Suit No: CA/J/375/2017
Before their Lordships:
Adzira Gana Mshelia, jca
Mudashiru Nasiru Oniyangi, jca
Boloukuromo Moses ugo, jca
Between
Alhaji Hassan Modu Goba – Appellant(s)
And
Musa Algoni – Respondent(s)
Lead judgment delivered by Mudashiru Nasiru Oniyangi, j.c.a.
Facts of the case
The Respondent who was the plaintiff before the High Court claimed to have purchased plots of land at a place described as Alidawari village in Jere Local Government Area of Borno State in 2003 and 2004 at a cost of N20,000.00 and N40,000.00 respectively from Alhaji Audu. He claimed to have farmed on the land for five years.
Afterwards, he gave the land to Lawan Musa to farm on it. Musa used it for two years and handed back the land to him. When insurgency broke out in Borno State, he left the land because he could no longer farm on it till when relative peace returned.
He started clearing the land and he noticed the appellant trespassing by demarcating the land and dividing it into various plots. He challenged the Appellant and when he noticed that the Appellant would not yield and leave the land and was insisting that he inherited the land from his father, the Respondent approached the High Court of Borno State claiming some reliefs.
The High Court entered judgment in favour of the Respondent/Plaintiff. Miffed by the outcome of decision, the Appellant appealed to the Court of Appeal.
Issues for determination
The Court determined the appeal on a sole issue as follows:
“Whether or not the Respondent has proved his title to the disputed land and whether the learned trial judge has properly evaluated the evidence adduced before coming into the conclusion reached.”
Appellant’s submission
The submission of the Appellant is that the claim of the Respondent before the trial Court was based on ownership by way of sale and that in a declaration of title to land, the duty is squarely on the Respondent as claimant to discharge the burden of proof placed on him.
He relied on NIkabatse vs Opuye (2010) 14 NWLR (PT. 1213) 51 at 62 – 63 and Kodilinye vs Odu (1935) 3 WACA 336 and contended that in identifying the land, the Respondent pleaded that the land is situate at Alidawari but Exhibit PW1 A and PW1B shows that the land is in Maina Bukarti and Femari. By this he submitted that the Respondent has not identified the land he is claiming.
The Appellant submitted that the case of the Respondent ought to have been dismissed but rather the Court made a U-turn and relied on evidence of traditional history.
He submitted that there is no issue or claim of declaration of title based on traditional history of the case of the Respondent that he purchased the land in dispute.
According to him, for traditional history to suffice, the claimant must narrate the genealogical tree from the original owner, the ancestor, in generation’s appurtenance to his, down the line to the plaintiff.
On whether the Respondent has identified the land in dispute, he submitted that in a claim of declaration of title to land, the claimant is to prove the area being claimed so that the land can be identified with reasonable certainty in two basic ways:
1) To establish title through one of the five (5) known ways of establishing title.
2) To define an area to which the declaration can be attached.
It was submitted that the Respondent’s plan was expunged from record and rightfully so. That the description given by the Respondent bore no semblance with the plan. The Respondent said he bought the land but did not say that the two plots were merged and therefore, leaving the Court with whether to speculate or not.
According to him, speculation is not the function of a court of law, courts deal with hard credible evidence. He relied on the case OWE V. OSHINBAJO (1965) 1 ALL NLR 72 at 75; (1965) LPELR-25236(SC) and urged the court to allow the appeal.
Respondent’s submission
The submission of the respondent is that traditional title of the identity of the land was established to be his as he proved the origination of the land from Bulama Kachala who sold the land to Alhaji Audu, who also sold same to Musa from whom he acquired title and this evidence was not contradicted.
On issue of the identity of the land, he referred to the testimony of the defendant as PW1 before the trial court that he bought the land in 2003 – 2004 and how he farmed on the land for five years before he gave it to Lawan Musa who also farmed on it for two years and also to Suleimanti who also farmed on the land.
He added that the amount he purchased the land remain unchallenged. He submitted that the appellant who claimed that the land belonged to his father did not establish how the land was purchased by his father. Rather the respondent as claimant before the trial court established the source of his ownership and the particulars and names of successive owners.
He submitted that most of the evidence of the appellant before the trial court did not support his defence hence the defence goes to no issue. He submitted that where there is a conflict of traditional history, the best way to test the traditional history is by reference to acts in recent years as established by evidence and by seeing which of the two completing histories is more probable. He referred to the case of Erinle and ors vs Aluko and ORS (2013) LPELR-22157(CA).
Resolution of issue
In resolving the issues, the court stated the law that in a claim for a declaration of title to land, the standard of proof required of the plaintiff is on a balance of probabilities relying on Aderemi vs Aderibe (1960) N.M.C.R 400 at 402 amongst others.
It is also the law that in a claim for declaration of title, the plaintiff must succeed on the strength of its own case and not on the weakness of the defence even though any evidence adduced by the defence which is favourable to the plaintiff’s case will go to strengthen the case for the plaintiff. The court relied on Rabiatu Adebayo And Ors vs Rasheed Shogo (2005)7 NWLR (PT.925) 467, amongst others.
The court proceeded to resolve whether or not the respondent as plaintiff before the trial court established his claim. The court made recourse to the evidence by the respondent before the trial Court and stated that the evidence of the respondent was not debunked by the appellant.
Therefore, it is trite that unchallenged and uncontradicted evidence should be accepted and acted upon by the court. The court went on to state the ways that ownership of land may be proved relying on IDUNDUN V. OKUMAGBA (1976) 9 AND 10 SC 277; , at 246 – 250; (1976) LPELR-1431(SC) and SUNDAY PAIRO V. CHIEF TENALO AND ORS (1976) 12 SC 31 at 41 – 43, amongst others.
That the case of the Respondent that he purchased the land for N20,000.00 and N40,000.00 respectively created an equitable interest. This is because of the payment of purchase price coupled with being in possession. The court observed that there is an unchallenged evidence of the respondent that he purchased the land from a named person and for a disclosed amount of money, unlike the evidence of the appellant which is that his father never told him that he purchased any land, but it was one Bazanna who showed the land to him in 1993 or 1994 after the demise of his father.
According to the court, these pieces of evidence suggests that the fact relied upon by the appellant is as related to him by Bazanna, which lies in the domain of hearsay and cannot be relied upon. In view of which the court concluded that the respondent’s evidence before the trial court on ownership of the land in dispute is preponderant.
Also, that the trial court’s reasoning for coming into the conclusion reached is a product of proper evaluation of evidence placed before the trial court and it will not substitute its own view for that of the trial court. The court resolved the sole issue in the respondent’s favour.
Held
On the whole, the court found no merit in the appeal and accordingly dismissed same.
Appearances: J. O. Oroko Godwin Haruna, with him, S. N. Yakubu brief of Habu Waziri -For Appellant T. A. Lengkat holding brief of S. Badagubi – For Respondent Compiled by LawPavilion
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