Alhaji Abdulkadir Dan Mainagge V Alhaji Abdulkadir Isiaku Gwamna (2004)

LAWGLOBAL HUB Lead Judgment Report

PATS-ACHOLONU, JSC 

The appellant in this case who was a defendant in the high court has appealed to this court against the judgment of the Court of Appeal which confirmed the judgment of the High Court. The respondent as a plaintiff had instituted an action against the appellant claiming as follows:

(a) An order of the Court to declare that the house with certificate of occupancy No. NE/1647 situate at G.R.A. Gombe, that the plaintiff is the bonafide owner or has title over the said house.

(b) An order of the Court ejecting all the defendants from the said house.

(c) Payment of the cost of this action dated this 3rd day of February 1992.

His case is that he bought a property from the appellant who had bought from one Dalandi Muazu and who purchased from the original lessee Alhaji Sale Tango who was granted the certificate of occupancy in respect of that property which was transferred to him by the appellant. It was his case that he asked the appellant to contact Alhaji Sale Tango to apply to the Governor for consent for the certificate of occupancy to be made in his favour which the appellant agreed and which the Governor gave his consent. Pursuant there-to a Deed of assignment was prepared and signed and the same was duly registered in the lands Registry. The appellant denied ever having sold his land to the respondent claiming that before he traveled on a pilgrimage to Saudi Arabia the respondent had given him the sale agreement of the land in dispute in order to obtain the certificate of occupancy. It was his case that he could not possibly resell the property he bought for N75,000.00 for N60,000.00. The appellant further counter-claimed and urged the court to declare that the consent obtained from the Governor was fraudulent and is null and void and that the Deed of assignment dated 30th October 1986 should be declared null and void. He prayed the court to further declare that the property covered by the certificate of occupancy No. NE/1647 is his property.

In the High Court, judgment was given to the respondent and on appeal, the Court of Appeal confirmed the judgment of the High Court. Not satisfied with the judgment of the Court of Appeal the appellant appealed to this Court and filed 2 grounds of appeal. The appellant had identified only one issue for consideration by this Court which is;

“Whether on the totality of the evidence on record before the lower Court, the respondent has proved his claim against the appellant to warrant the dismissal of the appellant’s appeal”.

The respondent on the other hand formulated the same issue as the appellant. The kernel of the appellant’s case is that though he did not testify in the High Court the success of the respondent’s case should be on the strength of the case he was able to make and not on the weakness of the defence case and he cited Mrs. Hawa Gankon vs. Ugochukwu Chemical Industrial Ltd (1993) 6 SCNJ (Pt. 1) pg 263 at 279. He further submitted that where the radical owner of the property is not in dispute the burden on the party alleging change of ownership is on the person claiming the land and cited Lamid Lawal Obawole and Anor vs. Olusoji Okere (1994) 6 SCNJ pg 20. He referred to what he described as contradictions in the evidence of the respondent which he submitted showed that he the appellant had equitable title over the land in dispute and he submitted further that there is evidence that all the documents referred to by the respondent were not registered. He argued fervently that the documents being unregistered are therefore not admissible in evidence to prove or establish title. He cited Tewogbade vs. Obadina (1994) 4 SCNJ (Pt. 1) pg. 161 at 186. He urged the Court to hold that the Governor’s consent and the subsequent registration of the Deed of assignment were procured by deceit and misrepresentation and are therefore of no value.

The respondent replicando submitted that the appellant called (two) witnesses in the matter in which he asked for a declaratory relief in his counter-claim but he himself did not testify. He further submitted that his testimony has shown that he discharged the onus of proof on him, to wit, by exhibiting the title or ownership of the land over which he claims viz, the Certificate of Occupancy No. NE/1647, which he claimed the appellant voluntarily surrendered to him. He further referred to the sale contract between him and the appellant Exhibit 1 the Deed of the assignment executed between the parties, and the consent of the Bauchi State Governor authorizing the assignment to him. He submitted that the appellant failed or refused to give evidence to challenge the facts he averred in his pleadings particularly in the counter-claim.

The trial Court had in its judgment referred to the concession made by the appellant’s counsel in his judgment when he stated;

“Addressing this court on 14/6/94 Magaji K. Esq. for the 1st defendant told the Court that the 1st defendant who could not testify called 2 witnesses but after a careful review of the evidence and in the absence of the 1st defendant, he was of the view that the defence is porous. As a minister in the Temple of Justice, he had not alternative but to submit to judgment as the evidence before the Court does not give room for any meaningful argument in favour of the defendants. He therefore on behalf of the defendant submitted to judgment”.

Further below the Court stated;

“This is clearly a straight forward case. Although the 1st defendant now the only defendant, (the 2nd to the 6th defendants having been struck off the case at the instance of the plaintiff on 30/6/92) was duly served, entered his appearance and even filed his statement of defence and counter claim, he appeared twice during the hearing of this suit before disappearing into thin air, he did not testify for himself to support his pleadings or prove his counter claim. Counter-claim is therefore deemed to have been abandoned and is therefore dismissed against the plaintiff and the 2 defendants to the said counter claim”.