Alhaji Uba Garba V. Alhaji Bala Mahmudu Yakasai (2005)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the judgment of the Kano State High Court, sitting at Kano Judicial Division, holden at Kano, presided over by Aliku, J, delivered on 1st of June, 1998. The respondent who was the plaintiff at the trial court, took out a writ of summons against the appellant who was the defendant claiming the following reliefs:

“1. A declaration that he is the rightful owner of plot No.512 situate, lying and being at Baban Giji Quarters in Kano and covered by Certificate of Occupancy No.LKN/RES/86/1577.

2. A declaration that the occupancy permit No.5339 acquired by the defendant through one Alhaji Adamu Ado, purporting to be in respect of the said plot No.512, situate, lying and being at Baban Giji Quarters, Kano, is forged, null, void and of no effect whatsoever.
3. A mandatory injunction directing the defendant to uproot and evacuate the structures and fixtures he has now erected on the said plot No. 512, Baban Giji quarters, Kano.
4. A perpetual injunction restraining the defendant his agents and or servants from trespassing into the said land again.
5. And the sum of N200,000.00 (Two hundred thousand Naira only), being damages for trespass and injurious use of the land.”

Pleadings were ordered filed and exchanged by the parties.

The trial court at page 3 of the printed record on 11/3/91, deemed the statement of claim dated 26/2/91 filed on 27/2/91, before pleadings were ordered as having been properly filed and served and granted 60 days to the appellant, who was the defendant within which to file his statement of defence. I observed that at pages 72 – 74, that there is an undated Amended Statement of Claim, but there is nowhere in the printed record where the order granting leave to amend the statement of claim was made, hence, the original statement of claim contained at pages 115 – 116 dated 26/2/91, is the one recognized by the court upon which the action was heard.

It is now well settled that in civil proceedings commenced at the High Court, parties are bound by their pleadings and any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. See George & ors. vs. Dominion Flour Mills Ltd. (1963) 1 S.C.N.L.R 117, 1 All N.L.R 71 at 77; Emegokwue vs. Okadigbo (1973) 4 S.C.113 and Orizu vs. Anyaegbunam (1978) 5 S.C. 21.

The burden of proof in a civil case, is on the plaintiff who had made a positive assertion to prove it by evidence. See Vulcan Gases Ltd. vs. Gesellschaft for Industries Gas Refining (2001) 9 NWLR (Pt.719) 610 at 667. It follows therefore, that the importance of pleadings in a civil case can not be over emphasised, hence, the averments in both the statement of claim and the statement of defence that I consider relevant are hereby reproduced below.

I consider paragraphs 3, 4, 5, 6, 7, 8 of the statement of claim dated 27/2/91, contained at pages 115 – 116 of the printed record relevant and are as follows:

“3. The plaintiff is the owner of a piece of land situate, lying and being at Babban Giji Quarters, Kano and is more is particularly known and referred to as plot No.512.

4. That the plaintiff was issued with both letter of grant and Certificate of Occupancy in respect of the said plot No.512 situate at Babba Giji Quarters, Kano. The said letter of grant and certificate of occupancy No.LKN/RES/86/ 1577 issued on the name of the plaintiff are hereby pleaded and will be relied upon at the trial.
5. That sometime in December, 1989, the plaintiff visited the said plot No.512 and discovered some structures thereon which were later explained to belong to the defendant.
6. That when the plaintiff confronted the defendant he said that the plot of land belongs to him as he has purchased same from one Alhaji Adamu Ado, and even brought out occupancy permit No.5339 allegedly issued in respect of the plot No.512. The said occupancy permit No.5339 is hereby pleaded and, the defendant is hereby put on notice to produce the same at the hearing of this action.
7. That as a result of the averments contained in paragraph 6 above the plaintiff wrote a letter of complaint to the Commissioner of Police in charge of the State D.I.I. and pleaded with him to investigate the issue. The said letter written by the plaintiff on the 14th of December, 1989, is hereby pleaded and will be relied upon at the hearing of this action.
8. That consequent upon the plaintiff’s complaint the Commissioner investigated the matter at the land and survey division of the Military Governor’s office Kano, where it was confirmed that the said occupancy permit No.5339 allegedly issued in respect of plot No.512 at Babban Giji is doubtful as no record exist for it, and that the only occupancy permit No.5339 that was issued from that office was in respect of plot No.1049 situate at Goron Dutse and owned by one Alhaji Kabiru Abdullahi. The Photostat copy of the letter written by the then land and survey division of the Military Governor’s office on the 6th of March, 1990, with reference No.RES/81/1761/26 to the Commissioner of Police in charge of Directorate of investigation is hereby pleaded and will be relied upon at the trial of this action.”

The appellant who was the defendant at the trial court filed his statement of defence dated and filed on 27/5/91 and I consider paragraphs 3, 4, 5, 6, 7, 8, 10, 11 and 15 relevant in the determination of this appeal. They are as follows:

“3. The defendant deny paragraphs 3 and 4 of the statement of claim and put the plaintiff to the strict proof of the averments contained thereon.

4. With reference to paragraphs 3 and 4 of the statement of claim the defendant aver that the said plot 512 was allocated to one Alhaji Adamu Ado, sometime in 1982. The occupancy permit issued in the name of the said Alhaji ado dated 22/11/82 is hereby pleaded.
5. With further reference to paragraphs 3 and 4 of the statement of claim the defendant aver that he acquired title from the said Alhaji Adamu Ado, sometime in 1983 and thereafter, took possession of the said plot of land and has since being exercising maximum acts of control over the said plot of land. The purchase receipt issued in the name of the defendant is hereby pleaded and will be relied upon at the trial of this action.
6. The defendant deny paragraph 5 of the statement of claim and aver that the plaintiff did not visit the said plot of land in December, 1989, or at any time at all in or prior to 1989.
7. The defendant admit paragraph 6 of the statement of claim and further aver that he completed the building on the said plot 512 situate at Babban Giji quarters, Kano as far back as July, 1988.
8. The defendant is not in a position to deny or admit the contents of paragraph 7 of the statement of claim but put the plaintiff to the strict proof of same.
9. With reference to paragraph 8 of the statement of claim, the defendant aver that the occupancy permit number 5339 issued over plot number 512 Babban Giji quarters, Kano, is genuine as same was issued by the proper authority and not doubtful as alleged in paragraph 8 of the statement of claim.
10. With further reference to paragraph 8 of the statement of claim the defendant aver that investigation conducted at the land and survey division of the Military Governor’s office, Kano, shows that plot 512 Babban Giji quarters, Kano was never allocated to the plaintiff.
11. With further reference to paragraph 10 of the statement of claim the defendant aver that he completed the erection of the building as far back as July, 1988, and has been residing there without hinderance from the plaintiff or anybody at all.

Whereof the defendant say the plaintiff’s claim is frivolous, vexatious, an abuse of legal process and ought to be dismissed with substantial cost.”

At the trial court, two witnesses testified for the respondent and tendered 9 documents in evidence in support of the case of the respondent, while three witnesses testified on behalf of the appellant and tendered 3 documents in support of the appellant’s case at the trial court. The evidence adduced by the parties is contained at pages 10 – 54 of the printed record. At the conclusion of the evidence and address by their counsel, the learned trial Judge at pages 88 – 89, inter alia held:

“The oral evidence of both P.W2 and P.W2 as well as Exhibit A, E, E, G, H and J (the file in respects of RES/86/1577) particularly, the report of investigation made by the land and survey directorates dated 6/3/90 addressed to the Commissioner of Police, Kano, which was earlier tendered for identification and subsequently tendered in exhibit 1 strengthen ownership of plot 512 on the plaintiff and on the other hand, the oral testimony of PW2 and the letter of 6/3/90 contained in Exhibit 1 indicate that occupancy permit exhibit C, relates to plot No.1049 at Goron Dutse and is granted to one Alhaji Kabiru Abdullahi and not to Alhaji Adamu Ado (DW3) and that occupancy permit 5339 (Exhibit C) for plot 512 at Babban Giji is doubtful.

I believe this story as the testimony of DW1 as well as PW2 has not been minitured under cross-examination, although DW3 has identified exhibit C as the allocation document for plot 512 which was brought him by members of the campaign team of Governor Abubakar which plot he later sold to the defendant for N6,000.00, he admitted under cross examination that when he received exhibit ‘C’ he did not know where the plot covered by that exhibit C was and that it was on Salisu Abdu a business at Kwalli Primary School, Kano, who showed the allocation of the plot in exhibit C was…….From the foregoing, plot No.512 at Babban Giji was granted to the plaintiff and not to DW3 Adamu Ado and that Exhibit C relates to a piece of land in Goron Dutse. The consequence of this is that Exhibits DWA and DWA1 A, which are mere purchase receipt cannot counter legal title to the land in dispute on the defendant.”

The learned trial Judge in conclusion held,

“From the total of the evidence adduce, I find as fact:-

1. That the plot No.512 situate at Babban Giji which is the subject matter of this suit was granted to the plaintiff, Alhaji Bala Mahmoud Yakasal.
2. That occupancy permit No.5339 (Exhibit C) relates to plot No.1049 at Goron Dutse, and was granted to one Alhaji Kabiru Abdullahi and not to plot 512 at Babban Giji consequently, I hold that the land in dispute, plot 512 of Babban giji belongs to the plaintiff, Alhaji Bala Mahmoud Yakasal.”

The facts of this appeal are simple and straight forward as can be gathered from the pleadings. The respondent, a businessman was resident in Kano within the jurisdiction of the Kano State High Court, while the defendant was resident at the material time at Baban Giji Quarters, Kano. The respondent claimed the title of the piece of land situate lying and being at Babban Giji Quarters, Kano, known as plot No. 512 and in his claim of title to the said land, the respondent relied on the letters of grant and certificate of occupancy on the same plot number 512 situate at Babban Giji Quarters Kano. The respondent in his statement of claim pleaded the Certificate of Occupancy No. LKN/RES/86/1577 issued in the name of the respondent. That sometimes in December, 1989, when the respondent visited the said plot, he discovered to his chagrin some structures on the plot which he later learnt belonged to the appellant.

According to the respondent, when he confronted the appellant, the appellant informed him that the plot in question belong to the appellant having purchased it from one Alhaji Adamu Ado. In support of his claim, the appellant, showed the respondent the occupancy permit No.5339, which the appellant claimed was issued to him in respect of the said plot NO.512, Babban Giji Quarters Kano. The appellant claimed that the said plot No. 512 was allocated to one Alhaji Adamu Ado sometimes in 1982 and the appellant relied on the occupancy permit issued to Alhaji Adamu Ado dated 22/11/82.

According to the appellant, he acquired title over the said plot from Alhaji Adamu Ado, since 1983 and since then he has been in possession, exercising maximum act of control over the said plot placing reliance on the purchase receipt hence the institution of the action leading to this appeal.

Dissatisfied with the judgment of the learned trial Judge, the appellant at pages 138 – 139 filed a notice of appeal dated 22/6/98, containing one ground of appeal, the omnibus ground of appeal which reads:

“1. That the decision cannot be supported having regard to the weight of evidence before the court.

Further grounds will be filed upon receipt of the record of proceedings.”

In accordance with the Rules of Practice and Procedure of this Court, briefs were settled with the filing of the appellant’s brief, respondent’s brief and a reply brief.

The appellant at pages 3-4 of the appellant’s brief formulated the following issues for determination in this appeal:

“(a) Whether considering exhibits B, D, G and H, there is any truth ascertainable that the Respondent indeed applied for and was given the said plot No. 512 at Babban-giji Quarters, Kano.

(b) Whether even if exhibits B, D, G and H were inconsistent in themselves or misleading could still confer title of plot No.512 onto the Respondent.

(c) Whether if exhibit C and the testimonies of the Appellant/Defendant and his witnesses are considered could be enough to show the Appellant as the owner of the Plot NO.512 at Babban giji Quarters, Kano.

(d) Whether the lower court, High Court, Kano, was right in given its judgment without visiting Babban-giji to ascertain the Plot NO.512, especially as scheduled to the Certificate of Occupancy talked of plot No.512, so also occupancy permit in exhibit C and the assertion of letter dated 6/3/90.

(e) Whether the judgment is in breach of Section 258(1) of the 1979 Constitution.”

The respondent on the other hand with the leave of this Court granted on 4/10/04, filed the Respondent’s brief of argument, raising a preliminary objection to the competence of the appellant’s issues numbers (a), (b), (c) and (e) contained in the appellant’s brief filed on 20/1/04 and thereafter formulated one issue for determination in this appeal in the alternative, as follows:

“Whether the decision of the lower court can be supported having regard to the weight of evidence before it.”

The respondent counsel in accordance with the provisions of Order 3 rule 15 of the Rules of this Court, 2002, filed a separate Notice of Preliminary Objection which was subsequently incorporated in the respondent’s brief at page 2 – 3 of the respondent’s brief. The Notice of preliminary objection reads:

“TAKE NOTICE that the Respondent herein intend, at the hearing of this appeal, to rely upon the following preliminary objection, notice whereof is hereby given to you, and will move the court for the following orders:

(i) AN ORDER striking out or dismissing the appeal as incompetent.

(ii) Any further or other order(s) which the Honourable Court may deem fit to make in the circumstances.

TAKE FURTHER NOTICE THAT the Grounds for the Objection are that:

a. “The Appellant’s issues (a), (b), (c), (d) and (e) contained in the Appellant’s brief of argument filed on 20th January, 2004 was not distilled from the sole Ground of Appeal filed before this court on the 22nd day of June, 1998.

b. The Appellant’s Grounds of appeal Nos. 1, 2 and 3 in the Appellant’s Brief of Argument dated 7th day of July, 2003 and filed on 20th January, 2004 was filed not in accordance with the Provisions of Order 3 Rule 2 sub-rule 5 of the Court of Appeal Rules, 2002.

c. The Appellant did not sought for neither was he granted leave to argue the Grounds of Appeal Nos. 1, 2 and 3 as additional grounds of appeal.

DATED THIS 4TH DAY OF OCTOBER, 2004.”

It is incumbent on me to first resolved the objection before proceeding to consider the appeal depending on the outcome of my resolution of the objection.

Arguing his objection in the respondent’s brief dated and filed on 4/10/04, Suleiman Abdulkadir, Esq, commenced by stating that the incompetence of these issues stated above emanates from the fact, that they are not distilled from the sole omnibus ground of appeal filed before this Honourable Court and reproduced the sole ground of appeal as well as the issues at page 3-4 of the respondent’s brief. It is submitted by the learned Counsel for the Respondent that an appellate court can only hear and decide on issues raised from the grounds of appeal before it and any issue which is not covered by the ground of appeal must be struck out as being incompetent.

He elaborated that the purpose and essence of formulating issues for determination is to narrow down the points or issues in controversy between the parties in the interest of accuracy, clarity and brevity in order to assist the court in arriving at a more judicious and proper determination of the appeal. It is contended by the learned Counsel for the respondent that issues (a), (b), (c), (d) and (e) contained in the appellant’s brief of argument were not distilled from the sole appellant’s ground of appeal and are also in excess of the said ground of appeal placing reliance on BARIDAM V. STATE (1994) SCNJ 10, ANIE V. UZORKA (1993) 9 SCNJ 223, 228 – 230, ABUTU V. ONYEDIMA (2004) FWLR 1179 AT 1186, HAWAD INTERNATIONAL SCHOOL LTD V. MIMA PROJECT VENTURE LTD (2004) FWLR 963. He further argued that an issue that does not relate to any ground of appeal is deemed incompetent and same must be struck out and urged the court to so hold.

It is further contended that the appellant’s grounds of appeal numbers 1, 2, and 3 argued in the appellant’s brief of argument were not filed in accordance with the provisions of Order 3 rule 2(5) of the Rules of this Court, hence grounds of appeal, numbers 1, 2 and 3 are equally incompetent as no leave of the court was sought and obtained before filing same.

Learned Counsel for the respondent further argued that it is the issues formulated for determination that are argued and not the grounds of appeal as is the case in this appeal. Reference was made to VULCANGASES LTD V. G. F. INDUSTRIES A.G. (2001) 9 NWLR (PT.719) 646, TALABI V. ADESEYE (1972) 8 – 9 S.C. 20 by learned Counsel to the respondent, in support of his submission. Relying on ANIE V. UZORKA(supra), learned Counsel for the respondent stressed that the leave of the court must be sought and obtained before filing grounds of appeal on fresh issues or points. He concluded by stating that grounds 1, 2 and 3 are incompetent and should be struck out.

In the appellant’s reply brief dated 8/11/04 filed on 10/11/04, learned Counsel for the appellant, Ibrahim Mohammed, Esq., in reply to the preliminary objection, submitted that the appellant repeats and still maintain the first and only one ground of appeal in the Notice of appeal and the issues formulated, for determination.

Referring to paragraph 3 of the respondent’s brief, learned Counsel for the appellant stated that the issues numbered (a) – (e) contained in the appellant’s brief were distilled from the first and only ground of appeal dated 22/6/98.

Instead of replying to the issues raised in the preliminary objection, by the learned Counsel for the respondent, the appellant’s counsel dissipated more time in further arguing the appeal in the appellant’s reply brief.

He however in conclusion cited ALH. M. J. IBRAHIM-QHIDA & 5 ORS. V. MIL. ADM. KOGI STATE (2000) 12 NWLR (PT.680) 24, EKWUJO V. OMISADDU (2000) 3 NWLR (PT.647) 95 and TINUBU V. KHALIL AND DIBBAO TRANS LTD. (2000) 11 NWLR (PT.677) 171 apparently in support of his position.

As conceded by the learned Counsel for the appellant, in his reply brief, only one ground of appeal, the omnibus ground of appeal contained at pages 138 – 139 was filed in this appeal. There is no doubt whatsoever that issues (a) – (e) formulated at pages 3 – 4 of the appellant’s brief cannot be said to have been distilled from the sole ground of appeal. In the case of CHIME V. CHIME (2001) 3 NWLR (PT.701) 527 at 550, the Supreme Court of Nigeria held that where an issue is not hinged to a ground of appeal, the issue is incompetent and must be struck, out. Where an issue formulated for the determination of appeal does not relate to any ground such issue is unarguable and incompetent. See AKPAN V. THE STATE (1994) 9 NWLR (PT.368) 347; MOHAMMED GARBA V. THE STATE (2000) 6 NWLR (PT.661) 378 and MONDAY ADU V. THE STATE (2001) 10 NWLR (PT.722) 668 at 675.

Issue for determination in an appeal must be formulated to fall within the scope of the ground filed by the appellant, to expand the issue beyond the frontiers of that scope will be criticizing and challenging the judgment of the lower court for what it neither said nor did. See EGBA V. ALHAJI (1990) 1 NWLR (PT.128) 546 and ONWUMER V. THE STATE (1991) 4 NWLR (PT.186) 428 at 445. An issue may encompass two or three grounds of appeal in one issue, but it is incompetent to formulate more issues than the grounds of appeal. See ABISI V. EKWUEALOR (1993) 6 NWLR (PT.302) 643; AWONIYI V. REGD. TRUSTEE AMORC (2000) 10 NWLR (PT.676) 522; GURARA SEC. AND PIN LTD V. T.I.C. LTD. (1999) 2 NWLR (PT.589) 29, OGONMOKUN V. MIL. ADM. OSUN STATE (1999) 3 NWLR (PT.594) 261. It is the law that issue or issues formulated for determination should be argued not grounds of appeal. See FINNIH V. IMADE (1992) 1 NWLR (PT.219) 511 at 534.

Applying the principles of law enunciated in the cases cited above to the instant appeal where the appellant filed only one ground of appeal, the omnibus ground of appeal, the issues formulated numbered (a) – (e) at pages 3 – 4 of appellant’s brief, it can clearly be seen that the said issues did not arise from the sole ground of appeal as a result they are not hinged to a ground of appeal but left hanging in the air, without any ground of appeal to stand on consequently the issues are incompetent and must be struck out. Again, the appellant’s formation of issues (a), (b), (c), (d) and (e) from a single ground is formulation of issues far in excess of the ground contrary to the rule governing brief writing. Another issue raised by the learned Counsel for the respondent in his objection is that the appellant after formulating issues for determination, abandoned them and argued the grounds in this appeal instead of issues.

The law is well settled that a point raised for the first time can only be argued with the leave of the court. See FADIORA V. GBADEBO (1978) 3 S.C. 29. This is because an appellate court’s jurisdiction is only to correct the errors of the court below on the issue and to know in what respect it can exercise its supervisory jurisdiction to correct any error of that court. See PORNELL V. THE GREAT WESTERN RAILWAY (1876) 1 Q.B.D. 636.

In this instant appeal, no leave was sought and obtained to file and argue fresh or new issues. I therefore, agree with the submission of the learned Counsel for the respondent in respect of the preliminary objection that the issues formulated from a single ground of appeal and the submission of the learned Counsel for the appellant in this appeal based on the grounds of appeal rather than issues are incompetent. In the result, I uphold the objection of the learned counsel for the respondent and hereby struck out both issues (a), (b) (c), (d) and (e) and the submissions of the learned Counsel for the appellant in this appeal on grounds of appeal at pages 2-5 of the appellant’s brief.

As it is now although the appellant has a competent ground of appeal, the only ground of appeal filed by the appellant, the omnibus ground of appeal, he has not formulated an issue arising from the said sole ground of appeal. All the same since there is a competent ground of appeal, I must proceed to determine the appeal on the sole ground of appeal since I have the power to formulate or reformulate an issue or issues. However, fortunately for me, the respondent appears to have conceded to the fact that the sole ground of appeal is a competent ground of appeal and has even formulated an issue for the determination of this appeal on the said ground depending on the outcome of his objection. The issue has earlier been reproduced in this judgment.

From the sole issue, what I am to consider in resolving the issue is whether there is evidence to sustain the judgment of the learned trial Judge.

Evidence in accordance with the pleadings of the parties was led at the trial court, but I intend for the purpose of the determination of this issue to. refer only to part of the evidence of PW.1, PW2, DW.1 and DW3, which I consider relevant.

PW.1 in his evidence testified as follows:

“PW.1: Moslem Speaks Hausa Affirms:-

My full names are ALHAJI BALA MAHMUD YAKASAI. I live at No. 140 Daurawa, Maiduguri Road, Kano. I am businessman I know the defendant, Alhaji Ubba Garba. Sometime in December, 1989, I visited my plot of land at Babangiji (Plot No.512) I saw some digging holes within the piece of land and also met some workers there. I asked the workers as to who directed them to do the diggings on the piece of land. The defendant was around too and Mr. Uba Garba, the defendant, responded by stating that it was he who directed the worker to do the diggings on the piece of land. On getting this reply, I asked the defendant as to how he came about this piece of land. The defendant then asked me to accompany him to one Mr. Ya’u so I took the defendant in my car to Mr. M. Ya’u at Babangayi (Kasara). The defendant introduced me to the M. Ya’u as the person who interrupted the workers from going on with the work at the piece of land, M. Ya’u asked me at where I was living. I told M. Ya’u that I was living at Daurawa, Maiduguri Road, Kano. Then M. Ya’u asked me to come back home with a promise that he would come and meet me at my house.

The following day M. Ya’u and in the company of one Abdulkadir came and met me at home. Mr. Ya’u asked me as to whether I was the owner of the land and my reply was in the positive, that is, the piece of land is mine. Thereafter, I showed a letter of grant in respect that piece of land to Mr. Ya’u and Mr. Abdulkadir. After I showed the letter of grant to both gentlemen, they told me that they had agreed that the Plot of land belongs to me but they like the matter to be settle. In other words, they want a settlement. I told them that if they really liked any settlement, then the defendant should vacate from the plot and should also refrain from going on with any construction work on it.

The letter of grant is in the name of Alhaji Bala Mahmud Yakasai. There is a number on it. It is LKN/RES/86/1577 in respect of Plot No. 512 at Babban giji. If I see that letter I can identify it by my name and the number which I have just stated. (Witness is shown the document).

This is the letter of grant I am talking about.

Mr. Abdulkadir:- My Lord, I seek to tender this document in evidence.

Mr. Obaje:- We have no objection against the admissibility of this letter of grant.

Court:- A letter of grant No. LKN/RES/86/1577 in respect of Plot No. 512 of Babangiji, dated 14/11/88 is hereby received in evidence and marked as Exhibit A.”

PW.1 continues:

“I have another document apart from Exhibit D to indicate that I am the owner of the piece of land in dispute. I have a Certificate of Occupancy over the piece of land. It is with the Bank of the North Nassarawa Branch. I mean the certificate of occupancy in respect of that piece of land is with the Bank of the North Nassarawa Branch, Kano. I made efforts to get the Certificate. I told my Solicitor to write the Bank of the North to release the Certificate of occupancy. The Bank has refused to released it, but the Bank has written to my solicitor on that at now the original copy of the Certificate is with the Bank of the North. The certificate is with the Bank because the Bank granted me a loan upon which a deposited the Certificate of Occupancy with the Bank. Even though, I do not have the original copy of that Certificate, I have a certified true copy of it. It was the Bank that gave me a photocopy of the Certificate. I can identified the certificate by my name on it- that Alhaji Bala Mohamoud Yakasal the number of the Certificate RES/86/15776. The letter written by the counsel to the plaintiff to the Bank and its reply from the Bank and the Certificate of Occupancy. (These are the documents I have been talking about).

Mr. Abdulkadir- We seek to tender these document in evidence.

Mr. Obaje- We have no objection.

Court- The three documents are received in evidence and marked as follows-

(1) A letter dated 7/9/93 addressed to the Company secretary legal Adviser, Bank of North (nig) Ltd. Kano marked Exhibit E.

(2) A reply to the above letter which is Dated 4/11/92 as Exhibit ‘F’.

(3) A photo copy of the Certificate of Occupancy dated 14/11/88 and numbered LKN/RES/86/1577 as Exhibit ‘C’.”

PW.2 testified as follows:

“PW2 Moslem Speaks English and Affirms. My full names are Shehu Abdul Mumin Kabira. I live at No.175 Kabira Quarters, Kano City. I am a Civil Servant, I work with the land and Regional planning Directorate, Kano State as a survey. I do not know both the Plaintiff and the Defendant in this case, I know plot No. 512 at Babban Giji Quarters, Kano, I can recollect that sometime in 1990, the police wrote to my Directorate, asking for information regarding the real owner of plot No. 512 at Babban Quarters, Kano. I can identify the letter from the police……”

PW.2 continues:

As I was saying, the police wrote a letter in respect of Plot No.512 at Babban Giji Quarters, Kano, sometime in 1990, and the letter was address to our Director-General, it was written by one Chief Superintendent of Police, A.U. Belel. The original copy is in the file of the land and survey Directorate (Witness is shown the document, this the letter written by the police in respect of plot No. 512 (PW2 identifies both the original and the duplicate).

Mr. Abdulkadir: Since both the original and the photocopy of it have been compared by the court, we wish to tender the photocopy.

Mr. Obaje;- We have no objection.

Court: A photocopy of the letter “Titled Investigation activities” of 17/8/90, sent by the police to the Director-General, Land and Survey Directorate, Kano is received in evidence marked exhibit ‘H’.”

PW.2 continues:

“PW2 (Shehu Abdulmamini Kabawa)

(He is reminded that his still on oath).

Mr. Abdulkadir:- We stopped after tendering exhibit H.

Court:- That is correct. This was 5/4/94.

PW2: (Continues with his evidence in Chief) the process of obtaining land under our department is as follows:-

(1) First on has obtain a form an application form the land Department.

(2) After filling the form one submit it with 3 passport photograph together with an application fee.

(3) Then, a file will be opened and a file number is given to the applicant.

(4) Thereafter, an applicant is recommended for a lot by the Director-General land and

(5) The State Governor will there give approval.

(6) If the Governor approved a letter of grant is given to the applicant.

(7) After collecting the letter of grant, an applicant is asked to map survey and processing fees.

(8) After mapment is there, fees, a certificate is prepared and sent to the Governor for his signature.

(9) After the certificate is signed by the Governor, the certificate is registered by the Deed Registry/Registrar at the Land Department.

(10) Thereafter, the certificate is issued to the owner either directly or through any person authorized by him.

In respect of this plaintiff in this matter, these processes had been followed regarding the land in dispute. We have all the documents in respect of the land in dispute in this case.

I can identified these document because the name of the plaintiff, his photographs, his signature and the plot number are all here in the file. We have both the original copies as well as the certified true copies. We wish to tender the certified true copies. Court to the Registrar: Show the documents to Mr. Obaje.

Court: file No.RES/86/1577 containing certified true copies of the document relating to the land in dispute in this suit is hereby received in evidence and marked Exhibit 1.”

“PW2 (continues with his evidence in chief)

Having regard to the processes contained in Exhibit 1, the plot of land in dispute could not be issued to more than one person. Moreso, any plot allocated is charted on our intelligence sheet so that any application in respect of that plot cannot be entertained.

There is an occupancy permit, it is number 5339 is allocated in respect of plot No.049 at Goron Dutse, Kano, as proceed record. That particular plot was granted to one Alhaji Kabiru Abdullahi, as a resettlement which is a land of compensation by the Government.

As far as our investigation is concerned, the land in dispute in this suit was granted to the plaintiff, Alhaji Bala Mohammed Yakasai under RES/86/1577. That is all I know.”

PW.2 was cross-examined by counsel to the appellant and he said:

“As far as our record is concern, this plot NO.512 at Babban Giji was granted to Alhaji Bala Mohammed Yakasai at Babban Giji was granted to Alhaji Bala Mohammed Yakasai, who is plaintiff in this suit.

There is no question of double allocation as far as plot No.512 at Babban Giji is concerned, since it is clear from the record that it was granted to the plaintiff.”

“DW1: Moslem, speaks Hausa, affirmed, my full names are Alhaji Uba Garba. I live at Babban Giji quarters, Kano, I ask a trader I know the plaintiff in this case. I also knew one Alhaji Adamu Ado. I know plot No.512 at Babban Giji quarter Kano. I know the original owner of plot No.512. It was Adamu who sold (i.e. about the year 1983). I have evidence of purchase. That Adamu Ado gave me as a result of the sale, the following documents.

(1) A receipt and,

(2) Occupancy permit. I can identify the receipt given to me by Mr. Adamu, in that it is torn by the right hand side and stained by water………. I was given a receipt after the sale of the plot No.512 to me because there are my name, the name of the person who sell it. M. Adamu Ado and the witnesses to the Sale namely. M. Ya’u Alhaji Ibrahim and Ephram. The amount sold to me is also N6,000.00. It is about 12 years old now (witness is shown to document) this is the receipt given to me by owner of the plot Adamu Ado, after the sale of the plot to me.”

“DW3:- My full names are Adamu Ado, I live at Gyadi Gyadi, Jo’oji Quarters, Kano, I am an Arabic teacher. I do not know the plaintiff in this court. But I know the defendant in this case. I know plot No.512 situate at Babban Giji quarters, Kano.

The said plot No.512 at Babban Giji Quarters was allocated to me, by Governor Abubakar Rimi, the civilian Governor of Kano State, during the 2nd Republic. I was among the supporters of Governor Rimi, who assisted him during his campaign for Governorship in 1970, and when he won the election, he donated the plot to me as a token of appreciation. I have a document to show that plot No.512 at Babban Giji was allocated to me.

Court: Both Exhibit DW and DW1 are identified by the witness.

DW3:- (continues) I sold the plot a year after its allocation. The defendant has therefore been in possession of the plot for 12 (twelve) years. Exhibit C was given to me when the plot was allocated to me. Exhibit was brought to me by some members of the campaign team of the Abubakar Rimi, former Governor of Kano State.”

On cross-examination, D.W.3, said:

“The court plot was allocated to me by Abubakar Rimi. I was a member of his campaign team, during the Governorship election and when he won the election, he gave me this piece of land as a token appreciation (Witness is shown Exhibit C). This is the paper that was given to me following the allocation of the said plot to me. There is also a receipt evidencing the sale by me of the said plot to the defendant.

It is true that at the time I was allocated this plot, I did not know where it was situated. Exhibit C was in respect of that plot.

The number of plot given to me at Babban Giji was 215. It is true that when I was allocated the plot, I did not know where it was situated. …. I cannot read this document C Exhibit ‘C’ is read out to the witness by the court (Registrar). Notwithstanding Exhibit ‘G’, I do not agree that the land in dispute belonged to the plaintiff in this case;”

From the evidence adduced by the parties before the trial court, part of which I have taken the pains to reproduce in this judgment, it is crystal clear that the respondent who was the plaintiff before the trial court relied on Exhibit “G”, a certified true copy of a certificate of occupancy dated 14/11/88 and numbered LKN/RES/86/1577 issued to him by the Kano State Government, while the appellant relied on Exhibit C, occupancy permit and the sale receipts, exhibit DW and DW1, the English and Hausa version of the sale receipts respectively in respect of the land in disputed which the appellant claimed to have purchased from one Alhaji Adamu Ado, DW3. However, PW2 confirmed in his evidence that plot NO.512 at Babban Giji Quarters, Kano, belongs to the respondent and that there was no double allocation in respect of the said plot from their records while the occupancy permit number 5339 was allocated in respect plot No.049 at Goron Dutse to one Alhaji Kabiru Abdullahi and not to the appellant. It is interesting to observe that DW3, Adamu Ado from whom the appellant purchased the plot in dispute was unable to give evidence as to either the measurement of the plot or its location.

It is the law that a certificate of occupancy properly issued by a competent authority raises a presumption that the holder is the owner in exclusive possession of the land in respect thereof. The certificate also raises a presumption that at that time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person has a better title to the land before the issuance of the certificate of occupancy then the court can revoke it. See HARUNA V. OJUKWU (1991)7 NWLR (PT.202) 207, DABUP V. KOLO (1995) 9 NWLR (PT.317) 254 – 269.

The land in dispute in this appeal is known to the parties and both of them identified it as plot No.512, Babban Giji Quarters Kano. See CHUKWUEKE V. OKORONKWO (1999) 1 NWLR (PT.587) 410.

Since the land in dispute is known to the parties, the question of visiting the locus in quo does not arise at all in this appeal, hence, the case of SEIMOGRAPH SERVICE V. AKPORUOVO (1974) S.C. 95 relief upon by the learned Counsel for the appellant is inapplicable in this appeal as there is no conflict in the evidence as to the identity of the land in dispute. Having regard to the overwhelming evidence adduced by the respondent in support of his claim, I have no reason whatsoever to interfere with the findings of the learned trial Judge. I therefore resolved the sole issue in the affirmative in favour of the respondent against the appellant.

In the final analysis, I hold that this appeal lacks merit and is hereby dismissed. The judgment of the learned trial Judge, Atiku, J, of the Kano State High Court in suit No.K/609/90, delivered on 1/6/98 is hereby affirmed by me. I award costs assessed at N5,000.00 to the respondent against the appellant.

Other Citations: (2005)LCN/1863(CA)