CORAM

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OYEBISI FOLAYEMI OMOLEYE (PJ)

JAMES SHEHU ABIRIYI

SAIDU TANKO HUSAINI

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PARTIES

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ALHAJI ZUBAIRU A. A. GAMBO

 

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1. MOHAMMED ALH. ISA2. ESTATE OF ALH. ISA RUMIRGO

 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondents before the High Court of Adamawa State holden at Yola claimed for a declaration of title to the parcel of land in dispute, damages for trespass to the land and an order of perpetual injunction against the Appellant. And in reaction, the Appellant counterclaimed against the Respondents for a declaration of title to the parcel of land in dispute, an Order of perpetual injunction amongst other reliefs. The Respondents’ claim was that the 1st Respondent’s father died leaving behind a house at Ibadan Road, Jimeta Yola and an undeveloped portion of land in the same address. Sometime in 2005, the Appellant instituted an action at the Chief Magistrate Court for the recovery of premises against the 1st Respondent on the basis that he bought the house which was auctioned on behalf of the United Bank for Africa. And the Respondents’ position was that the empty plot adjacent the house was not mortgaged and was therefore not part of the property that was auctioned to the Appellant by the bank; but the Appellant’s defence is that the parcel of land was part of the property mortgaged by the 1st Respondent’s father, covered by Customary Certificate of Occupancy No. 008797, but the 1st Respondent has denied him access to the parcel of land and has rented it out for businesses. The Court below heard evidence of witnesses called by the parties, visited the locus in quo and after considering the evidence adduced by both parties and addresses of learned counsel, entered judgment in favour of the Respondents. Aggrieved, the Appellant appealed to the Court of Appeal, Yola vide his Notice of Appeal, which was later amended containing 7 Grounds of Appeal.

 

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HELD

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Appeal Allowed

 

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ISSUES

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Whether the trial Court was right when it rejected the Valuation Report of land in dispute tendered through DW1 on the ground that it was not tendered through the maker in accordance with Section 83 of the Evidence Act, 2011. Whether the trial Court was right when it refused to admit the Certified True Copies of documents tendered through a witness on subpoena on the ground that the documents were not pleaded and frontloaded as required by Order 1 Rule 2 of the Adamawa State High Court (Civil Procedure) Rules, 2013. Whether in the light of the evidence and Exhibits before the Hon. Court the Respondents have proved their case at the trial Court to the effect that the land in dispute does not form part of the property sold to the Defendant in an auction sale of 10/05/2005 by the United Bank for Africa Plc (UBA). Whether Exhibit A was fraudulently obtained by the 1st Respondent’s father.

 

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RATIONES DECIDENDI

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DECLARATORY RELIEFS – DUTY OF A PARTY SEEKING THE GRANT OF DECLARATORY RELIEFS

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“The law is loud and clear that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. A declaratory relief will be granted where the plaintiff or person seeking the declaratory relief is entitled to the relief in the fullest meaning of the word. The plaintiff or person seeking the declaratory relief must plead and prove his claim for a declaratory relief without relying on the evidence called by the defendant. A declaratory relief is not granted even on admission by the defendant. However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the plaintiff’s title. See Anyaru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR – 864 (SC) page 64 – 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR – 19929 and Oguanuhu vs. Chiegboka (2013) 2 SCNJ 69 at 707.-

 

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DECLARATION OF TITLE TO LAND- WHETHER THE MERE PRODUCTION OF A CERTIFICATE OF OCCUPANCY ENTITLES A PARTY TO A DECLARATION OF TITLE TO THE LAND

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‘The mere production of a certificate of occupancy by a party in a suit does not by itself entitle the party to a declaration of title to the land. A certificate of occupancy is only prima facie evidence of title to land. Consequently, if it is successfully challenged, it can be nullified. Thus where there is evidence to show that the certificate was wrongly obtained the Court is entitled to nullify it. See Auta vs. Ibe (2003) 13 NWLR (Pt. 837) 247 and Ilona vs. Idakwo (2003) 11 NWLR (Pt. 830) 53 both decisions of the Supreme Court. –

 

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COURT – DUTY OF THE COURT IN THE EVALUATION OF EVIDENCE OF PARTIES BEFORE IT

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“The Court below suo motu navigated through Exhibit B to a portion of the judgment to draw the conclusion that the Appellant merely claimed to recover the five-bedroom house. This was wrong. A trial is a public demonstration of the cases for the parties in Court and not a private investigation by the judge in the recess of his chambers. See Duriminiya vs. COP (1961) NWLR 70 at 73 – 74. Even if the Court below was right in navigating through Exhibit B which was merely dumped on the Court, I do not think that it would have been proper to scrounge for the claim of the Appellant in the judgment without looking at the claim itself before the Chief Magistrate Court I. In my view the Court below also erred when it relied on Exhibit B to enter judgment in favour of the Respondents. A trial Judge can neither substitute the result of his personal observations at the locus in quo for evidence given on oath nor can he reach conclusions upon things he observed on the inspection in the absence of testimony on oath to the existence of those facts which he saw or observed at the locus in quo. See Ogundele vs. Fasu (1999) 12 NWLR (Pt. 632). –

 

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CROSS EXAMINATION OF A WITNESS – EFFECT OF FAILURE TO CROSS-EXAMINE A WITNESS ON A CRUCIAL AND MATERIAL POINT

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“It is the law that where a witness is not cross examined on a crucial and material point, the only conclusion is that the adverse party who ought to have cross – examined the witness accepts the evidence of the witness as true. See Babalola & Ors vs. The State (1989) LPELR-695 SC page 21 – 22. –

 

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DOCUMENTS – WHETHER DOCUMENTS CAN BE TENDERED THROUGH A PERSON THAT IS NOT THE MAKER AND CONSEQUENCE THEREOF

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“The valuation report could have been admitted in evidence under Section 83 (2) of the Evidence Act even though the person through whom it was tendered was not the maker. In Lambert vs. Nigerian Navy (2006) 7 NWLR (Pt. 980) 525 this Court held that the proper person through whom a document is tendered is the maker of the document. However, if the person who is not the maker tenders a document, the Court should not attach any probative value to the document because the person tendering the document not being the maker cannot be crossed on it. –

 

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PLEADINGS – PARTIES ARE BOUND BY THEIR PLEADINGS

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“It is an elementary principle of law that parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with the pleadings. There is no need citing any authority in support of this trite principle of law. See however, Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1, E. D. Tsokwa & Sons Co. Ltd vs. U.B.N Ltd (1996) 10 NWLR (Pt. 478) 281 and Ito vs. Ekpe (2000) 2 SC 89. –

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Adamawa State High Court (Civil Procedure) Rules, 2013

Evidence Act, 2011

 

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