Alhaji Aban Mararraban Kwari V. Livinus Rago (2000)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A.
The plaintiff, before Kachia Area Court No.1, claimed title to a parcel of land given to him five years ago against the defendant. The piece of land was allegedly given to him by Sarkin Kachia and is situated to the East of Mazuga town in Mazuga District. The defendant agreed to having cleared the piece of land and had done the clearing nine years ago. He claimed that he had enjoyed quiet possession since he started tilling the farmland. He traced his title to Sarkin Kachia, Abubakar. through Sarkin Mazuga, Aduwan who put him in possession. The plaintiff, at the trial area court, was successful and was awarded the farmland situated at Mazuga, Kachia Local Government.
The defendant was unhappy with the decision of the area court and being dissatisfied appealed to the Kachia Upper Area Court against the area court’s decision. Once more he was unsuccessful in his attempt to obtain the reversal of the decision of the trial court. The upper area court dismissed the appeal.
The defendant was again aggrieved with the decision of the Kachia Upper Area Court and further appealed to the Kaduna State High Court of Justice sitting in Kafanchan. The defendant’s appeal against the decision of the Kachia Upper Area Court was upheld. The appeal was consequently allowed and the decisions of the trial court and the upper area court were set aside.
The plaintiff being dissatisfied with the decision of the high court, with the leave of this Court, has appealed on five grounds of appeal.
In accordance with the practice and procedure of this Court, briefs of argument were filed and exchanged at appellant’s brief, respondent’s brief and appellant’s reply brief. The reply brief was devoted wholly to the objection taken to some of the grounds of appeal in the respondent’s brief. Learned counsel for plaintiff (hereinafter referred to as appellant) formulated five issues in the appellant’s brief. The issues are set out, immediately hereunder, as follows:-
(a) Whether the learned trial Justices of the High Court misdirected themselves when they held that the learned trial judge laboured under a misconception as to where the burden of proof lay.
(b) Whether the learned Justices of the High Court misdirected themselves when they held that the trial judge was wrong in relying on the documents of title presented by the plaintiff/Appellant.
(c) Whether the learned Justices of the High Court were right in interfering with the findings of fact made by the trial court as to the issue of title to the land in dispute.
The respondent on the 9th day of June, 1998 gave notice of his intention to rely upon preliminary objection brought under Order 3 rule 15 of the Court of Appeal Rules, Cap. 62 of the Laws of Federation of Nigeria, 1990. The objection reads as follows:-
“The Respondent hereby raises a preliminary objection to the competence of issue No.2 as same relates to the 2nd ground of appeal as well as issue No.4 as same relates to the 3rd ground of appeal on any or all of the grounds set forth hereunder.”
The grounds of the objection are set forth immediately hereunder:-
“(i) Whereas the 2nd ground of appeal and issue No.2 thereon complains of a misdirection regarding certain documents that were used by the lower area courts but were not put in evidence, that portion of the appellant’s brief on page 4 paragraph 3 to page 5 paragraph 4 is incompetent and should be struck out or discountenanced because;
(a) issue concerning the applicability of the Land Use Act, 1978 have not been raised as a specific ground of appeal and submissions thereon are alien to issue 2 and ground 2.
(b) admissibility of documentary evidence being a question of law, there is no ground of appeal dealing with the admissibility or otherwise of the documents discussed on page 5 of appellant’s brief.
(ii)(a) The 3rd ground of appeal and the 4th issue for determination arising therefrom as framed and canvassed on pages 7 – 8 of Appellant’s brief should be struck out or discountenanced as they are purely academic and general in terms and so are incapable of determining this appeal either way.
(b) even though the 3rd ground of appeal is christened as ground of law, submissions thereon are based on misdirection.”
The appellant’s 5 issues were numbered alphabetically, that is (a) – (e), but the respondent’s objection revolves round issues that are set out numerically in Arabic figures. Respondent is not alone in perpetrating the error the appellant who arranged his issues alphabetically canvassed them in his brief numerically numbered. This inconsistency in reference may lead to a confusion or muddle in the course of considering the appeal.
I propose to deal with the second arm of the objection quickly and to say that it lacks merit. Ground 3 from which the appellant’s issue (d) is framed is neither academic nor general in terms. As it can be garnered from the issue itself the ground of appeal is questioning the correctness of the judgment of the learned judges of the court below upholding the right of a district head who testified as plaintiff witness 3 to make a grant of farmland, without prejudice, contrary to the provisions of the Land Use Act. Particular (ii) of the objection fails and is refused.
On respondent’s objection to appellant’s argument in respect of his issue (b). I do not think the respondent is on a strong wicket. The appellant was merely canvassing an alternative argument under the issue. In one breath it was argued on the ground of admissibility of the document and in another it contested the judgment on the competence of the court below to raise suo motu the issue concerning the admissibility or the use the trial court put the documents. Either argument or both respectfully are opened to the appellant under issue 1. It is not correct to contend that appellant has tacked under this issue argument in respect of other matters which do not belong to the issue. All learned counsel for appellant is doing is to attack the competence of the finding of the court below on the admissibility of the documents from two separate fronts. It is not extraneous to canvass an issue in the alternatives: Agidigbi v. Agidigbi (1996) 6 NWLR (Pt.454) 300. All they were arguing is that the documents were properly or regularly produced in evidence in the alternative the matter is not open to the court below to take suo motu. Such approach respectfully, in my considered opinion, is not improper.
But the question raised as preliminary objection does not qualify as one. A matter that qualifies to be brought as a point of preliminary objection is one which when determined either way is capable of terminating the proceedings. The hearing of the present appeal would in any case, have proceeded even if the respondent’s objections were to be sustained. It is therefore not properly styled a preliminary point of law. In Windsor Refrigerator Co. Ltd vs. Branch Nominee Ltd (1961) Ch D 375, 382 Lord Evershed M.R. said:-
“The procedure by a preliminary point of law is in general only satisfactory when whichever way it is decided it is conclusive of the whole matter.”
I now return to the consideration of the appeal itself and have already indicated my preference for appellant’s formulation of issues. Appellant’s formulation would, therefore, be used asparameterfor considering and determining this appeal. Notwithstanding the respondent’s formulation of issue, deliberate efforts would be made to ensure his corresponding submissions in the respondent’s brief of argument are considered in the course of writing this judgment.
On appellant’s first issue learned counsel referred the court to a statement credited to the learned judges of the court below that the trial judge “laboured under a misconception as to where the burden of proof lay.” Learned counsel contended that there was nothing in the record of appeal to justify arriving at that conclusion by the High Court. Learned counsel stated that in land matters the burden was on the plaintiff at the trial and submitted that the learned trial judge adequately considered the evidence adduced by both parties before arriving at his decision. It was finally submitted that there was no where in the judgment of the trial court where the burden of proof was shifted on the defendant.
I agree with both learned counsel that it is now trite and more than settled that in an action for a declaration of title, such as in the present appeal, the burden of proof lies squarely on the plaintiff who must succeed on the strength of his case and not on the weakness in the defendant’s case. See Awofolaju vs. Adedoyin (1992) 8 NWLR (Pt.206) 383, 504; Anyawu vs. Mbara (1992) 5 NWLR (Pt.242) 386, 401; Edosomwan vs. Ogbeyfun (1996) 4 NWLR (Pt.442) 266, 278; Akinlola vs. Lasupo (1991) 3 NWLR (Pt.180) 508; Akawu vs. Maiunguwa (1998) 5 NWLR (Pt.551) 665, 671; Dasibel v. Ishaya (1996) 1 NWLR (Pt.462) 626, 633, Latifu Owoade vs. John Omitola (1988) 5 SCNJ 1, 7 and Nwoye v. Bolarin (1991) 4 NWLR (Pt.184) 257, 264 this Court stated as follows:-
“In an action for declaration of title, the onus of proof lies on the plaintiff to show that on the evidence brought by him he is entitled to the declaration sought in discharging this onus, he has to rely on the strength of his own case and not on the weakness of the defence. And where he fails to discharge this onus the weakness of the defendant’s case will not help him.”
But where there is admissible evidence supplied by the defence which lends support to or strengthens the plaintiff’s case the plaintiff will be entitled to rely on it: Ekpo v. Ita 11 NLR 68, Nwokafor & Ors. v. Udegbe (1963) 1 All NLR 104, 107 and Elifisoye vs. Alabetutu (1968) NMLR 298. The exception does not apply here because there is neither evidence nor admission which lends itself to the plaintiff’s case in the defence.
The best approach of weighing evidence, by placing it on an imaginary scale, as laid down in Mogaji & others v. Odofin & others (1978) 4 SC 91, where there is competing claims for title, is first to consider the plaintiffs title and decide upon it before a consideration of the title of the defendant: Aromire Awoyemi (1972) 1 All NLR 101, 113, Owoade vs. Omitola (1988) 2 NWLR (Pt.77) 418, 420.
In the instant appeal, the trial judge reviewed the evidence of the plaintiff witness, and without considering and deciding upon it, proceeded to review the evidence adduced by the defence. Thereafter the court observed thus:-
“Livinus was asked to produce any document showing that the gift was made to him from Sarkin Kachia or from District Head or a certificate of occupancy from the Local Government; but he was unable to produce any of them. The court also visited the place and got every explanation about it – see the report of inspection. This court, during the inspection, that there is no old clearing made by the defendant as he is claiming he did since the place was given to him, but the court saw where he cleared last year, 1987. At the site, the court asked the parties to produce their documents of title to the place they are claiming, but only the plaintiff was able to produce documents of title, but the defendant did not produce any document and simply said no documents were normally given at that time.
In the view of the court if the place were given to him and at the time of the gift, he should have been given the document, and he should have looked for the person who gave him the place to give him the documents when this trouble started on the farm and to explain why he did not give him the document then, but there is no such explanation.”
There is no contradiction in the respondent’s case as claimed by the area court judge. He was merely crying wolf where there was none or trying to give a dog a bad name to have excuse for hanging it. The first and third defence witnesses took the respondent to show him the parcel of land which Sarkin Kachia approved for the respondent. The second defence witness testified merely to respondent coming to inform him that Sarkin Kachia had given him a farmland. But it is not clear how the second defence witness acquired knowledge of the farmland given to the respondent. He betrayed his knowledge of respondent land when he accompanied third plaintiff witness to measure land for the appellant. He is on record as having said that:-
“Sarkin Kachia then said that he has come to make a declaration and I asked him what declaration; and he replied that he want to give Alhaji Aban a place from where we were up to the other side. Since he is the boss to me. I followed him and he measured 40 feet steps and as we were taking measurement, we passed a farm and arrived at Livinus Rago had cleared and I informed him.”
Livinus Rago and Alhaji Aban are respectively respondent and appellants in this appeal. The three respondent’s witnesses agreed on the substance of his defence that he was given a parcel of land by Sarkin Kachia and all knew the location or the identity of the land.
The area court judge equally placed undue emphasis on the respondent’s failure to produce documentary proof of the land given to him. The court went to the ridiculous extent of questioning his omission to request his grantor to issue him with a document when the case started. He thereby set respondent an impossible task because the Sarkin Kachia, who gave respondent the land was dead at that time otherwise the third plaintiff witness would not have become Sarkin Kachia who made a present of the land to the appellant. Finally it is not a requirement of native law and custom to be issued with a document on grant or presentation of a gift of land. The customary gift of land is an incident of native law and custom to which writing was strange. A documentary evidence in customary transaction, although desirable is not a sine qua non of a native law and custom.
It is not a requirement of law nor of practice that transaction on land between two natives should be in writing. Although Section 4 of the Statute of Fraud 1677 which is now repealed requires that a transaction concerning interest in land should be evidenced by a note or memorandum in writing. On the application of Statute of Fraud to a transaction in land of a native, the full court of Divisional Court of Nigeria refused to lay down, as a strict principle of law, that land, the property of an illiterate native, cannot be disposed of by him without compliance with the statute. See Bintu Alake and Ashafa Lawal vs. Awawu 11 NLR 39, 40 and Ashabi Oludeji vs. M.A. Okupe 15 NLR 28. If there is any woolly area in the state of the law, I think, such grey area is cleared by the provisions of Section 5 of the Law Reforms (Contracts) Act No.64 of 1961. This Section is in substitution for Section 4 of the Statute of Frauds, 1677 of the Parliament of England and that section ceased to be in force in this country except in respect of contracts made before the commencement of the Act. Subsection (3) thereof excludes the application of the provisions of the section to sale or other disposition of land made under customary law. Paragraph (a) of sub-section (3) of Section 5 reads as follows:-
“(3) Nothing in this section shall
(a) apply to any contract or other disposition of land made under customary law.“
The area court judge over-played the issue of documentary evidence in his judgment. His insistence beclouded his consideration of the oral evidence placed before him. He was apparently swept of his feet by the array of documents referred to by the third plaintiff witness even though those documents were not before him. The emphasis he placed on documentary evidence did not allow him to properly consider respondent’s oral testimony. He lost control of the case.
The trial area court judge stated in his decision that the respondent’s case was contradictory. But his reasoning, in the judgment, is not supported by the appellant’s case which he appears to have accepted. While the judge observed that, contrary to the respondent’s claim, that he cleared the parcel of land, since the time the place was given to him, about 9 (nine) years before the date he testified in the area court, the appellant’s witness, third plaintiff witness supported respondent’s case. The third plaintiff witness, Sarkin Kachia, who claimed to have made the gift of the land to the appellant, initially testified to giving a virgin land to the respondent. He denied the suggestion that what he gave to respondent included other people’s farmland. The same witness, however, somersaulted and stated thus just at the end of his testimony:-
“PW3 later said that he has some thing to add for more clarity. When I gave him this place there was one small farm attached to the place that I gave to him but I said that I don’t know the owner of the farm, I therefore asked him to look for the owner of the farm and settle with him, but I have not given the farm to him. That is what I forgot to tell the court.” (underlining mine)
It is the case of the appellant that he was given a virgin land in 1982. The Sarkin Mazuga. who took him to the land in 1982 testified to the effect that there was already some clearing carried out prior to their visit to the farmland to hand it over to the appellant. The assessment of the area court judge that the clearing was only done in 1987 could not be correct. The plaintiff third witness, in his volte face, admitted, contrary to his earlier assertion, that there was an existing farmland on the disputed land and that the grant to the appellant was subject to his reaching some amicable settlement with the owners of the farms found on the land. This piece of evidence substantially agrees with the evidence of second defence witness who claimed to have reminded third plaintiff witness of the existence of other people’s farmlands on the disputed land. It was this reminder that apparently prompted the third plaintiff witness to advise the appellant to reach accord and settlement with the owners of such farms. The testimony of second defence witness was supported by the testimony of third defence witness on the question of the appellant reaching accord with the owners of the farmlands found during their visit. It can be inferred from the testimony of second and third defence witnesses, who were present when the third plaintiff witness attempted to hand over the land to the appellant that the gift of land was eventually postponed. It was postponed to a future date when the appellant might have settled with the respondent. The oral evidence of these witnesses was further strengthened when the trial area court judge, during his visit or inspection of the locus-in-quo found respondent’s farmland there. Although the trial area court tried to play down the effect of such discovery by saying that it was tilled only last year contrary to the evidence of plaintiff’s third witness which he accepted.
The trial court made a mountain out of a mole hill of the appellant’s documentary evidence, nay documents because they were never produced, if they ever existed, in evidence. There is no record of their production in the court nor during the inspection of the farmland.
The existence or otherwise of the documents surfaced, for the first and last time, in the judgment of the trial court. They were never produced at the Kachia Upper Area Court nor in Kaduna State High Court of Justice sitting in Kafanchan. The existence of the documents was shrouded in mystery. The documents were not shown to the respondent for his inspection not to talk of testing their authenticity and evidential value during cross-examination. The use to which the area court judge put those documents which were not tendered before him in the presence of the other side is most improper. The respondents were denied opportunity of taking objection to those documents. What the trial judge did was tantamount to doing cloistered justice and he has no right to so act. The uselessness of the evidential value of those documents was further buttressed by the conflicting dates given to some of them in the area court’s judgment.
The appellant alleged that the land in dispute was a gift from Sarkin Mazuga and Sarkin Kachia. The respondent also traced his title to predecessor of Sarkin Kachia who allegedly gave appellant the same parcel of land. Where the two parties, in an action for a declaration of title, trace their root of title to the same person title vests in the party with a better title. The appellant, in his efforts to show that he has a better title, called four witnesses. The Kachia Upper Area Court, after evaluation and appraisal of the evidence of the plaintiff witnesses jettisoned or rejected the evidence tendered by first, second and fourth plaintiff witnesses. Having rejected the testimony of these witnesses the appellant was left only with the evidence of his third witness. It should not be understood that it is a game of number rather it is one of quality. It is trite and more than settled that one credible witness is sufficient to establish a claim. The third plaintiff witness, after his assertion that the land was a gift from him to the appellant, switched to say that, when he noticed some farmlands on the land in dispute, he asked him to reach some accommodation with the owners of the farmland and thereafter the gift might be perfected. This appears to be the understanding of the court below which construed the grant to appellant to be a conditional one. Their Lordship finding has not been appealed against. The evidence of this witness is either inherently contradictory or fortified the respondent’s case.
On the other hand, the respondent called three witnesses in support of his claim that the gift of land to him was earlier in time. To this end the first defence witness, Sarkin Mazuga, who made a gift of the land to the respondent, gave uncontradicted and unchallenged evidence that the grant was made to the respondent 9 years ago and the respondent immediately took possession by clearing the same. Thereafter first defence witness made a report of the gift to his superior or overlord, the then Sarkin Kachia. He was supported by the second and third defence witnesses. The first plaintiff witness as well as the court during its inspection visit conceded that they found a farmland on the land in dispute belonging to the respondent.
Clearly the respondent as against appellant has a better title notwithstanding the documents appellant was purportedly touting about. It follows that the appellant would not be entitled to the customary right of occupancy on the land in dispute until the respondent’s interest therein is revoked. See Section 6(3) of the Land Use Act. Cap 202 of the Laws of Federation of Nigeria, 1990 which provides that before a customary right of occupancy can be granted the existing right or interest on the land ought to have been revoked. Before there can be a valid grant of customary right of occupancy existing customary right must have been extinguished either by the local government acquiring the land in question and paying off the holder or occupier, as the case may be his compensation.
In the alternative the grantee might settle amicably with the occupier or holder before applying for a customary right of occupancy. Section 6(3) of Land Use Act Cap 202 reads as follows:-
“(3) It shall be lawful for a-Local Government to enter upon, use and occupy for public purposes any land within the area of its jurisdiction which is not-
and for the purpose, to revoke any customary right on any such land.”
There is no evidence of such revocation nor payment of compensation to respondent for his unexhausted improvement provided for in Section 6(4).
The provision of this sub-section is different from the provisions of Section 5(2) of the Land Use. Act Cap 202 which extinguished existing rights on a grant of statutory right of occupancy. Subsection (2) of section 5 of the Act provides as follows:-
“(2) Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”
There is no similar provision in Section 6 which confers on or concerning the power of a local government to grant a customary right of occupancy. In the absence of evidence of prior revocation of the respondent’s interest in the land, the purported certificate of occupancy being flaunted by appellant is seriously defective. The respondent having shown himself to be the customary owner of the land and was in possession his interest in the disputed land is not automatically extinguished by the mere issuance of customary certificate of occupancy. The certificate was invalid; to be valid, there must not be in existence a customary owner whose interest had not been divested: Registered Trustees Apostolic Church vs. Olowoleni (1990) 6 NWLR (Part 158) 514, 527; Dzungwe v. Gbishe & Another (1985) 2 NWLR (Pt.8) 528. 540 and Joshua Ogunleye v. Babalayo Oni (1990) 2 NWLR (Part 135) 745.
The appellant who incidentally was the plaintiff in the trial court cannot succeed by canvassing a title which itself have been manifestly demonstrated to be defective: Aromire v. Awoyemi (1972) 1 All NLR 101, 102, Alhaji Adesoye vs. Siwomiku 14 WACA 86, 87, Lyell v. Kennedy (1882) 20 Ch D 484, 490; Amakor v. Obiefuna (1974) 3 SC 67 and Asher v. Witlock (1865) LR QB 1, 5. As the evidence clearly shows that the respondent was in possession the burden of proof shifts on the plaintiff; now appellant, to show that he has a better right to possession which had been disturbed: Egwu v. Duro Ogunkehin SC.529/66 delivered on 28th February 1969.
The respondent’s counsel made submissions on the priority of grants. It was argued, on his behalf, that, since the gift made in his favour was first in time, and the respondent acquired his ownership to the land in dispute prior to the issuance of certificate of occupancy the certificate cannot confer title on the appellant. The argument was predicated upon the Latin maxim of Qui prior est tempore potior est jure meaning where the equities are equal, the first in time prevails. He cited the case Gankon vs. Ugochukwu Chemical Industries Ltd (1993) 6 NWLR (Pt.297) 55, 74. But can one correctly assert that equities are equal in the instant case? I do not think so. The plaintiff called four witnesses in support of his customary tenure, three of the witnesses were found unreliable and their testimony rejected by the Kachia Upper Area Court. The findings of that court rejecting evidence of these witnesses were not challenged on further appeal to the high court. In the absence of appeal to a competent court challenging these findings the same subsist until set aside. The evidence of the remaining witness, third plaintiff witness, was inherently contradictory. After he had finished his evidence-in-chief, gone through cross-examination and the party calling him had gleefully announced to the court that he was not re-examining him the witness turned coat. Third plaintiff witness then informed the court that he had something to add for clarity. He proceeded then to tell the court that the grant was subject to the appellant looking for the owner of the farm and settling with him, “but I have not given the farm to him”. The clause “but I have not given the farm to him” is rather ambiguous. Does it amount to subjecting the grant to appellant’s payment of compensation to the owner of the farm? Or does it mean he did not give the land to the owner of the farmland found on the land in dispute?
The reason for this confusion is the use of the pronoun “him” freely without making distinction between the appellant and the owner of the farm. On either view the third plaintiff witness cannot be taken as an impeccable witness. On the day he went to show the land to appellant he was warned of the existence of the respondent’s farmland on the land in dispute by second and third defence witnesses. To then pretend not to know that respondent owned the land through a grant made to him by the witness’ predecessor in office is despicable. He lied throughout his evidence-in-chief and cross-examination. It was a prick of conscience that forced him, in the circumstances that smacks of after thought, to “confess” just as he was about to step out of the witness-box. I am firmly of the view that he was an unreliable witness because, in his evidence-in-chief he insisted that he gave virgin land to appellant but under cross-examination he agreed that there were people who were given land by his predecessor, Sarkin Rachia, Abubakar and that those people were still tilling the land.
All his four witness having been discredited, the appellant’s alleged customary tenure remains unproven. In the absence of proof he had no equitable interest in the land for purposes of ranking priority. He must first hoist his equitable interest in the land before there can be consideration whether the equities are equal and which one came before the other. The situation that has arisen, in the instant appeal, is that the appellant, who initiated the action, in the trial area court, failed to establish his customary tenure in respect of the land in dispute as against the defendant who, as respondent, showed that he had customary ownership of the land in dispute. There is, therefore only one existing equitable interest immediately before appellant obtained the certificate of occupancy he claimed Rachia Local Government issued to him.
The resolution of issue 1 virtually disposes of appellant’s issue 2 but I would like to make an observation on the issue for purposes of completeness.
The appellant’s grouse in issue 2, which I think calls for observation briefly, touches upon the finding of the learned judges of the court below that the documents used in the judgment of trial court were not tendered before the area court. It is the contention of the learned counsel for appellant that neither at the upper area court nor at high court did the respondent raise the question of failure to tender and the admission of the documents. He sought to buttress his argument by making references to the extensive use, he claimed, the respondent’s counsel put the documents at the upper area court.
On either view I do not think learned counsel for appellant is on a strong wicket. There is no rule of practice nor procedure prohibiting a party which did not make use of a document at one stage of the proceeding from calling for them at the next stage. It is equally correct that an appellate court can suo motu call for documents which were used by the trial court in its judgment whether or not counsel for either party made reference to them. The court can then look into the question of its production or otherwise by examining the record. I have examined the record including the inspection visit to the land in dispute nowhere did the trial court mentione any of the documents it made use of in its judgment outside the said judgment. Being an area court it is not intended to saddle him with burden of formally admitting them in evidence but it certainly has a burden to indicate that a particular witness showed or brought to court certain documents since area courts are not bound by the Evidence Act Cap 112 of the Laws of Federation of Nigeria, 1990. Assuming the documents were tendered and admitted by the trial court where are they? The documents are nowhere to be found. The learned counsel for appellant rather than explain the whereabout of the documents which were asked for in the court below he chose to bluff his way through in the appellant’s brief.
The answer to issues (a) and (b) are answered in the negative, the grounds of appeal from which they are framed fail and are dismissed by me.
The appellant’s issue (d) is framed from ground 3 of the grounds of appeal. Ground 3 of the grounds of appeal read thus:-
“The learned Justices of the High Court erred in law when they held that PW3, a District Head had authority to grant title over land.
PARTICULARS OF ERROR
Under the Land Use Act, only the governor and Local Government Councils are empowered to grant title over land.”
It is doubtful if the appellant can appeal against the decision of the learned judges of the court below. It was his case in the trial court that his grant was made to him by the District Head when his third plaintiff witness testified thus:-
“I told him that the document I gave him is not enough, that he should come so that I may take him to my boss the District Head who is the person in control of land in Kachia. He later came on 10/8/82 and I took him to District Head, Alhaji Salihu Ahmadu who gave him a document of title/right of occupancy.”
So it was the appellant’s case at the trial court, that the District Head gave him right of occupancy. The respondent’s case, throughout the proceedings, was that he obtained customary ownership or tenure, which is apparently taken cognizance of by Section 6(3) and (4) of Land Use Act, Cap 202, from the predecessor of the third plaintiff witness, Sarkin Kachia Abubakar.
So the finding of the learned judges is in his favour. He cannot thereby be aggrieved by that decision. It is for that reason not open to him to complain as he was not an aggrieved party in respect of that finding. Ground 3 is incompetent and is struck out.
In any case, I think all the issues in this appeal have been adequately disposed off in my consideration of appellant’s issue (a). The appeal consequently fails and it is dismissed. The decision of the court below dismissing appellant’s claim is hereby affirmed by me. There is order as to costs which is assessed at N4,000.00 in favour of respondent.
Other Citations: (2000)LCN/0828(CA)