Legalpedia Citation: (2023-07) Legalpedia 96511 (CA)

In the Court of Appeal

Holden At Kaduna

Mon Jul 31, 2023

Suit Number: CA/K/50/2010

CORAM

Muslim Sule Hassan JCA

Mohammed Baba Idris JCA

CHIDI NWAOMA UWA JCA

PARTIES

ALHAJI MOHAMMED NURUDEEN MOHAMMED

APPELLANTS

1. FEDERAL MINISTRY OF LANDS, HOUSING AND URBAN DEVELOPMENT
2. KADUNA STATE EXECUTIVE GOVERNOR
3. KADUNA STATE URBAN PLANNING AND DEVELOPMENT AGENCY
4. ALHAJI MUSA MAGAJI

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The land in contention is the piece of land measuring 153 feet by 100 feet known as Plot No. 13 Surami Road, Kaduna. It is the Appellant’s claim that the said piece of land is covered by an allocation paper issued by the Bureau of Land and Survey and signed by the Executive Governor of Kaduna State but that he has misplaced all papers and documents to the land. However, the said he traced his title to one Mallam Surajudden Mohammed and that he obtained approval for building plan.

On the 19th day of November, 2002, he arrived at the piece of land in dispute and was surprised to meet some officials of the Federal Ministry of Works and Housing, Kaduna on his Plot, who painted red “X” mark on the wall and gate of the property and that the Respondents have been trying to demolish the building on the plot. The Appellant herein, as Plaintiff before the trial Court (Federal High Court sitting in Kaduna) sought to be declared as the rightful holder of the property.

The 4th Respondent filed an application before the lower Court to be joined as a party on the 2nd day of May, 2006. The 4th Respondent filed his Statement of Defence and counter-claim wherein he contended that the property in dispute belongs to the Federal Government and thus, that the 2nd and 3rd Respondents have no title to confer on either the Appellant or on the said Mallam Surajudeen Mohammed. He claimed that the said property was offered to him by the 1st Respondent and that he is still processing his Certificate of Occupancy having made all statutory payments to the 1st Respondent.

 

The trial Court while delivering its judgment held in favour of the 4th Respondent. Obviously dissatisfied with the judgment of the trial Court, the Appellant filed the instant appeal. 

HELD

Appeal allowed

ISSUES

• Whether at the time of the sale in March 1993 and indeed when Appellant took possession of the land No. 13 Surami Road Kaduna there was/is a valid title over the land by the Appellant?
• Whether from all the available evidence including exhibits tendered in Court, there is anything to support a valid title for the Appellant or the 4th Respondent respectively?
• Whether if at all the 4th Respondent have any title (which the Appellant deny), whether the said 4th Respondent have not slept on the said right on principle of laches and acquiescence?

 

RATIONES DECIDENDI

APPEAL – CLASSIFICATIONS OF GROUND OF APPEAL – HOW TO DETERMINE THE CLASS A GROUND OF APPEAL FALLS UNDER

…SAINT GOBAIN PAM S. A. VS. INTERNATIONAL CONSULTANTS INCORPORATED (2015) LPELR-24663 (CA) (PP. 8 – 9 PARAS. C) where this Court held per Otisi, JCA that:

 

“A ground of appeal may be one law, facts or a hybrid of mixed and fact. It is generally acknowledged that the division between a ground of law simpliciter and one of mixed law and fact is thin. However, a ground of appeal is not classified simply by the name given to it. In determining whether a ground of appeal is one of law or fact, or of mixed law and fact, it is relevant and crucial to construe the ground of appeal together with the particulars of error as alleged. Ehinlanwo v. Oke (2008) 6 – 7 S.C. (PT. 11) 123, Obatoyinbo v. Oshatoba (1996) 5 NWLR (PT. 450) 531. A ground of appeal does not become an error of law if the errors particularized are simply matters of fact. METAL CONSTRUCTION (WEST AFRICA) LTD V. MIGLIORE & ORS (1990) 2 S.C. 33, KASHADADI V. NOMA (2007) 6 S.C. (PT. I) 68. In determining if leave of Court is required therefore, the nature of the decision over which an appeal was filed must be considered.” – Per M. B. Idris, JCA

COURTS – CONDUCT OF COURTS IN RELATION TO GROUNDS OF APPEAL

I do not think the onus is on the Court to start reading and determining whether a ground of appeal is of mixed law and facts when the party raising the objection has made no attempt to explain in detail why the discretion of the Court must be swayed in his discretion. – Per M. B. Idris, JCA

COURTS – DISCRETIONARY POWERS OF THE COURT OF APPEAL TO ENLARGE TIME FOR DOING THINGS REQUIRED BY THE RULES OF COURT

…AHIAKWO VS. EMEH (2022) LPELR – 57465 (CA) (PP. 11 – 14 PARA. C) where this Court held per Adegbehingbe, JCA that:

“Order 6 Rule 9 of the Court of Appeal Rules 2021, which provides that this Court may enlarge time provided by the Rules for the doing of anything to which the Rules apply, except as it relates to the taking of any step or action under Order 16 in the Rules. The case of I. T. N. A. G. P. P. E. v. P. C. N. [2012] 12 NWLR (Pt. 1284) 262, teaches that the Court of Appeal may enlarge the time provided by the Rules of Court for the doing of anything to which the rules apply. The law is that where a statute provides a specific time for filing of a process and it is not filed within the period specified, the reason for the delay in not complying must be reasonable. The party in default must seek for extension of time. The question whether an extension of time may be granted to regularize a particular act or default being a matter of discretion, requires the Court to exercise same judiciously. An applicant, to earn the extension of time must show good reason. It also depends on facts and circumstances of each case. In the exercise of judicial discretion to extend time within which to take certain procedural steps as prescribed by the Rules of Court, substantial justice to the parties must always be the cardinal determinant. The burden is on the applicant seeking extension of time to establish good or exceptional reasons to succeed. Extension of time for doing anything to which the Rules of Court apply is within the discretionary powers of the Court. A judicious and judicial exercise of such powers could only be achieved if the extension of time that was sought was to get the appeal heard. All judicial discretions must be exercised according to common sense and justice. What is pertinent is that in the exercise of the discretion the issue of achieving substantial justice is paramount. The attitude of the appellate Court is to allow Records already compiled to come properly before the Court in the interest of substantial justice so that the appeal will be considered on its merit and determined. This augurs with the spirit of avoiding adherence to undue technicality that will cause injustice.” – Per M. B. Idris, JCA

 

LAND – WAYS OF PROVING OWNERSHIP OF LAND

In the case of ODI & ORS VS. IYALA & ORS (2004) LPELR – 2213 (SC) (PP. 28 PARA. B), Supreme Court held per Tobi, JSC that:

“A plaintiff who claims ownership of land must prove his title in any of the five ways enumerated in Idundun v. Okumagba (1976) 9 – 10 SC 277; (1976) 1 NMLR 200. Where he fails to prove title, the case must be dismissed. He is not entitled to a non-suit to repair his original case.”

In the celebrated case of IDUNDUN & ORS VS. OKUMAGBA (1976) LPELR – 1431 (SC) (PP. 23 – 26 PARAS. D – D), the apex Court held per Fatayi-Williams, JSC that:

“As for the law involved, we would like to point out that it is now settled that there are five ways in which ownership of land may be proved. We will now proceed to consider each of these five ways in order to see if the findings of the learned trial Judge can be seen to bring the evidence adduced in the case in hand within the ambit of any of them.

Firstly, ownership of land may be proved by traditional evidence as has been done in the case in hand…

Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract.

(See Section 129 of the Evidence Act and Johnson v. Lawanson (1971) 1 All NLR p.56). As the appellants’ case was not based on any document of title, this requirement, in the circumstances of this case, is not particularly apposite.

Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner (see Ekpo v. Ita ll NLR p.68). It is clear from the judgment in the case in hand that the learned trial judge completely, and for good reason, rejected the evidence in support of the acts of ownership put forward by the appellants while he accepted those given by the respondents.

Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done (see Section 45 of the Evidence Act, Cap. 62). Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence; moreover under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title. (See Da Costa v. Ikomi (1968) 1 All NLR 394 at page 398). It cannot be gainsaid that, in the present case, not only did the learned trial judge reject the appellants’ evidence as to possession of any portion of the land in dispute, he also found that the respondents have proved by evidence, which he accepted, that they are the owners of the land in dispute.

 

Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute (see Section 45 of the Evidence Act, Cap. 62).” – Per M. B. Idris, JCA

LAND – LONG POSSESSION AS A PROOF OF TITLE TO LAND

In the case of BALA VS. LIYAFA PALACE & ORS (2018) LPELR – 46662 (CA) (PP. 18 – 19 PARA. B), this Court held per Adefope-Okojie, JCA inter alia that: “When the question of long possession arises, the burden of proving that the person in possession is not the owner rests on the person who says he is not. In addition, long possession is to be used as a shield and not a sword.”

The Supreme Court in the case of ONWUGBUFOR & ORS VS. OKOYE (1996) LPELR – 2716 (SC), also held:

“Now, the acts of ownership and possession that will support a claim for title to land must extend over a sufficient length of time and must be numerous and positive enough to warrant the inference that the plaintiff is the true owner. – See EKPO V. ITA (1932) 11 NLR 68, 69. See EKPO V. ITA, (SUPRA), ANYANWU O. V. MBARA (1992) 5 NWLR (PT. 242) 386 AT 401, PIARO V. TENALO (1976) 12 SC 31 AT 41, D. O. IDUNDUN & ORS V. DANIEL OKUMAGBA, (SUPRA).” (emphasis provided)

 

Proof of ownership is prima facie proof of possession, the presumption being that the person having title to land is in possession. See the case of JONES VS. CHAPMAN & ORS (1847) 2 EX. 803B).  – Per M. B. Idris, JCA

LACHES AND ACQUIESCENCE – THE PRINCIPLES GOVERNING THE DEFENCE OF LACHES AND ACQUIESCENCE

In the case ISAAC VS. IMASUEN (2016) LPELR – 26066 (SC) (PP. 19 – 21 PARAS. E), Supreme Court held on the doctrine of laches and acquiescence that:

“The principle governing the defence of laches and acquiescence has been judicially explained in a long line of cases. In an old case of Ramsden v. Dyson L.R. IH.L 129, 140, 141 which was cited in A.G. to the Prince of Wales v. Collon (1916) 2 KB 203, Lord Cranworth explained as follows: “If a stranger begins to build on my land supposing it to be his own and I perceiving his mistake, abstain from setting him right and leave him to preserver in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title, and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. But, it will be observed that to raise such equity, two things are required: first, that the person expending the money supposes himself to be building on his own land, and secondly, that the real owner at the time of the expenditure knows that the land belongs to himself and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert any legal rights.” See Wilfred Okpaloka & Ors v. Ben Umeh & Anor ​ (1976) 9-10 SC (Report) 167, Moss v. Kenrow Nig. Ltd (1992) 11/12 SCNJ 71, (1992) NWLR (Pt. 264) 207, Dadi v. Garba (1995) 8 NWLR (Pt.411) 12.” Per Okoro, JSC.

In the case of ODUOLA & ORS VS. ASHCROFT & ANOR (1978) LPELR – 2253 (SC) (PP. 6 PARA. F), the apex Court held per Sowemimo, JSC that:

“The doctrine of laches is that a person entitled to land should not stand by and allow another person who thinks the land is his to make improvements, and then assert his right to the land, he wants to take the improvements and cheat the other man of the expense he is making.”

In the case of ISAAC VS. IMASUEN (2016) LPELR – 26066 (SC) (PP. 15 – 16 PARA. E), the Supreme Court held per Kekere-Ekun, JSC that:

 

“The law is that a defence of laches and acquiescence must be specifically pleaded and proved. Full facts and particulars must be pleaded. See Adeniran v. Alao (2001) 12 SCNJ 337. The person relying on the defence must plead that the respondent fraudulently, knowingly and deliberately stood by while he changed his position. See Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt. 825) 337 @ 381.” – Per M. B. Idris, JCA

STATEMENT OF CLAIM – WHEN AN AVERMENT IS NOT SPECIFICALLY PLEADED IN A STATEMENT OF CLAIM

I have looked at the Amended Statement of Claim filed by the Appellant herein, and I do not see where laches and acquiescence was specifically pleaded. The Appellant had the freedom in law to amend his Statement of Claim to include averments that would strengthen his case and destroy that of the 4th Respondent and he failed to do so. The fact that this was raised at the trial Court is inconsequential since it was not specifically pleaded. Thus, this Court will not be considering this. – Per M. B. Idris, JCA

LAND – BURDEN AND STANDARD OF PROOF IN A CLAIM FOR DECLARATORY RELIEFS

I am aware that it is trite law that a party seeking declaration of title to land must win on the strength of his case and not on the weakness of the Defendant’s case. In the Supreme Court case of EDOSA & ANOR VS. OGIEMWANRE (2018) LPELR – 46341 (SC) (PP. 12 – 14 PARAS. F), the apex Court held per Kekere-Ekun, JSC that:

“It is equally well settled that in order to succeed in a claim for declaratory reliefs, the claimant must rely on the strength of his own case and not on the weakness of the defence, if any. See Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt. 1119) 361, Bello Vs Eweka (1981) 1 SC (Reprint) 63, Emenike Vs P.D.P. (2012) 12 NWLR (Pt. 1315) 556, Ilori Vs Ishola (2018) LPELR-44063 (SC). A declaratory relief will not be granted even on admission. The claimant must satisfy the Court that he is entitled to the relief. See Bello Vs Eweka (1981) 1 SC 101 @ 102 per Obaseki, JSC, to wit:

“It is true as was contended before us by the appellant’s counsel that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleading of the defendant that he is entitled to the declaration.”

There is no burden on the defendant to prove his own title to the disputed land where he does not file a counter-claim. See Onovo Vs Mba & Ors. (2014) 14 NWLR (Pt. 1427) 391; (2014) LPELR – 23035 (SC) @ 73 B – D, Elias Vs Disu (1962) ALL NLR (Pt.1) 214 @ 220, Kodilinye Vs Odu 2 WACA 336 @ 337 – 338. It is only when the claimant has made out a case that the defendant would be required to proffer evidence in rebuttal.”

From the above cited case, it is clear that the 4th Respondent cannot hide under the general rule that the Appellant must win on the strength of his case because the 4th Respondent filed a counter-claim. The 4th Respondent is also expected to exhaustively prove his counter-claim on the balance of probability as expected in all civil cases. Thus, the trial Court ought to have analyzed the evidence proffered by the 4th Respondent in rebuttal with the same degree of seriousness he deployed in analyzing those of the Appellant. – Per M. B. Idris, JCA

CASES CITED

NOT AVAILABLE

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Court of Appeal Rules 2021

• Land Use Act 1978

• Evidence Act 2011

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