Nafiu Gambo Haruna V. Alhaji Lawal Yaro (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Kaduna State delivered on the 24th of September, 2014 in suit No. KDH/2/13/2010. The genesis of the dispute before the lower Court (High Court of Justice, Zaria, Kaduna State) was that the respondent (then plaintiff) bought the property, subject matter of the litigation, from Alhaji Muhammed Sule Ringim. Alhaji Muhammed Sule Ringim bought the house from Alhaji Gambo Haruna (deceased), the father of the appellant (defendant at the lower Court). The respondent was given sale agreements of the transaction between himself and that of the transaction between Alhaji Muhammed Sule Ringim and Alhaji Gambo Haruna. He went to the Upper Sharia Court and obtained certificate of purchase, which is evidence of title to the disputed property. Thereafter, the appellant and his mother claimed that they had inherited the property as their share of the Estate of late Alhaji Gambo Haruna, the father of the appellant. The respondent did all he could to persuade the appellant from claiming title to the property to no avail. The respondent then decided

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to institute an action at the lower Court against the appellant, claiming as follows:
(a). A Declaration that the house known as No. 17 Jibga Road, Tudun Wada, Zaria belongs to the plaintiff.
(b). An Order of perpetual injunction restraining the Defendant, his agents, assigns and privies from interfering with the plaintiff’s possession of the house known as No. 17 Jigba Road, Tudun Wada, Zaria.
(c). special damages in the sum of N100,000.00 per annum from November 2005 till judgment is delivered.
(d). General damages in the sum of N1,000,000.00 (One Million Naira Only) for interfering with the plaintiff’s possession of his house and preventing him from rehabilitating same from the year of purchase till date.
(e). Cost of action.

Pleadings were filed, issue joined and the matter proceeded to trial. The respondent (as plaintiff,) called witnesses who testified in support of his claims. The appellant (as the defendant) called witnesses who testified on his behalf to prove his title to the property. After addresses of learned counsel to the parties, the learned trial Judge of the lower Court delivered his judgment on the 24h of

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September, 2014, granting all the relief sought by the respondent. Aggrieved by the decision of the lower Court, the appellant (then plaintiff) filed Notice of appeal against the decision of the lower Court on the 30th of September, 2014, on four (4) grounds. The grounds of appeal, without the particulars are thus:
GROUND ONE
The decision of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
GROUND TWO
The trial Court erred in law when it admitted and relied on all the documents (Exhibits A, B, and C) tendered by the respondent to enter judgment against the appellant on the sole ground that the appellant has not established that the land, subject-matter of the suit is in an urban area of Kaduna State, and thereby occasioned a miscarriage of justice,
GROUND THREE
The trial Court erred in law when it relied solely on the inadmissible documents to grant a declaration of title of the subject-matter to the respondent.
GROUND FOUR
The trial Court erred in law when it affirmed the void sales as between PW1 and appellant’s late father on one hand and as between PW 1 and

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the respondent on the other, when none of the purported sale transaction had the consent of the Governor of Kaduna State.

The appellant’s brief of argument dated 8th of May, 2015, was deemed filed on the 13th of October, 2015, wherein two (2) issues have been distilled from the 4 grounds of appeal on page 7 thereof. The respondent’s brief of argument was filed on the 2nd of November, 2015, wherein a sole issue has been culled from the grounds of appeal on page 5 thereof. Therefore, the issues to be resolved which would ultimately determine the appeal, either way, are these:
(i). Whether in the general circumstances of the case, the trial Court ought to take judicial notice of its proceedings and Ruling in the course of the trait and the extant Kaduna State (Designation of Land in urban Area) Order published by gazette in its determination that the Appellant failed to prove by evidence that the land, subject matter of this case’ is in an urban Area, which renders inadmissible Exhibits A, B, & C.
(ii). whether an instrument purportedly made to alienate a vested interest in land situate in an urban Area ought not to be governed by the

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provisions of Sections 22(1) and 26 of the Land Use Act, 1978.
(iii). whether or not the trial Court was right in entering judgment in favour of the Respondent and against the Appellant in the circumstance of this case.

ISSUE ONE
Obande Esq, did submit that the learned trial Judge erred in law when he held that the appellant failed to adduce evidence that house No. 17 Jigba Road, Tudun Wada Zana is in an Urban Area, therefore Exhibits A, B, and C could not have conferred title to the respondent, being inadmissible in evidence for that purpose. Counsel submitted further that the evidence of respondent under cross-examination admitted that the house in dispute is in the Urban Area. It has also been contended that, the lower Court ought to have taken judicial notice of a subsidiary legislature, that is, Legal Notice No, 4 of 1990 in Gazette No. 9 Vol. 24 of Kaduna State which designated Urban Area in Kaduna State, and relied on same. That if the learned Judge had taken judicial notice of same, he would have realised that the disputed property is within an urban Area, therefore Exhibit “A’, ?B? and ?C” could not have conferred

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title to the respondent. That a Court of law can take judicial notice of laws, subsidiary legislature etc, even though not admitted in evidence as held in the cases of Shone-Jason Ltd. v. omega Air Ltd. (2006), NWLR pt. 960 p. 1 and Adene v. Dantunbu (1994) 2 SCNJ P. 130; counsel cited and relied on Section 122 (1) and (2) of the Evidence Act, 2011 and the cases of Amusa v. State (2003) 4 NWLR Pt. 811 p. 595, Benson v. Ashiru (1967) NWLR P.184 @ 188; Finnih v. Imade (1992) 1 NWLR pt.219 p. 511 @ S32 to buttress the submissions supra.

On the evidential value of Exhibits “A”, ?B? and ?C? counsel contended that, by virtue of Section 3 and 34 (1) and (2) of the Land Use Act’ and the Kaduna State (designation of land in urban area) Order 1990, Legal Notice No. 4 of 3d May, 1990 published in Gazette No. 9, the property in dispute has been developed, and Alhaji Muhammed Sule Ringim having acquired customary title over the land before the coming into force of the Land Use Act, it has acquired a status of a deemed grant under Section 34(1) and (2) of the Land use Act, therefore Exhibit A, B, and C having not been issued in accordance with

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Sections 22 and 26 of the Act, are invalid, and should not have been admitted in evidence proving the title of the respondent to the disputed property as erroneously held by the lower Court. The cases of Sadikwu v. Dalorin (1996) 5 NWLR Pt. 447 p. 191; Gilbert onwuka & ors v. Ediala & Anor (1989) NWLR pt. 96 P. 182 and Adede v. Gwar (2009) 11 NWLR pt. 1099 p. 562 cited to reinforce the submissions supra. In conclusion, learned counsel adumbrated that:
(i) That the house No. 17 Jigba Road, Tudun Wada Zaria, is situated in an Urban Area and the learned trial judge ought to have taken judicial notice of this fact by virtue of its proceedings and provisions of the Kaduna State (Designation of land in Urban Area) Order 1990.
(ii)’ That any transaction purporting to alienate the vested interest in the said house, No. 17 Jigba Road Tudun Wada Zaria ought to comply with the provisions of Section 22(1) of the Land Use Act 1978.
(iii). That by virtue of Section 34 of the Land Use Act 1978, the said house No. 17 Jigba Road Tudun Wada, Zaria is deemed statutory right of occupancy and the trial Court to reject Exhibits A, B, and C as evidence of

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alienation of its title by virtue of Section 26 of the Land use Act 1978.
Counsel did urge that Issue 1 be resolved in favour of the appellant.

Is’Haq Esq, submitted that the evidence of pw 1 to pw 7, taken together with Exhibits A, B,and C proved the title of the respondent to the disputed property as required by law. That the evidence before the lower Court has not proved the assertion of the appellant that his father did not sell the house to Alhaji Mohammed Sule Ringim; rather he only borrowed money and used the property as collateral. As to whether the property in dispute is situated in an Urban Area of Zaria or not, counsel submitted, it is a matter of evidence. That if the learned trial judge had adverted his mind to the decision in the case of Ogu v. Nwaohia (2000) FWLR pt, 6 p. 922 @ 952, his ruling that the property was in an Urban Area would have been otherwise. Counsel pointed out that the learned trial judge took into consideration the decision in the case of Ogu v. Nwaobia supra, when he held in the judgment of the Court that it is a matter of evidence to prove whether a particular land is within an Urban Area or not, that being so, the

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appellant failed to adduce credible evidence to prove the location of the property by merely referring to the subsidiary legislation whereby certain areas in Kaduna State have been designated as Urban Area. On how to prove whether a particular parcel of land is within an Urban Area or not, the cases of Ogu v. Nwaobia (supra) and Adene v. Dantunbu (1994) 2 NWLR Pt. 328 P. 509 @ 525 were cited and relied on wherein it was held that, the evidence of a surveyor or a map showing clearly the area which has been designated as an Urban Area.

On the admissibility of Exhibits A, B, and C counsel submitted that, it all depends on what purpose it was tendered, whether as evidence of the existence of a contract of sale or to prove title to land as enunciated in the cases of ile Ind. (Nig) Ltd v, Aderemi (1999) 8 NWLR Pt. 614 P. 268 @ 277 and FMB v. Akinola (1998) 4 NWLR pt, 545 P. 325 @ 322. Counsel contended that Exhibits A, B, and C were properly admitted in evidence as purchase receipts, not to prove title to land. The case of Osagie v. Oyeyima (1987) 3 NWLR pt. 59 p. 144 cited to buttress the submission supra. On the contention that Exhibits A, B, and c were

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not registered, it was submitted that same were admitted to prove payment for the equitable in there acquired by the respondent’ subject to later consent of the Governor for the legal title. The cases of Okoye v. Dumez (Nig) Ltd. (1985) NWLR pt. 4 p. 783 and Usman v. Garke (1999) NWLR pt. 587 p. 466 were cited and relied on to reinforce the submission supra. Concluding, learned counsel submitted that:
(i). The Appellant did not establish by way of evidence before the Court below that the house in dispute is situated in an urban area thereby bringing the same within the provisions of the Kaduna State (designated of Land in urban Area) Order 1990.
(ii). The transaction between the parties was at contract stage as such does not require the Governor’s consent.
(iii). Exhibits A, B, and C are purchase receipts which confer on the Respondent’s equitable interest in the disputed house.
(iv). Exhibits A, B, and C as well as the evidence of the Respondent’s witnesses were rightly admitted and relied upon by the trial Court to establish the Respondent?s claim before it.

?Whether property (house) No. 17 Jigba Road Tudun wada, Zaria is

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within an urban area or not, I think it is pertinent to refer to the relevant law. Pursuant to Section 3 of the Land Use Act, the Kaduna State Governor, designated certain areas in the State as Urban Areas. In the exercise of this power the Kaduna State Government promulgated and published in its Gazettes, the Kaduna State (Designation of Land in Urban Area) Orders. The extant Order is published as Legal Notice No.4 of 1990 in the Kaduna State of Nigeria Gazette No.9, volume 24 dated 3rd May 1990. Section 3 of the order states:
“The areas of the Territory of Kaduna State specified and described in the schedule hereto are hereby designated as areas constituting Land in Urban Areas.”

And Section 2 of the said schedule provides urban Areas thus:
“The area constituting the capital of Zaria local Government and shall include the area within 15 kilometer radius from the centre of the capital and to extend 4 kilometer on either side of the Zaria-Funtua Road, terminating at shika as delineated on the plan NO, NC/MISC.49.?

Learned Counsel to the appellant did contend that the learned trial judge of the lower Court ought to have taken judicial

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notice of the Legal Notice (supra) though not in evidence before him, and acted on same to hold that the property in dispute must be taken to be in an Urban Area as spelt out in the said legal Notice. Counsel to the respondent contended that it is not sufficient to just refer to the Legal Notice wherein the Urban Areas have been specified. That there must be evidence from an expert, a surveyor or a map showing clearly the location of the disputed land within the designated Urban Area. I think learned counsel to the respondent was on a formidable ground in his submission. For as enunciated in the cases of Ogu v. Nwaobia (2000) FWLR Pt. 6 P.922 @ 952.
“…whether or not a particular piece of land in dispute is within urban area and so subject only to the jurisdiction of the High Court is a matter of evidence, It is not only by looking at a map or plan that an urban area can be determined. The evidence of a surveyor will have to be adduced or a map tendered to explain the area designated “urban area, it is not enough for counsel to stand up in the Court and simply state that the disputed piece of land is within an urban area without leading

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evidence to establish that fact.
Similarly, the Apex Court in the case of Adene v. Dantunbu (1994) 2 NWLR Pt. 328 P. 509 @ 525 held that:
“?it is not only by looking at a map or plan that an urban area can be determined. The evidence of a surveyor who is an expert in that field can be relied upon.” see also Dweye & Ors v. Iyomahan & ors (1983) 2 SCNLR 135; (1983) NSCC 393 @ 396; (1983) 8 SC 76 @ 8 .’

As held by the learned trial judge of the lower Court the appellant did not adduce evidence on the exact location of the disputed property that is House No. 17 Jigba Road Tudun Wada, Zaria. The evidence of a surveyor or a map drawn by him showing clearly where the said property is situate, is necessary for the Court to decide whether it is within the urban Area as designated in the Legal Notice of 1990.

?As to the contention that Exhibit A, B and C are of no evidential value because same were issued without the consent of the Governor of Kaduna State was obtained, I am of the view that it all depends on the purpose for which the said documents were tendered and admitted in evidence. I agree with the submissions of

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learned counsel to the respondent that having regard to the purpose for which the document were tendered and admitted in evidence, that is to prove that there was transaction between the parties, same was rightly admitted in evidence. For as held in FMB v. Akinola (1999) 4 NWLR pt. 545 p. 325 @ 327:
“Registrable instruments which are not registered are if pleaded admissible in evidence to proof not only payment of purchase money or rent but also to prove equitable interest where the purchaser or lessee is in possession

The learned trial judge of the lower Court was therefore right when he held on page 211 of the printed record of as follows:
“Now the learned defence counsel contended that Exhibits A,B and tendered by the plaintiff are inadmissible and void as same violates the provision of Sections 6, 7, 15 KSLW and 22 of the LUA.This remains mere assertions as the defendant has not produced any evidence before this Court to clearly show that the house in dispute is situate in an urban area without more. The defendant must prove the land is situate in an urban area by production of the desire evidence

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Issue 1 is accordingly resolved against the appellant.

On Issue 2, which is whether an instrument purportedly made to alienate a vested interest in land situate in an Urban Area ought not be governed by the provisions of Sections 22(1) and 26 of the Land Use Act, 1978. Obande Esq, submitted that by virtue of Section 26 of the Land Use Act, the learned trial judge ought to have rejected Exhibits A B and C as inadmissible evidence of proof of title. That if Section 26 is read in conjunction with Section 22 of the Land Use Act, Exhibits A B and C were null and void therefore inadmissible which the lower Court ought not have relied on in deciding that the respondent had adduced reliable evidence in support of his claim of title to the property in dispute. The case of SBN Ltd v. Ajilo (2001) FWLR pt. 75 p. 513 cited to buttress the submission supra. The cases of Onwubuariri v. Igbasuiyi (2011) ALL FWLR pt. 569 p. 1069 and CCCT & CS v. Ekpo (2001) 17 NWLR Pt. 743 P. 649 were cited and relied on to buttress the principles of law that any instrument purporting to transfer or convey title to land situate in an Urban Area ought to comply with Sections 22 and 26 of the

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Land Use Act. Counsel therefore did urge this Court to find and hold that Exhibits A, B and C being the only documentary evidence relied on to prove the respondents title to the property in dispute, being null and void, could not have justified the decision of the learned trial judge of the lower Court when he entered judgment in his favour.

For the respondent, Is’Haq Esq, contended that if Issue 1 could be resolved against the appellant, Issue 2 cannot be sustained. That Exhibit A, B and C were not the evidence relied on to prove the title of the respondent to the property in dispute. That the evidence of pw7; who witnessed the transactions involving the disputed property between the respondent and the vendors, clearly established the title of the respondent. It has also been contended that Exhibit A, B and C are admissible in law even without the prior consent of the Governor sought and obtained in view of the decisions in the cases of Int. ile Ind. (Nig) Ltd v. Aderemi (1999) 9 NWLR pt. 614 p. 269 @ 277 and FMB v. Akinola (1998) 4 NWLR pt. 545 p. 325 @ 327.

On whether Exhibits A, B and C being instruments affecting land, which ought to have

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been registered to be admissible in evidence, counsel pointed out that the documents were admitted in evidence as receipts to prove the sale transaction. That by the said Exhibits A, B and C the respondent had acquired equitable interest in the land notwithstanding the non-registration of Exhibits A, B and C. The case of Osagie v. oyeyima (1987) 3 NWLR Pt. 59 p.144 cited in aid. Counsel also cited the case of Usman v. Garke (1999) 1 NWLR pt. 587 P. 466 to reinforce the submission supra. On the whole, counsel did urge that Issue 2 be resolved against the appellant for Exhibits A, B and C were rightly admitted in evidence and relied on by the learned trial judge of the lower Court.
In resolving Issue 2, I need only to refer to my reasoning and conclusion on Issue 1, and adopt same, mutatis-mutandis, and accordingly restate that by the decisions in the cases of FMB v. Akinola (1998) 4 NWLR pt. 545 p.927 @ 377; Osagie v. Oyeyima (1982) 3 NWLR Pt. 59 P.144 and usman v. Garke (1999), NWLR pt. 587 P. 466, Exhibits A, B and C were rightly admitted in evidence by the lower Court notwithstanding that the Governor’s consent was not obtained nor were they

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registered as required by law. consequently, I hereby resolve Issue 2 against the appellant.

Issue 3, whether or not the trial Court was right in entering judgment in favour of the respondent in the circumstance of the case. Having resolved Issues 1 and 2 against the appellant, the learned trial judge of the lower Court was right in entering judgment in favour of the respondent. This is so because Exhibits A, B and C though not obtained prior to the consent of the Governor, are admissible in law as has been held in the case of FMB v, Akinola (1998) 4 NWLR pt. 545 p. 327 @ 327 and Int. ile Ltd. (Nig) Ltd v. Aderemi (1999) 8 NWLR Pt. 614 P. 268 @ 277. As to the non-registration of the said Exhibits, that is, A B and C their admissibility in evidence has been justified by the decisions in the cases of Osagie v. Oyeyima (1982) 3 NWLR pt. 59 P. 144 and Usman v. Garke (1999), NWLR pt. 597 p. 466. Issue 3 is hereby resolved against the appellant.

?In the trial analysis, having resolved all the three (3) issues against the appeal, I agree with the learned trial judge when he concluded his judgment on page 211 of the printed record of appeal that:<br< p=””

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?Secondly, the none issuance of consent of Governor of Kaduna State as canvassed by the learned defence counsel in the least is an attempt to destroy the documentary evidence produced by the plaintiff and it remains so since counsel has not taken further steps to establish before this Court that the property in dispute is situate in an urban Area as well as covered by a state certificate of occupancy thereby falling under the provision of the LUA. Without more, this still remains as a fantasy. The plaintiff has establish his claim.?

I cannot fault the reasoning and conclusion of the learned trial judge supra. Accordingly, the appeal fails for lacking in merit, same is dismissed. The judgment of the lower Court delivered on the 24th of September, 2014 in SUIT No. KDH/Z/131/2010, is hereby affirmed. The respondent entitled to costs as and N50,000.00 same is awarded to him.

Other Citations: (2016)LCN/8706(CA)