Garkuwa Pina V. Jagaba Mai-angwa (2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

Sometimes in 1993, one Masinja Tanko claimed against the Respondent herein a declaration of title to a piece of land at the Area Court, Kuta, in Niger State. During the trial the Respondent who was then the defendant to that action was asked whether he has brought his witnesses to the Court. This is what he told the Court:-

The person I have brought is only one. He is Garkuwa Maikama and he is the one who gave me this piece of land and I continued borrowing it to other persons about six of them in number. And Garkuwa Ibrahim Makama is present in Court now and I want him to testify before this Court.

In his evidence before the area Court Kuta, the Appellant herein who was called by the Respondent testified as follows:-

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I have heard Masinja Tanko the plaintiff and Maianguwan Jaba the defendant, but what I want to say to this Court is that there is no doubt that I borrowed Maianguwan Jeba the disputed farmland. But it is not gift and the disputed farmland is mine I inherited it from my grandfather. So I was the one who borrowed the land the land to Maiaguwan Jaba and there is no doubt that I know that borrowed out the same land to other persons. And the reasons why I borrowed the land to Maianguwan Jaba is because his father married my Aunt. So the land is mine and not for Masinja Tanko because Masinja Tanko has no piece of land on the disputed farmland.

In resolving the issue at stake, the area Court judge kuta proffered the following solution:-

Since it was Garkuwan Ibrahim Makama who borrowed the land to Maianguwan Jeba, this Court advises you, Masinja Tanko, the plaintiff to sue Garkuwan Ibrahim so that you can call your own witnesses, the Court adjourn this case from 5/7/1993 to enable Masinja Tanko the plaintiff to go home and discuss with his father whether to sue Garkuwan Ibrahim or to leave the matter.”

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After the case at Kuta, the Appellant sought to take back his farmland, but the Respondent refused to hand over the farm to him. As a result, the Appellant instituted an action against the Respondent at the Upper Area Court II holden at Minna in Niger State in which he claimed declaration of title over the disputed piece of land. At the hearing of the case, the Appellant gave evidence and tendered the record of proceeding at Kuta Area Court which was admitted and marked Exhibit 1. The Respondent testified for himself and called six witnesses. At the end of the trial and addresses by parties’ respective counsel, the trial Court in a reserved and considered judgment delivered on the 28th of December, 1998 allowed the Respondent to farm the portion of the farm he occupied to enable him get food. He was however barred from sub-letting the farm to anybody, except where he obtained the consent of the Appellant herein. The Respondent before this Court was dissatisfied with the decision of the Upper Area Court.

Being aggrieved, he lodged an appeal at the High Court of Niger State. After hearing the parties, the High Court allowed the appeal, set aside the decision of the Upper Area Court, Minna and ordered a retrial of the suit before another area Court in Kuta.

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The Appellant herein was dissatisfied with the decision of the High Court. He appealed to the Court of Appeal, Abuja Division. The Court of Appeal heard the appeal and in a reserved and considered judgment delivered on the 8th December, 2005 dismissed the appeal and varied the decision of the High Court by declaring title to the Respondent with cost of N5,000 in favour of the Respondent and against the appellant.

It is against the decision of the Lower Court that the Appellant has brought this appeal. The Appellant’s notice of appeal at pages 146 – 147 of the printed record of this appeal contains two grounds of appeal which I reproduce hereunder without their particulars as follows:-

1. The learned Justices of the Lower Court erred in law when they held that the admission by the Respondent (in favour of the Appellant) in a previous case between him and a third party on the same subject matter as the instant suit is not binding on him.
2. The learned Justices of the Lower Court misdirected themselves on the facts when in disregard of material contradictions they held that-

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“With such preponderance of evidence in favour of the Respondent the proper order to be made by the Appellate High Court should have been to award judgment in favour of the Respondent here Mai-Anguwa who was the Appellant in the Appellate High Court. l do so now.”

Parties filed and exchanged briefs of argument. Mr. Ibrahim Isiyaku, learned senior counsel for the Appellant formulated two issues for determination of this appeal. Those issues are reproduced hereunder as follows:-

(1) Whether, in the circumstances of this case, the Respondent’s earlier statement in Exhibit 1 that the land in dispute belongs to the Appellant and that the Appellant placed him in possession is not relevant in the instant suit.

(2) Whether on a balance of probabilities, the Respondent, and not the Appellant proved better title.

Mr. Philips Olusola, learned counsel for the Respondent adopted the two issues formulated by the Appellant.

In arguing the appeal, learned senior counsel for the Appellant called on this Court to hold that the Respondent’s statement in Exhibit 1 in which he admitted that the Appellant is the owner of the disputed piece of land is relevant and applies to stop the Respondent from

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denying the Appellant’s ownership of the land in question. In aid, learned senior counsel cited Alli vs Alesinloye (2000) 6 NWLR (Pt. 660) 177 at 215 paras D F; IGA & Ors vs. Amakiri & Ors (1976) 10 NSCC 610 at 616 lines 35 51.

In reply, learned counsel for the Respondent submitted that the proceedings in Exhibit 1 was between Masinja Sabon Gida and Maiangwan Jaba, quite distinct from the parties to the present suit, as such there was no room to have the present parties cross examine each other, since they did not testify as witnesses under oath. Learned counsel made reference to Section 26 of the Evidence Act and submitted that an admission is not a conclusive proof of the issues at stake. In a further argument, learned counsel submitted that the Area Court Kuta did not make any precise order in Exhibit 1 as to be able to create estoppel, as such the admission contained in Exhibit 1 cannot be said to be relevant as to determine the fate of the present suit. It is learned counsel’s view that the Lower Court rightly held that the conditions precedent to the admissibility of Exhibit 1 under Section 34 of the Evidence Act were not satisfied.

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In aid, learned counsel cites Odutola vs Paper Sack (Nig) Ltd (2007) 7 W.R.N.1 at 24.

In consideration of whether the provisions of the Evidence Act are applicable to the Area Court, the High Court of Niger State held at page 58 of the printed record of this appeal as follows:-

“To this submission, the Respondent’s counsel submitted to which we are in agreement, that the Lower Court was not bound by the provisions of the Evidence Act as far as the procedure before the Lower Court was concerned, and further, that the Lower Court was not bound by the provisions of the Evidence Act as the Act does not apply to the proceedings before that Court. We are also in agreement with the Respondents counsel that there is nothing in the Evidence Act which was in- applicable to proceedings before the Lower Court and that in proceedings before that Court all that is important is that substantial justice be done to both parties rather than form. Consequently, none observance of the rules of the Evidence Act by an Area Court in so far as such non observance does not occasion or lead to miscarriage of justice, prejudicial to fair hearing or

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against rules of natural justice shall not be interfered with by the Appeal Court. There is no doubt that the sections referred to by the Appellant as haven (sic having) been breached by the Lower Court are of the Evidence Act which do not strictly apply to the Court.

There was no appeal against the decision of the High Court that the Evidence Act, which is within the exclusive legislative list in the 1999 Constitution of the Federal Republic of Nigeria, is not applicable to the Area Courts. It is also not in evidence that Exhibit 1 was tendered for the purpose of operating as res judicata. The question of whether Exhibit 1 is a decision of the Area Court, Kuta or not, and whether it is a final decision or not, is irrelevant here. The High Court agreed that the admission by the Respondent herein in Exhibit 1 was made in a proceeding before the Area Court Kuta in a case in which the present Appellant was not a party, but was called to confirm as a witness, the admission by the Respondent and he did confirm the Respondent’s admission. Having so admitted the Appellant’s ownership of the disputed piece of land, the Respondent in

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my view is estopped from denying the Appellant’s ownership of the disputed piece of land by the application of doctrine of estoppel. Estoppel is defined by Black’s Law Dictionary 8th Edition at page 589 as a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.

The Respondent who was in possession of the disputed piece of land upon which his title was been challenged told the area Court kuta, that the land was not his, but that it belonged to the Appellant. He ran to the Appellant and told him that the land which you loaned to me is subject of litigation with a third party. He invited the owner to tell the Court that the land was his. The Appellant who was invited by the Respondent told the Court that he put the respondent on the disputed piece of land as a tenant. It will therefore be contrary to common sense and the doctrine of equity to conclude that such admission is irrelevant in the present case.

The Lower Court resolved the admission of the Respondent on the disputed land by relying on Section 35(1) of the Evidence Act which provides for when a statement may be

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Evidence. Their Lordships of Lower Court did not take into account the provisions of Section 26 of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990 which provides as follows:-

“Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of Part viii of this Act.

Section 151 of the said Evidence Act provides as follows:-

“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such believe, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such persons representative in interest, to deny the truth of that thing.”

Section 152 of the same Act provides as follows:-

“No tenant of immovable property or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property

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In Iga & Ors vs Amakiri & Ors (1976) 11 SC 1 at 12 13, this Court held that when there is an intentional representation that had been acted upon by the other party, the first party will be estopped from denying the existence of the state of affairs. See Lawal vs. Union Bank (1995) 2 SCNJ 132 at 145; Onamade vs. ACB (1997) 1 SCNJ 65 at 83.

The Respondent’s declaration that the disputed piece of land belonged to the Appellant was acted upon by the Appellant when he testified before the Kuta Area Court that he owned the land and that the Respondent was his tenant. Indeed the statement of the Respondent at Kuta Area Court was not evidence before that Court. It was an admission against interest, as such it was wrongly construed under Section 35(1) of the Evidence Act which deals with evidence in a previous Court proceedings.

Be that as it may, if the Upper Area Court is not bound to apply the provision of the Evidence Act, the High Court which heard the appeal from the Upper Area Court and the Lower Court had no jurisdiction to apply the provisions of the Evidence Act to the decision that emanated from the Upper Area Court.

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As I have stated elsewhere in this judgment, there was no appeal against the decision of the High Court where it held that the Evidence Act is not applicable to the Area Court. The Lower Court was therefore wrong to have applied the provision of the Evidence Act to determine whether Exhibit 1 is relevant or not. The High Court at page 59 of the printed record of this appeal stated that the Area Courts being Courts of law are required to observe the rules of natural justice and fairness. Be it under the rules of natural justice and fairness or under the Evidence Act, the justice of this matter is so clear, and that is that a man who is a gentleman should be bound by the words uttered by him. It is against natural justice and fairness for a person to approbate and reprobate when confronted with similar issue at two or more Fora. The first issue for determination of this appeal is resolved in favour of the appellant and the 1st ground of appeal upon which it is formulated is allowed. On the second issue for determination of this appeal, learned senior counsel for the Appellant submitted that the Appellant did not rely solely on Exhibit 1 to establish his title, but that he gave evidence in proof of his title.

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Learned senior counsel contended that the six witnesses called by the respondent gave contradictory evidence coated with lies and lack of knowledge of the identity of the land in dispute.

Finally, learned senior counsel urged this Court to set aside the order of the Lower Court and award title to the Appellant, as long possession on land cannot displace the title of the true owner.

In his argument in support of this issue, learned counsel for the Respondent submitted that the Appellant could not confirm the exact location or identity of the disputed land which is SINE QUA NON in an action for declaration of title to land. In aid, learned counsel cited Ilona vs Idakwo (2003) 32 WRN 121 at 135; Otanma vs Youdubagha (2006) 10 WRN 1 at 22. In a further argument, learned counsel submitted that the Respondent led evidence of long possession of the disputed land which he inherited from his late father and went on to specify the boundaries. According to learned counsel, the Respondent exercised acts of ownership by renting out portions of the disputed land to tenants on different occasions, whereas the Appellant could neither produce documents of title nor prove possession or acts of ownership.

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Learned counsel addressed the testimonies of the witnesses called by the Respondent and concluded by urging the Court to dismiss the appeal.

In my consideration of the first issue for determination of this appeal, I concluded that the Respondent having admitted in a previous proceeding between him and one Masinja Tanko Sabon Gida at Area Court Kuta that the disputed farmland belonged to the Appellant, is stopped from denying that fact. The law is settled that what is admitted needs no further proof. See Phoenix Motors Ltd v. Ojewunmi (1992) 6 NWLR (Pt. 248) 501; Ajuwon vs. Akanni (1993) 9 NWLR (Pt. 316) 182. The Appellant did not need to call additional evidence to prove his title to the disputed land. However, the Appellant gave evidence at the upper Area Court where he described the boundaries and the type of trees on the land. From the admission of the Respondent in Exhibit 1, it is very clear that both parties in this case know the quality and the quality of the disputed piece of land. In Olujinle vs. Adeagbo (1988) 19 NSCC (Pt.1) 625, this Court held:-

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“That it is now perfectly settled that a survey plan is not a sine qua non in every land case. This is especially so when both parties know the quantity and quality of the land in dispute between them. In this appeal both parties do know the quantity and quality of the land in dispute and as such as plan ceases to be of absolute necessity.

See Chief Daniel Allison Ibuluya & Ors v. Tom Benebo Dikibo & Ors (1976) 6 SC 97 at 107; Chief Sokpui vs. Chief Agbozo (1951) 13 WACA 241; Atolagbe vs. Shorun (1985) 1 NWLR (Pt.2) 360. Since parties knew the land in dispute, the issue raised by learned counsel for the Respondent with respect to the inability of the Appellant to describe the land is unnecessary. The Appellant in his evidence at the trial Court traced the root of his title to his great grandfather Ya’a from whom his father Wambai inherited the disputed land from. It is therefore my considered view that the Appellant successfully proved his title on balance of probability, since long and adverse possession cannot defeat the title of a true owner of land.

This issue is also resolved in favour of the Appellant and the ground 2 upon which it is formulated is allowed.

Having resolved the two issues in favour of the Appellant,

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this appeal shall be and it is hereby allowed. The decision of the Lower Court is accordingly set aside. In its place the decision of the upper Area Court, Minna is hereby restored.

The Respondent shall pay to the Appellant the sum of N200,000 as costs of prosecuting this appeal.

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SC.122/2006