Adamu V. Nigerian Airforce & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Kaduna Division or Court below or lower Court, Coram: Uwani Musa Abba Aji JCA (as he then was), Oluduton Adebola Adefope-Okojie and Amina Audi Wambai JJCA, delivered on the 16th day of March, 2018 wherein the appeal of the respondents was allowed and the judgment of the trial High Court per D.H. Khobo J., was set aside and the appellant therein was declared the title holder of the property subject of this appeal.
The case of the Appellant as plaintiff before the trial Court is that the title and interest in and over the large expanse of farmland situated and lying at Rugan-Guza, Rigachikun in Igabi Local Government Area of Kaduna State measuring 138.803 hectares (343.00) Acres) covered by Certificate of Occupancy No. 15925 dated 9/6/2005 (Exhibit 4) and more particularly delineated in the approved survey plan no. KD.15925 deposited in the office of the Surveyor General, Ministry of Lands, Surveys and Country Planning, Kaduna State was originally vested in one Abubakar Haruna (now deceased) who acquired same from the customary owners of same. The said Abubakar Haruna in turn sold to the Appellant as evidenced by the Deed of Assignment executed between the said Abubakar Haruna and the Appellant (Exhibit 1) for a consideration of N700,000.00 which was duly perfected by the Appellant.
The Respondents and their subordinates prevented the Appellant from the legitimate exercise of the right of ownership and possession of the said farmland by way of interfering with the Appellant’s right to access to the farmland with a view to carrying out farming activities thereon.
The Appellant tendered Exhibits 1-9 while the Respondents tendered Exhibits 10-24.
The Appellant testified as PW1, One Aminu Tanimu and Idris Adamu as PW2 and PW3 respectively, Mallam Danladi Wada as PW4 and Elias Kantiok (a subpoenaed witness from the Survey Division of the Ministry of Lands, Surveys and Country Planning, Kaduna State) testified as PW5.
On the part of the Respondents, their case was predicated on the fact that the 1st Respondent has been in peaceful and undisturbed possession of the land in dispute since 1962.
The Respondents protested that the said land was allocated to the Ministry of Defence for the 1st Respondent’s use by the then Government of Northern Nigeria through the Northern Nigeria Council Memorandum of 20th – 22nd October, 1962.
It was also their case that at the time the land was allocated to the Ministry of Defence, it was virgin forest with no one farming thereon or in occupation. The Respondents contested that the land and the ownership or interest of the Ministry of Defence has never been divested at any point in time or transferred to any person.
That by the grant of the certificate of occupancy to the appellant, the Ministry of Lands, Kaduna State shut its eyes to the existence of the Northern Nigeria Council Memorandum allocating the land to the respondents.
On the 12th day of October, 2021, date of hearing, learned counsel for the appellant, A, Bashar Esq., adopted the brief of argument filed on 6/2/2020 in which he donated a single issue, viz:
Whether on the state of pleadings and the evidence led by both parties, the learned justices of the Court of Appeal were justified when they held that the appellant failed to prove a valid root of title to the land in dispute?
Learned counsel for the respondents, O.C. Ali Esq., adopted the brief of argument filed on 24/11/2020 and utilized the sole issue formulated by the appellant.
I shall use the said issue in the determination of this appeal.
Whether on the state of the pleadings and the evidence led by both parties, the learned Justices of the Court of Appeal were justified when they held that the appellant failed to prove a valid root of title to the land in dispute.
Referring to the pleadings, learned counsel for the appellant contended that the appellant chose one of the five ways of proving title/ownership of land which is by the production of documents of title which had been duly registered as required by law. He cited Agboola v. UBA PLC (2011) 11 NWLR (pt. 1258) 375 at 400-401 and Ajiboye v Ishola (2006) 13 NWLR (pt. 998) 628 at 652 etc.
That the appellant having traced and established his root of title to his vendor vide Exhibit 1, it was wrong of the Court below to inquire into the title of his predecessor in title and the customary ownership through whom the said predecessor acquired his title to the land in dispute. He referred to Aiyeola v Pedro (2014) 14 NWLR (pt. 1424) 409 at 447.
That the respondents never challenged the validity of the appellant’s predecessor’s root of title at the trial Court.
For the appellant, it was further submitted that the gravamen of the complaint of the respondents at the Court below revolved around the contention of exercising long possession over the land in dispute by virtue of the Northern Nigeria Council Memorandum of 20th – 22nd October, 1962 which was not tendered at the trial Court. That it was wrong for the Court below to raise the issue of traditional evidence suo motu and resolve the issue upon it without the parties addressing it on the question. He referred to Wagbatsoma v FRN (2018) 8 NWLR (pt. 1621) 199 at 128.
Learned counsel for the appellant stated that a judgment obtained against the principle of fair hearing such as the present is a nullity. He cited Kotoye v. Saraki (1994) 7 NWLR (pt. 357) p. 414 etc.
That the finding of the lower Court on possession by the respondents was perverse as it was outside the record. He cited Onwuka Vs. Ononuju (2009) 11 NWLR (pt. 1157) 174 at 201 – 202 etc. Responding, learned counsel for the respondents contended that the matter of traditional evidence was pleaded by the appellant and he referred to the said claim and so he cannot change at this point to denounce that mode of proof. He cited Kode v. Yusuf (2001) 4 NWLR (pt. 703) 393 at 409 etc.
The divergence of the parties have been shown in the summary depicting their positions above. In a nutshell, the appellant contends that he relied on documentary evidence to prove his case and not on traditional history/evidence and that the contrary findings of the trial Court had occasioned a miscarriage of justice. This stance the respondents dispute relying on the pleadings of the appellant and the evidence led.
A recourse to the pleadings would throw light on what the true position in para 4 of the Statement of Claim of the appellant as plaintiff thus:
“4. The plaintiff pleads that the title, right and interest in and over the large expanse of farmland situate and lying at Rugan, Guza-Rigachikun in Igabi Local Government Area measuring 138-803 Hectares (34300 Acres) covered by Certificate of Occupancy No. 15, 925 dated 9/6/2005 registered as No.91 at P.91 in Volume 118 of the Kaduna State Lands Registry Kaduna State (hereinafter called the farmland) issued in favour of the plaintiff was originally vested in one Abubakar Haruna (now deceased) who acquired same from the customary owners of the farmland that have been cultivating same for a long period of time” (Underlining is supplied for emphasis)
Para 7, page 5 of the record of appeal:
“The plaintiff pleads that the customary owners of the land where the farmland is situate are also deemed grantees or holders of a right of occupancy.” (Underlining is supplied for emphasis)
Para 8, pages 5-6 of the record of appeal:
“The plaintiff states that Mallam Abubakar Haruna who acquired the farmland from the customary owners and cultivating same for a long period of time sold the farmland to the plaintiff for a consideration of N700,000.00 as evidenced by the Deed of Assignment executed between the plaintiff and the said Mallam Abubakar Haruna which properly describes the farmland in paragraph (1) of the recital but wrongly described in the schedule thereto duly stamped and registered as No. KDR 129 at page 129 in Volume 126 of the Kaduna State Lands Registry Kaduna. The Deed of Assignment is hereby pleaded.” (Underlining is supplied for emphasis).
Para 11, page 6 of the record of appeal:
“The Plaintiff posits that after full compliance with all the requirements leading to the issuance and execution of a certificate of Certificate of Occupancy, the Governor of Kaduna State granted and issued the plaintiff with a certificate of occupancy No. KD.15925 dated 9/6/2005 registered as No. KD15925 is hereby pleaded.” (Underlining is supplied for emphasis)
It is instructive to state that the Appellant’s endorsement on Writ of Summons shows that he largely depended on traditional evidence to prove his claims. For ease of reference:
“…and more particularly delineated in the approved plan no. KD. 15925 deposited in the office of the Surveys and Country Planning, Kaduna-South, Kaduna State was originally vested in one Abubakar Haruna (now deceased) who acquired same from the customary owners of same.”
It is evident that the appellant had opted for the traditional evidence as the pleadings he deposed to have shown and so he cannot later change from the averments in the pleadings to suit the purpose he wants to project.
Clearly, the appellant had depended on two modes of proving title to land which are, viz:
(a) Traditional history/evidence; and
(b) Documentary evidence.
For the traditional history/evidence, see the underlined words under paragraphs 4, 7, and 8 of the statement of claim reproduced above. For the documentary evidence, see the underlined words in paragraphs 8 and 11 of the statement of claim reproduced above.
Indeed a party is not forbidden from choosing one or more modes/ways of proving title to land, it is obligatory on him to prove whatever way chosen by him upon the preponderance of evidence/balance of probability without leaving the Court in any doubt. I rely on KODE v. YUSUF (2001) 4 NWLR (Pt. 703) 393 at 409 paras F-G S/C, EWO v. ANI (2004) 3 NWLR (Pt. 861) 611 at 638 Paras B-C and 639 paras B-D and MORENIKEJI v. ADEGBOSIN (2003) 8 NWLR (Pt. 823) 612 at 657-658 paras G-E S/C.
It is therefore wrong for the Appellant to argue as he did in his brief of argument that, “It was therefore wrong for the justices of the Court below to place the burden of establishing the root of title of the customary owners of the land in dispute on the Appellant and hold that the appellant failed to prove a valid root of title to the land in dispute”. The cases of AGBOOLA v. U.B.A. PLC (2011) 11 NWLR (Pt.1258) 375 at 400-401, H-C, AJIBOYE v. ISHOLA (2006) 13 NWLR (Pt. 998) 628 at 652 A-F and CHABASAYA v. ANWASI (2010) 10 NWLR (Pt. 1201) 163 AT 188-189 cited by the Appellant at pages 9-11 of his brief of argument are not useful to his case since they rather support the stance of the respondents.
It is now well settled in law that a plaintiff has the duty in an action for declaration of title to land to adduce sufficient evidence and credible evidence to establish the mode of acquisition of his title and the law is that, the said plaintiff must succeed on the strength of his own case and not on the weakness of the defence (if any) although the plaintiff may take advantage of the defendants’ evidence where it supports his case after he might have proved his case as required by law.
The Plaintiff’s claim is for title in respect of a large expanse of farmland situated and lying at Rugan Guzu-Rigachikum in Igabi Local Government Area of Kaduna State measuring 138.803 Hectares (343.00 Acres) covered by Certificate of Occupancy No. 15925, dated 9/6/2005 registered as No. 91 at page 91, which was admitted in evidence as Exhibit 4. In the case of ALHAJI J. AROMIRE & 2 ORS v. J.J. AWOYEMI (1992) 2 S.C. 1 at 11, this Court held that:
“The learned trial judge rejected the defendant’s case and passed severe strictures on the defendant’s witnesses and their conduct but with respect, a consideration of the defendant’s case and the weakness of it did not arise until the plaintiff had led evidence showing, prima facie, that she had a title to the land. She had failed to do this and it is inconceivable that she should be allowed to succeed on her claims when, as indeed it is, the defendant is in possession and maintains that he is entitled to so remain. If it be alleged that someone in possession of land is a trespasser the person so alleging had the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party. Such is the case here and we are of the view that the plaintiff’s case had failed and it should have been dismissed.”
Furthermore, it should be noted that the reliefs (a) and (b) of the Respondents are declaratory in nature. It is trite law that declaratory reliefs are not granted as a matter of course, the claimant (Appellant in this case) must satisfy the Court on balance of probability to be entitled to same.
I shall call in aid, a judicial authority on the need of root of title which I consider germane at this stage. In the case of LAWAL VS. OLUFOWOBI (1996) 10 NWLR (PT. 477) 177 at 188 A-B, this Court held as follows:-
“The root of title, in cases like the one now on appeal, once pleaded as raison d’etre 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 will be 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 futile exercise to go into the issue of possession or acts of ownership. Are v. Ipaye (1990) 2 NWLR (Pt 132) 298, 301, Fashoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263, Balogun v. Akanji (1988) 1 NWLR (pt.70) 301 and Idundun v. Okumagba (1976) 9-10 SC 277.”
The appellant at this late stage veering off course from his pleadings to contend that he relied solely on documentary evidence is understandable since he is clutching at whatever he can see available to save his case having failed to discharge the burden placed on him. See the cases of VINCENT I. BELLO v. MAGNUS A. EWEKA (1989)1 SC 63 at 71 (RE-PRINT); AGBANA v. OWA (2004)13 NWLR (Pt.889) 1 at 17.
It is cardinal and a well settled principle of law that the burden of proof in civil matters is generally on the plaintiff/claimant (the Appellant herein).
It is my humble view that the burden of proof on the Appellant in establishing declaratory reliefs are not granted even on the admission by the defendants (Respondents herein). In this instant appeal, the Appellant failed to discharge this burden on him in the lower Court and it is not difficult to so hold.
It needs be brought to the fore that declaratory reliefs are not granted based on the lack of credible evidence by the defence but on the convincing, satisfactory and credible evidence by the claimant. Assuming that the Respondents’ evidence were not satisfactory enough, that is not a pointer that the declarative reliefs should be granted.
By paragraph 4 of the Appellant’s statement of claim at pages 13-14 of the record, the Appellant avers that:-
“That the title; right and interest in and over the large expanse of farmland situated and lying at Rugan, Guza-Ragachikun in Igabi Local Government Area, Measuring 138.803 Hectares (343.00 Acres) covered by Certificate of Occupancy No. 15925 dated 9/6/2006 registered as No. 91 at page 91 in Volume 118 of the Kaduna State Lands Registry Kaduna State (hereinafter called the farmland) issued in my favour was originally vested in one Abubakar Haruna (now deceased) who acquired same from the customary owners of the farmland that have been cultivating same for a long period of time.”
From the above paragraph 4, it is clear that the Appellant relied on Certificate of Occupancy No.15925 dated 9/6/2005 (Exhibit 4) and purchase of the land in dispute from one Abubakar Haruna vide a Deed of Assignment (Exhibit 1). The mere tendering of the Certificate of Occupancy Exhibit 4, does not automatically prove that the land in dispute belongs to the Appellant, without going further to establish the title of the alleged customary owner of the land in dispute. This is because it was the Deed of Assignment executed by one Abubakar Haruna that led to the issuance of the Certificate of Occupancy (Exhibit 4). Abubakar Haruna allegedly acquired his title to the land by, purchasing same from the customary owner, but no evidence before the trial Court on how the purported customary owner became the owner of the land before transferring same to Abubakar Haruna or to the Appellant. In the case of PRINCE NGENE v. CHIKE IGBO & ANOR (2000) 2 SCNJ 136, (2000) 4 NWLR (pt.651) 131 at 149 paras B-D, this Court held that production of registered documents does not automatically prove that the land sought to be conveyed therein belongs to the party who tendered it. This Court further held as follows:
“It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how that person or family derived his or its title to such land. Accordingly, the plaintiff, to succeed in his claim for declaration of title to land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case, the defendant did not concede the ownership of the land by the plaintiff’s grantors but expressly denied the same. See Mogaji & Ors v. Cadbury Fry (Export) Ltd (1985) 2 NWLR (pt. 7) 393. In the present case, the root of title of Ugwu Mba was neither pleaded nor did the plaintiff attempt to establish the said root of title. This without doubt, is fatal to the plaintiff’s claim in declaration of title to land in dispute…”
See also the case of ARIYO v. ADEWUSI (2010) 15 NWLR (PT. 1215) 78 AT 91 which followed the same principle thus:-
“It is trite that the mere tendering of an instrument to land, such as a Deed of Conveyance or a Certificate of Statutory or Customary Right of Occupancy in Court does not automatically prove that the land therein purportedly conveyed, granted or transferred by the instrument becomes the property of the grantee.”
See also Auta v. Ibe (2003) 13 NWLR (pt. 837) 247 at 265 and Aminu v. Ogunyebi (2004) 10 NWLR (pt. 882) 457 at 481.
It is instructive that the Respondents pleaded in their joint statement of defence that the 1st Respondent had been in peaceful and undisturbed possession of the land in dispute since 1962 and that he 1st Respondent had never been divested of the ownership of the land by anybody at any point in time till date. For avoidance of doubt, the Respondents aver in paragraphs 3, 5, 6, 7, 8, 9 and 10 of their statement of defence at pages 92-94 of the record as follows:-
“3. In furtherance of paragraph 2 above, the defendants aver that he 1st defendant has been in possession of the piece or parcel of land since 1962, the said piece or parcel of land was allocated to Ministry of Defence for the use of the 1st defendant by the then Government of Northern Nigeria vide the Northern Nigeria Council Memorandum of 20th- 22nd October, 1962. The defendants shall rely on the Northern Nigeria Executive Memorandum of 20th – 22nd October, 1962 during the trial of this case.
- The defendants admit paragraph 6 of the Plaintiff’s statement of claim to the extent that all lands comprised within the present Kaduna State and its environs including the piece or parcel of land being claimed by the plaintiff were under the management and control of the Government of the then Northern region of Nigeria.
- The defendants in response to paragraphs 7 and 8 of the plaintiff’s statement of claim aver that as at the time the piece of the land was allocated to the Ministry of Defence, the whole land was a virgin forest and no one was farming on the land or was in occupation.
- In furtherance of paragraph 5 above, the defendants aver that since 1962 when the land was allocated to Ministry of Defence for use of 1st Defendant by Government of the then Northern Region of Nigeria, the ownership and interest of Ministry of Defence had never at any point in time been divested or transferred to any other person.
- The defendants in addition to paragraphs 5 and 6 above aver that Mallam Abubakar Haruna who purportedly sold a portion of defendants’ land to the plaintiff is a stranger to the land and had no legal ownership or interest in the land and had nothing to sell and transfer to the plaintiff.
- The defendants aver further that since the land was allocated to the Ministry of Defence in 1962, the 1st Defendant had been in exclusive occupation and its right of occupancy had never been revoked by any authority whatsoever.
- The defendants admit paragraphs 9 and 10 of the plaintiff’s statement of claim to the extent only that as at the material time Kaduna State Ministry of Lands Survey and Country Planning accepted the payment of the prescribed fees for payment for the transfer of title in the land to the plaintiff, it either closed its eye to the existence of the Northern Nigeria Council Memorandum of 20th – 22nd October, 1962 allocating the land to Ministry of Defence or was not aware of the existence of same.”
It should be noted that the Appellant through his witness PW2 who testified to being 48 years of age also testified that he was born to meet the Air Force base on the land, therefore, reinforcing the claim of ownership through long possession by the respondents. See the evidence of PW2 under cross-examination on the 4th of December, 2014 at page 233 of the records.
Therefore, as at the time Exhibits 1 and 4 were executed, issued or carried out, there was in existence, a valid and existing title/interest of the Respondents in and over the land in dispute and the title/interest had not been cancelled, set aside or invalidated by any genuine instrument.
It is not correct from the evidence that PW1-PW5 proffered evidence which established a valid title to the land in favour of the appellant because neither the appellant’s pleading nor his witnesses established how the claimed customary owner came across the land in dispute since the said customary owner had not been proved and so Abubakar Haruna cannot be said to have acquired good title or any title to the land endowing him the position to transfer any title or interest to the appellant, as he cannot give what he does not own. This is expressed in a latin maxim: Nemo dat Quod Non Habet. I refer to the case of IBRAHIM v. OSUNDE (2009) 6 NWLR (PT.1137) 382 at 404 S.C, OLUBODUN v. LAWAL (2008) 17 NWLR (PT. 1115) 1 at 36 – 37 and AKINTERINWA v. OLADUNJOYE (2000) 6 NWLR (Pt. 659) 92 at 105 Paras A-B & 115.
PW2 and PW3 only gave evidence to the effect that they inherited the land in dispute from their parents through traditional inheritance and that it was one Mallam Abubakar Haruna that bought the land from the parents of PW2 & PW3’s parents. The PW2 and PW3 never told the Court how their parents became the customary owners of the said land, therefore, the Appellant has not satisfied the requirements laid down by this Court in the case of Ibrahim v. Osunde (supra). The Appellant’s claims must therefore fail in its entirety as held by the lower Court. I also refer to MOGAJI v. CADBURY (NIG) LTD (1985) 2 NWLR (Pt.7) 393.
In JOLAYEMI v. ALAOYE (2004) 12 NWLR (Pt.887) 322 at 348, this Court held that a defendant (the Respondents in this case) need not prove anything if the Plaintiff (Appellant in this case) has not succeeded in establishing his case, at least, prima facie, in order that the necessity of the defendant to confront the case so made may arise. See also AGBANA v. OWA (2004) 13 NWLR (Pt. 889) 1 at 17 where this Court held that where the Plaintiff fails to prove his case as required by the law, it shall be dismissed.
The case of AIYEOLA v. PEDRO (2014) 14 NWLR (Pt. 1424) 409 at 422 cited by the Appellant at page 12 of his brief of argument is against the Appellant’s position because there is an exception spelt out in the portion quoted by the Appellant which says:
“…Unless the vendor’s title has become an issue in the case …”
In the case at hand, the vendor’s title (Abubakar Haruna) had become an issue and the appellant unable to explain the origin of the title of the said vendor.
Paragraph 28 of the respondent’s statement of defence is a notice to the appellant that he had failed to establish his root of title and so not entitled to the reliefs he sought. It is to be restated that whether the appellant’s root of title to the land in dispute is challenged by the respondents or not, the appellant as plaintiff still carries the burden of proving his root of title on the preponderance of evidence and in this instance the appellant has failed.
Again to be said is that, it is settled in law that a party can rely on the pleading of his adversary, lead evidence on same and advance arguments in support of his own case and therefore, the respondents need not specifically plead that they will challenge the case of the appellant in Court. I place reliance on Dokubo v. Omoni (1999) 8 NWLR (pt.616) 647 at 664 – 665 and Okhuarobo v. Aigbe (2002) 3 SCNJ 109.
It is glaring that nothing has been proffered by the appellant upon which this Court would interfere with the findings and conclusion of the Court below, which rendered its decision borne out of the record, the evidence led and the law. I resolve the issue against the appellant and in favour of the respondents.
The appeal lacks merit and I dismiss it. I award the sum of N500,000 (Five Hundred Thousand Naira) to the respondents, to be paid by the appellant.