Abdulmalik M. Gidado v. Alh. Ibrahim Lawan (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, JCA (Delivering the leading judgment)

Appellant filed this appeal against the judgment of Adamawa State High Court in suit No. ADSY/111/2022, delivered on 4th June, 2023, by Hon. Justice F. D. Nzarga, whereof the learned trial Judge dismissed the claim of the plaintiff, saying that he failed to discharge the burden of proof, that the land in dispute had not been sold by his lawful Attorney; and that the land was different from the land defendant was in possession of, by virtue of exhibits G, H, I; as the land in dispute fell within the land covered by the defendant’s Customary Certificate (exhibit H), contrary the pleading of the plaintiff. (See page 271 of the records of appeal).

At the trial court, appellant, as plaintiff, had sought the following reliefs:

1. A declaration of title to that portion of land measuring about 100 x 100 curved out of the entire land, covered by the writ of possession, dated 23/5/2022 issued by the Yola civil area court, being product of civil case No cv/40/98 to the plaintiff and his siblings.
2. A declaration that the acts of the defendant amount to trespass and same is a calculated attempt to deface the land, annoy the plaintiff and at the end take it over unjustifiable.
3. A declaration that the cutting of the historic and economic tress amounts to malicious destruction and same entitles the plaintiff to sum of N2,000,000 only a specific damages.
4. An award of as general damages for the unjustifiable acts of trespass and malicious destruction of property by the defendant.
5. An order of perpetual injunction restraining the defendant either by himself, his agent, his heirs and assigns from further trespassing to the land.
6. N200,000 as cost of litigation. Pages 252 to 253 of the records of appeal.

(See pages 252 – 253 of the records)

The respondent, as defendant, filed a defence and denied the claim, but in paragraphs 4 and 5 of his evidence in chief, admitted and affirmed the appellants original title, but asserted that the disputed land was sold to one, Mohammed Abdulhameed (Hammadu) by Ibrahim Bakari (PW2), though the latter vehemently denied selling the disputed land to anybody, and worst still, to respondent; counsel said that respondent did not lead any evidence (document) to prove the assertion of sale.

Appellant therefore said that the subsequent sale agreement, between Mohammed Abdulhameed and Bashir El-wan (exhibit G) was in total contradiction with the pleadings of the respondents, particularly, with regard to the location, size and mode of the alleged acquisition of the disputed land.

The plaintiff had called three witnesses to prove his claim and the defendant, three witnesses, too. After hearing the case and considering the evidence and addresses of counsel, the trial Judge held, on pages 269 to 271, as follows:

It is my decision the plaintiff has failed to adduce credible evidence in prove of his case to show his lawful Attorney PW 2 has no power to sell the entire land entrusted to him including the land in dispute, this has not been done as the plaintiff himself admitted authorizing the lawful Attorney to sale the land on his behalf which he has no record of the purchasers and could not identify the land subject of dispute both on cross examination and in the course of visit to locus in quo, the plaintiff cannot sought to rely on the defendant weakness, the onus lies on the plaintiff who seek a declaration of title to land to establish by credible evidence that he is entitled to such relief and he must rely on the strength of his own case and not on the of the defendant, this is the principle in the case of Adekunle v. Ibru (2021) 2 NWLR (Pt. 1759) 77- 78 para. G-A.

On the issue of contradiction parties argued in their written address, the plaintiff at paragraph 5 of the amended statement of claim stated, he took over the custody of the land via writ of possession no 15 dated 6th march, 2013, at the same time tendered writ of possession exhibit B1, B2 dated 23 May 2019, while also terminating power of attorney on the 24 December 2014 over the land possession was given to him in 2019 via exhibit B1, B2, this manifest contradiction is not only incurable but also not worthy of believe such contradiction has the effect of not attaching any value to the document.

I find it difficult saddling with which of the evidence of the plaintiff to believe or disbelieve as I cannot choose one version and discard the other, how possible can the plaintiff terminate the power of attorney in 2014 exhibit C while PW2 the lawful Attorney is using the writ of possession issued in 2019 exhibit B1, B2 in selling the land for the principal, l hereby reject this evidence as is manifestly contradictory, I rely on principle in the case of Salami v. Gbadoolu (1997) 4 NWLR (Pt. 499) 277.

The plaintiff’s deficiency in establishing the identity of the land in dispute which he is claiming can be seen in the course of the cross examination where he displayed lacked of knowledge of the disputed land I have reproduced it above, worse at the visit to locus in quo the same thing, PW2 the lawful Attorney as well could not show the demarcation of the land in dispute which he gave evidence in prove.

It is clearly established long before now by the apex court, where a party claims an interest in land, the exact location of the land and its size must be proved by the claimant. The duty on the claimant to show the exact area of land in dispute is paramount and important an no court will grant a declaration to an unidentified area, declaration of title to a land can only be granted in respect of a piece of land with definite precise and accurate boundaries. See the case of Ebele v. Wizor (2021) 2 NWLR (Pt. 1761) 579 para. F -H.

Finally, I hereby dismiss the plaintiff’s case for lacking in merit having failed to discharge the burden of proof of the land in dispute has not been sold by his lawful Attorney and the land is different from the land defendant is in possession by virtue of exhibit G, H, It as the land in dispute fall within the land covered by the defendant customary certificate exhibit H, contrary to the pleading of the plaintiff.

That is the judgment appellant appealed against, as per the notice and grounds of appeal, filed on 5/7/2023 (pages 274 to 276 of the records of appeal), with four grounds of appeal. The appellant filed brief of arguments on 28/11/2023 and distilled four issues for the determination of the appeal, as follows: