CORAM
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Ruqayat Oremei Ayoola Justice of the Court of Appeal
PARTIES
ENGR. MUSTAPHA GAJIBO
APPELLANTS
1. ALHAJI MUSA MOHAMMED
2. ALHAJI ALI BUDUM
RESPONDENTS
AREA(S) OF LAW
AREAS OF LAW: APPEAL, BURDEN OF PROOF, CONSTITUTIONAL LAW, EVIDENCE LAW, LAND LAW, LIS PENDENS, PRACTICE AND PROCEDURE, RES JUDICATA, TITLE TO LAND, TRADITIONAL EVIDENCE, EVALUATION OF EVIDENCE
SUMMARY OF FACTS
The Appellant instituted an action at the High Court of Borno State claiming declaration of right of possession and occupation over farmland measuring 200 by 100ft situated along Baga Road, Timber Market Area, Maiduguri, perpetual injunction against trespass, and costs. The Appellant’s case was that he purchased the disputed land in 2004 from one CW1 (PW1), who had acquired it in 1973 from one Malam Chiroma Bolori, who inherited it from his father Bolori who originally cleared the land.
The Respondents’ defence was that the disputed land belonged to the 1st Respondent and that there had been previous litigation between the CW1 (PW1) and the 1st Respondent in Suit No. M/59/97. In that case, the CW1 (PW1) had contended that he acquired the land from Malam Chiroma Bolori, but the Court found in favour of the 1st Respondent. The Respondents contended that it was during the pendency of that case that the CW1 (PW1) sold the land to the Appellant, and upon obtaining favourable judgment, the 1st Respondent secured possession from the Appellant through the Deputy Sheriff.
The trial court found that the Appellant failed to establish the traditional history pleaded, as the testimony of CW1 (PW1) was based only on what he was told by Village and District Heads without presenting these heads or any title documents mentioned. The court visited the locus in quo and confirmed that the disputed land was the same land litigated in Suit No. M/59/97. The trial court applied the doctrines of lis pendens and res judicata, dismissed the Appellant’s claims, and the Appellant appealed.
HELD
1. The appeal was dismissed in its entirety for lacking merit.
2. The Court held that the Appellant failed to prove his title to the land through traditional evidence, as the testimony was loosely stated and lacked precision and clarity.
3. The Court held that the Appellant failed to prove the root of title of his vendor (CW1/PW1), and following the maxim “nemo dat quod non habet,” the purchase document passed nothing to the Appellant.
4. The Court held that the disputed land was the same land subject of litigation in Suit No. M/59/97, and the Appellant’s purchase during the pendency of that suit was caught by the doctrine of lis pendens.
5. The Court held that the doctrine of res judicata applied, as the Appellant was privy in estate to the CW1 (PW1) who was a party to the previous litigation.
6. The Court affirmed that the trial court’s evaluation of evidence was proper and not perverse, and an appellate court cannot interfere with findings that flow from evidence on record.
7. Costs of N100,000.00 were awarded in favour of the Respondents.
ISSUES
The Appellant distilled a sole issue: “Whether or not considering the decision of the trial Court the learned trial [sic] properly [sic] and ascribe probative value to the oral and documentary evidence before the Court arriving at its decision”
The Respondents formulated two issues:
1. Whether the trial High Court properly evaluates [sic] and considered all the issues and evidence before it in arriving at its decision?
2. Whether the case of the Appellant was not caught by the doctrine of Lis Pendens and Res Judicata?
RATIONES DECIDENDI
BURDEN OF PROOF – OBLIGATION OF PLAINTIFF TO ESTABLISH CASE ON STRENGTH OF HIS OWN CASE
It is hornbook law that the legal burden of establishing a case and succeeding on the strength of his case as opposed to the weakness of the case of the defendant rests on the Appellant, who was the Plaintiff at the lower Court… The Appellant claimed the reliefs, so, it was for the Appellant to establish by credible evidence his entitlement to the reliefs sought. The burden of proof rested squarely on the Appellant. There was no legal burden on the Respondents to prove anything. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
TRADITIONAL EVIDENCE – REQUIREMENTS FOR PROVING TITLE THROUGH TRADITIONAL HISTORY
In the instant case the Plaintiff relied on traditional evidence in his claim to establish his title to the land in dispute. To succeed in proving title through traditional history, the Plaintiff must prove his title by definite and cogent evidence of tradition. The traditional history will succeed on its merit standing alone or fail where such history breaks down for being unreliable in nature or owing to its own internal contradictions. In order to rely on traditional history, a party must plead and prove; (a) Who founded the land; (b) In what manner the land was founded and; (c) The successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained.– Per Trial Court, quoted by UGOCHUKWU ANTHONY OGAKWU, J.C.A.
TRADITIONAL EVIDENCE – FAILURE TO ESTABLISH COGENT AND CREDIBLE TRADITIONAL HISTORY
PW1 only mentioned Village and District Heads as his source of information, without even stating their names or the village or district they represent, or the activities that happened in the land, and whether the subject matter in dispute is within their domains. Such piece of evidence is shallow to establish title in a land. The law is that, when a party is relying on traditional history he must state how and when the land was founded, and the activities that happened on the land up to when it was handed down to him. It should be noted that, when stating traditional history, though hearsay, it has to be with precision and clarity as to how it was founded and sustained. The history as claimed by PW 1 was loosely stated.– Per Trial Court, quoted by UGOCHUKWU ANTHONY OGAKWU, J.C.A.
TITLE TO LAND – REQUIREMENT TO PROVE TITLE OF VENDOR UNDER MAXIM NEMO DAT QUOD NON HABET
In other words, that party must not only plead and establish his title to the land, he must also plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute pursuant to the maxim, nemo dat quod non habet, meaning that no one can give that which he does not have. It is only if the person from whom he derived his title has a valid title to such land that he may lawfully pass on such title to anyone else. If the title of his vendor or grantor is defective and non-existent, then obviously, he will have no valid title to pass to anybody.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A. (quoting Iguh, JSC in NWADIOGBU vs. NNADOZIE)
UNCHALLENGED FINDINGS – EFFECT OF FAILURE TO CHALLENGE FINDINGS ON APPEAL
The concomitance of the Appellant’s failure to challenge the finding of the lower Court that the traditional history he pleaded and relied upon was not established is that the said finding remains valid, conclusive, subsisting, and binding. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LOCUS IN QUO – EFFECT OF UNCHALLENGED FINDINGS FROM COURT’S VISIT TO SCENE
So, the lower Court found as a fact and held that the disputed land is the land that was subject of the litigation and decision in Exhibit E. The Appellant has not challenged this finding on appeal. It therefore remains admitted, subsisting and binding. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LIS PENDENS – DOCTRINE PREVENTING EFFECTIVE TRANSFER OF PROPERTY DURING LITIGATION
Now, the doctrine of pendente lite nihil innovateur (lis pendens for short) which literally translates to nothing should change during the pendency of an action is fairly clear as to its essence. It affects a person who purchases property, the subject matter of litigation, not because he is caught by the doctrine of notice but because the law does not allow litigants, and gives to them, pending the litigation, rights in the property or dispute so as to prejudice the opposite party… Such is the effect of the doctrine of lis pendens that it has been held that any person who buys land subject of litigation is only gambling away his money. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LIS PENDENS – CONDITIONS FOR APPLICATION OF THE DOCTRINE
For the doctrine of lis pendens to apply, the party relying on it must prove that:
1. the object of the suit is to recover or assert title to specific property;
2. the property is real property; and
3. that at the time of the sale of the property, the suit in question was pending. The above three conditions are cumulative and must co-exist for the doctrine to apply. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
RES JUDICATA – DEFINITION AND PURPOSE OF THE DOCTRINE
The action by the Appellant brought into play the doctrine of estoppel per rem judicatam or res judicata. The expression res judicata simply connotes that the thing has been adjudicated. It implies that a verdict previously rendered in a Court of law would constitute a bar to a subsequent action on the same terms. The doctrine leverages on the Latinism interest rei publicae ut sit finis litium, meaning that it is in the interest of the parties that there should be an end to litigation. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
RES JUDICATA – CONDITIONS FOR SUSTAINABLE PLEA OF RES JUDICATA
It ought to be reiterated, that for a plea of res judicata to be sustainable in any given case, the following three conditions must be satisfied: (a) The parties (or the privies thereof) must be the same in the subsequent as well as the previous case;
(b) The issues and subject matter in the subsequent as well as the previous suits must be the same; and (c) The previous decision must have finally determined (decided) the issues between the respective parties. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A. (quoting Saulawa, JSC in PATRICK vs. INEC)
PRIVIES – CLASSIFICATION OF PRIVIES IN RELATION TO RES JUDICATA
In dealing with the terminology ‘privies’ in relation to the doctrine of res judicata in COKER vs. SANYAOLU (1976) LPELR (877) 1 at 21, Idigbe, JSC stated as follows: ‘Privies are of three classes and they are: 1. Privies in blood (as ancestor and heir); 2. Privies in law (as testator and executor), and 3. Privies in estate … as vendor and purchaser, lessor and lessee …’– Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EVALUATION OF EVIDENCE – LIMITATION OF APPELLATE COURT’S JURISDICTION TO INTERFERE
Where the trial Court unquestionably evaluates the evidence and justifiably appraises the facts, as was the position in the present case, it is not the business of the Court of Appeal to substitute its own views for the findings of the trial Court… What the appeal Court ought to do is to find out whether there is evidence on which the trial Court have acted as it did. Once there is such sufficient evidence on record from which the trial Court arrived at its findings of fact, the appellate Court cannot interfere. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A. (quoting Iguh, JSC in AGBABIAKA vs. SAIBU)
APPEAL – BURDEN ON APPELLANT TO DEMONSTRATE ERROR AND PRESUMPTION OF CORRECTNESS
The law is that the conclusions of the trial Court on the facts are presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts… The onus is on an Appellant to satisfy the appellate Court that the decision on appeal is wrong. Where this is not done, the decision appealed against will be allowed to stand. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
CASES CITED
STATUTES REFERRED TO
1. Court of Appeal Act
2. Section 15 of the Court of Appeal Act