CORAM

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TIJJANI ABDULLAHI,JUSTICE, COURT OF APPEAL

SAIDU TANKO HUSAINI, JUSTICE COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JUSTICE COURT OF APPEAL

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PARTIES

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EMMANUEL ARANDA

APPELLANTS 

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HASSAN KELGUM

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COURT, LAND LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This appeal and cross appeal is sequel to the Judgment of the High Court of Justice of Gombe State delivered on the 21st March, 2014 in Suit No. GM/91/2010 between the Parties named herein. The Appellant as the Plaintiff suing for himself and on behalf of ARANDA FAMILY vide a Writ of Summons Statement of claim dated and filed on the 25th March, 2010 claimed against the Defendant, Hassan Kelgum, sued by himself and on behalf of their family, a declaration of title to land in favour of the Plaintiff to the pieces of land lying and situated at Kalindi and Lakarat; perpetual injunction restraining the Defendant from further encroaching the land, and damages. The case for the Appellant, briefly put is that the Aranda family are the exclusive owners of the two farmlands at Kalindi and Lakarat upon which the Respondent have trespassed and are selling portions of those farmlands to strangers. The appellant however concedes that the farmlands at Pokolbin and Palareng belong jointly to the two families of the appellant and respondent’s grandfathers both of whom cleared those two pieces of land and cultivated them together.

The Defendant, now Respondent, upon being served with the Writ of Summons and Statement of Claim, the Respondent filed his defence and counterclaim. The case of the Respondent, who denied the claim, is that they are the original owners of the farmlands in dispute which were cleared by their ancestor, Kwaje Ta’andoji, said to be a warrior at the time and for which reason many people sought refuge with him and came under his protection inclusive of the family of the appellant and thus the respondent have since continued to accommodate and relate with the family of the appellant whom they regard as customary tenants on the farmlands in dispute. At the close of evidence of parties on both sides and counsel final addresses, the trial court delivered judgement and dismissed the claim and counterclaim respectively.

Not satisfied with the decision of the Court below the Plaintiff Appealed to this Court on 5 (five) grounds vide a Notice of Appeal dated and filed on the 19th June, 2014, seeking to set aside the decision of the Court below. There is also a Notice of Cross Appeal against the same decision filed out of time at the instance of the Respondent with leave of this Court.

 

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HELD

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Appeal

 

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ISSUES

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Whether the Gombe State High Court was justified in holding that Plaintiff has failed to prove his case on the balance of probability in the light of the pleadings and evidence led.

 

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RATIONES DECIDENDI

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BURDEN/ONUS OF PROOF – ON WHOM LIES THE BURDEN OF PROOF IN ACTION FOR DECLARATION OF TITLE TO LAND – HOW THE BURDEN IS DISCHARGED

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“The Courts have over the years laid down certain principles as guides in matters such as this where a claimant approaches the courts to seek declaratory orders for title to land. The Onus thus lie on such claimant or Plaintiff to satisfy the court that he is entitled to the declaration of title on the strength of the evidence brought by him. He must rely on the strength of his own case and not on the weaknesses of defence case and if he fails to discharge the Onus on him the weakness in defendant’s case will not help him and the proper thing was for the court to enter Judgment for the defendant short of a decree of title being made for such defendant, having not sought an order for declaration of title to himself. See: Kodilinye V. Odu (1935) 2 WACA 338; Adeniran vs. Alao (2007) 92 LRCN 3253, 3267 – 3268. Bankole vs. Pelu (1991) 8 NWLR (Pt. 211) 523 or (1991) 11 SCNJ 108; Iyayi Vs. Eyigebe (1987) 3 NWLR (pt. 61) 523. Fasikun & Ors. Vs. Oluronke (1999)2 NWLR (Pt. 589)1 or (1999) 1 SC 16.

Implicit in that statement is the duty on the plaintiff in a claim for declaration of title to land to prove:

The identity of the land he claimed. See; Titilayo V. Olupo (1991) 7 NWLR (pt. 205) 19 or (1992) 6 SCNJ 282; Odiche vs. Chibogwu (1994) 7 – 8 SCNJ 317; Adambsa V. Odiese (1990) NWLR (Pt. 125) or (1990) 1 SC 219; Oke vs. Eke (1982) 12 SC (R) 100; Ituadzo Vs. Adjei 10 WACA 1944) 274.

His root of title, stating the particulars of intervening owners of the land before him. See the decision in Balogun V. Akanji (1988) 1 NWLR (Pt. 70) 301; Oke Bola v. Molake (1975) 12 SC (Reprint) 46; Owlonda v. Ekpechi (2003) 9 – 10 SC 1.” – Per HUSAINI, JCA

 

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STANDARD OF PROOF – REQUIRED STANDARD OF PROOF IN ACTIONS FOR DECLARATION OF TITLE TO LAND

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The proof required of him is of a standard of balance of probability or preponderance of evidence. See Section 133 (1) and 134 of the Evidence Act 2011 Cap E … 14 and decisions in Mogaji v. Odofin (1977) 4 SC 91; Kalyaoja v. Egonla (1974) 12 SC 55.

The concept of balance of probability rests on the credibility of the witness or witnesses and the evidence adduced which must be worthy of truth and to be believed having regard to situational circumstances which must be proved. See: Abdullahi v. Suleiman (2011) LPELR – 9219 (CA).” – Per HUSAINI, JCA

 

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DECLARATION OF TITLE TO LAND – WHETHER THE COURT CAN MAKE DECLARATION OF TITLE TO LAND ON ADMISSION OF THE PARTIES

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“Title to land cannot be decreed on the basis of admission only as argued by counsel for the appellant in his brief. He must show and prove by evidence that he deserves it, see: Governor of Kwara State v. Alhaji Lawal (2007) 13 NWLR (Pt. 1051) 387; Ezeokwonkwo v. Okeke (2002) 11 NWLR (Pt. 777) 1, 10; Adeleye v. Olona Motors Nig. Ltd. (2002) 8 NWLR (Pt. 769) 445, 460; Folorunsho v. WAEC (2011) All FWLR (Pt. 556) 422, 489-490.” – Per HUSAINI, JCA

 

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DUTY OF COURT – DUTY OF COURT TO CONSIDER ALL ISSUES RAISED BY A PARTY – EFFECT OF FAILURE OF SAME

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“There is the need to first examine this claim of the appellant because if indeed the court below failed to consider aspects of his case before reaching a conclusion, the danger in such exercise is that proceedings are voided on account of want of hearing or fair hearing and the court would have failed in its duties of having to consider all issues placed before it for determination. The judge of a Court must demonstrate a full dispassionate consideration of all issues raised and canvassed before it. Failure of the Court to do this will lead to a dent in the case on appeal. See: Samba Petroleum Ltd & Anor. v. UBA PLC (2010) 6 NWLR 530, 531; Spring Bank Plc v. Dokkin Ventures Nigeria Ltd (2012) LPELR-7983 (CA).” – Per HUSAINI, JCA

 

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IDENTITY OF LAND – WHETHER THE NEED FOR IDENTITY OF LAND TO BE ASCERTAINED CAN BE DISPENSED WITH

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“In an action for declaration of title to land, the Plaintiff must necessarily prove the identity of the land claimed by him. But he need not prove the identity of land claimed except in cases where the defendant has joined issues over the identity of the land, the subject matter of claim as held in Adomba v. Odiese (supra). Parties in this case have not joined issues over the identity of the two (2) farmlands in dispute. To the contrary, is the counterclaim of the respondents over the 2 (two) farmlands at Lakarat and Kalindi as a pointer to the fact that the farmlands in dispute are known to both sides. See Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445, 476; Orunengimo v. Egebe (2007) 15 NWLR (Pt. 1053) 630; Idakwo v. Aliyu Ibrahim (2011) LPELR-8936 (CA). Where the defendant has not joined issues over the identity of the land in dispute no issues arises as to identity of that land.” – Per HUSAINI, JCA

 

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ROOT OF TITLE – DUTY OF A PARTY TO PROVE ROOT OF TITLE

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“In legal parlance, the Plaintiff must lead evidence to prove his root of title relative to the two (2) farmlands. He must lead evidence of intervening owners and how interest in the land in dispute has devolved into the claimant. See: Ukaegbu v. Nwololo (2009) 1 SCNJ 49.”- Per HUSAINI, JCA

 

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AMENDMENT OF COURT PROCESSES/PLEADINGS – WHETHER THE AMENDMENT OF A STATEMENT OF CLAIM WOULD NECESSITATE OTHER PROCESSES BEING REFILED

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“Order 2 of the Gombe State Practice Direction 2012 is to the effect that in the beginning of a Suit the Plaintiff/Respondent shall file his Writ of Summons and the same shall be accompanied with certain documents. The documents which are to accompany the Writ without which the registry shall not accept the case for filing include:- 1. The Statement of claim 2. Witnesses’ Statements on Oath.3. List of documents etc. It is by the Writ of Summons that an action is commenced in matters begun by writ. The writ is thus the origin of that action by which the party on the other side is put on Notice. A Statement of claim does not commence an action even though it supercedes the writ. The process or processes which must accompany the Writ of Summons at the point of filing the writ include the Statement of claim. It is this same process that was amended on the orders of the trial Court. It was not the Writ of Summons that was amended. If that were the case, the writ being the beginning of the case would call for the refiling of those other documents along with the amended writ. In this instance case, it was the Statement of claim and not the writ that was amended. The Statement of claim not being the process that commences an action, its modification in the course of trial or hearing would not and should not necessitate other processes being refiled unless, if by virtue of the Statement claim being amended, there would be the need to call further or additional evidence of witnesses to support any new fact introduced into the amended Statement of Claim.” – Per HUSAINI, JCA

 

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POWER OF COURT – POWER OF BOTH THE TRIAL AND APPELLATE COURT TO DRAW AND MAKE INFERENCE FROM THE FACTS OR PLEADINGS OF A CASE

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“A Court of trial as well as this Court has power to draw and make inferences from the facts or pleadings in cases as this. See: Okonkwo v. Kpajie (1992) NWLR (Pt. 226) 633 or (1992) 2 SCNJ 290.”

 

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OWNERSHIP OF LAND – ON WHOM DOES PROPERTY OF AN ORIGINAL OWNER DEVOLVE UPON HIS DEATH

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“The death of the original owner will lead to the property vested in him to devolve unto his successors or heirs. See Oyeniyi v. Adeleke (2008) LPELR-8463 (CA); Tayo Ojo v. Chief Jerome Akinsanoye (2014) LPELR-22736 (CA).” – Per HUSAINI, JCA

 

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PROOF OF TITLE TO LAND – WAYS OF PROVING TITLE/OWNERSHIP OF LAND

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“Indeed one of the five ways by which the Plaintiff can prove his title to land as enunciated in the case of Idundun v. Okumagba (1976) 9-10 SCNJ 227 and followed by a plethora of other decided cases including Adewuyi v. Odukwe (2005) 7 SCNJ 227, 237; Balogun v. Akanji (2005) 4 SCNJ 101, 109-110; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Kyari v. Alkali (2001) 6 NSCQR (Pt. 2) 819, 845, 846, is proof by Traditional evidence. The others are by way of:

(2) Proof by production of documents of title duly authenticated

(3) Proof by acts of ownership extending over a sufficient length of time numerous and positive as to warrant the inference that the person is the owner.

(4) Proof by acts of long possession;

(5) Proof of possession of connected or adjacent land in circumstances probable that the owner of such, connected or adjacent land would in addition be the owner of the land in dispute.”

– Per HUSAINI, JCA

 

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FAMILY LAND – WHETHER A FOUNDER OF A FAMILY IS THE SAME AS THE PERSON WHO FIRST ACQUIRED/FOUNDED A GIVEN FAMILY LAND

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“The term founder of a family, is in my opinion not coterminous with neither is it the same as the person who first acquired or founded a given family land. I think this distinction has to be made. A founder of the family is the progenitor of that family. That formation may not be tied to any property rights or interests. On the other hand where a particular piece of land is in issue in the family, it is usually traced to an individual founder who first acquired the land. See: Echi & Ors. Vs. Nnamani (2002) 8 NWLR (Pt. 667) 1 or (2000) 5 SC 62. The person named Mintang was never presented by the Plaintiffs as the individual founder of the 2 farmlands in dispute.” – Per HUSAINI, JCA

 

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TRADITIONAL EVIDENCE/HISTORY – REQUIREMENT FOR A PERSON RELYING ON EVIDENCE OF TRADITIONAL HISTORY IN AN ACTION FOR DECLARATION OF TITLE TO LAND

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“Where a claim is founded on traditional history evidence, the person claiming it must plead relevant facts as to constitute his root of title. If a claimant traces his root of title to a particular person he must go further to show how that person came about his own title or had his title vested in him. There has to be a chain of devolution of interest in a claim founded on traditional history evidence as held in Ikagbunam v. Eunice Onwubaya (2007) All FWLR (Pt. 345) 379-387; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745.” – Per HUSAINI, JCA

 

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PLEADINGS – ELEMENTARY RULES OF PLEADINGS

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“It is settled from a long line of decided cases, provisions in statute books as well as opinion of textbook writers as to, the place, position and purpose pleadings are meant to serve in matters begun by Writ of Summons. Pleadings being formal documents in which a party to legal proceedings set forth or responds to allegation of claims, denials or defence as defined in Black’s Law Dictionary 8th edition at page 1191, the use of pleadings as a means to put forward a case in the law Courts are thus regulated by certain precepts and guidelines. Being a form of Notice to the party on the other side, pleadings must state material facts on which the party pleading it intend to rely, see Order 24 Rule 4 (1) of the High Court Civil Procedure Rules 1991 of Bauchi State applicable to Gombe State; Nasir v. Civil Service Commission Kano State (2010) 4 SCNJ 186. Pleadings must state facts concisely, precisely and accurately and no evidence can be led on facts not pleaded. See: Osuji v. Ekeocha (2009) 7 SCNJ 248. Amodu v. The Commandant Police College (2009) 7 SCNJ 65. Parties and indeed the Courts are bound by the pleadings before it hence evidence adduced in the course of trial which is not in conformity with pleadings becomes a non-issue and must be ignored by the Court. See: Abubakar v. Joseph (supra); Olubodun v. Lawal (Supra); Yusuf v. Adegoke (supra); Anyawu v. Uzowuaka (2009) 7 SCNJ 29; Agboola v. UBA (2011) 35 LNJ 208; Adekeye v. Adesina (2010) 12CNJ 233.” – Per HUSAINI, JCA

 

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POWER OF A COURT – WHETHER A COURT HAS POWER TO DRAW INFERENCES

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“A Court of trial as well as this Court has power to draw and make inferences from the facts or pleadings in cases as this. See: Okonkwo V. Kpeje (1992) NWLR (Pt. 226) 633 or (1992) 2 SCNJ 290.” – Per HUSAINI, JCA

 

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BURDEN OF PROOF/ONUS OF PROOF – WHETHER A PLAINTIFF MUST RELY ON THE STRENGTH OF HIS CASE AND NOT THE WEAKNESS OF THE CASE OF THE DEFENCE

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“The law is indeed trite that in an action for declaration of title to land the onus is on the Plaintiff to prove his title to warrant a declaratory order being made, in order to succeed he must lead credible evidence and rely on the strength of his case and if he fails to discharge the onus on him his action must be dismissed as the weakness in defence case will be of no assistance to him. Authorities are legion on this point. See: Kodinlinye v. Odu (supra); Adeniran v. Alao (2001) 92 LRCN 3255, 5267-3268; Dakolo v. Rewane Dakolo (2011) 198 LRCN 1, 25.” – Per HUSAINI, JCA

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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High Court Civil Procedure Rules 1991 of Bauchi State

Gombe State High Court (Civil Procedure) Rules of 1991

 

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