CORAM
DAN IBEKWE
DAN IBEKWE
PARTIES
GONI ABATCHA WULGO APPELLANTS
GOVS KATIYA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
APPEAL, COURT, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Appellant as Plaintiff had by the Writ of Summons, claimed against the Respondent as Defendant, a declaration of title over a piece of land covered by Certificate of Occupancy No. BO/3331 in the Old G.A.A. Maiduguri, an order of possession of the plot of land and injunctive reliefs. The Respondent, on his part filed a defence and denied the claim stating in his pleadings that he is the owner of the land in dispute having purchased it from one Hadiza A. Abubakar to whom a Certificate of occupancy was issued with No. BO/22931. At the close of evidence of witnesses, parties on both sides through their counsel respectively, filed written addresses and adopted same. The trial court in its judgement dismissed the claim hence, an appeal to this court.
HELD
Appeal Dismissed
ISSUES
Whether the lower court was right in dismissing the appellant’s claim?
RATIONES DECIDENDI
GROUND OF APPEAL – BASIS UPON WHICH AN APPELLATE COURT WILL STRIKE OUT A GROUND OF APPEAL
“It is settled law that where no issue is distilled from any given ground of appeal, the appellate court will strike out that ground on the settled law and practice firstly, that courts consider only the issues and not the grounds of appeal. Secondly, a ground of appeal not having any argument proffered to cover it, it is deemed abandoned and will be struck out. See the case of Sabira V. Yassin (2002) 2 SCNJ 14, 24; Ejemba Vs. Ibereme (2004) 7 SCNJ 130, 155; Ndime Vs. Okocha (1992) 7 NWLLR (Pt. 252) 129.”
NOTICE OF APPEAL – PROCEDURE TO BE ADOPTED IN QUESTIONING SOME GROUNDS IN A NOTICE OF APPEAL
“What strikes me in this exercise, relative to the Notice of Preliminary Objection taken, is the fact that the Notice of Objection was directed on grounds 4, 5 and 6 only, of the amended Notice and Grounds of Appeal. The Notice of Objection was not directed on other grounds to wit: grounds 1, 2 and 3 contained in the same amended Notice and Grounds of Appeal. In other words, the Preliminary Objection only challenged certain grounds and not all the grounds contained in the amended Notice and Grounds of Appeal. What I thought is the proper and the correct approach to matters as this, where only some and not all the grounds contained in the Notice of appeal or amended Notice of Appeal as the case may be, is or are being questioned or attacked, the procedure to follow should be by way of Motion on Notice seeking as it were, an order striking out those supposedly offensive or incompetent grounds of appeal and not by way of Preliminary Objection. A preliminary objection is filed when a Respondent is satisfied that there are some fundamental defects in the appellant’s process and the sole purpose being to terminate the appeal, usually on grounds of incompetence, see: Ndigwe V. Nwude (1999) 11NWLR (Pt. 626) 314; NEPA Vs. Ango (2001) 15 NWLR (Pt.737) 627; Ochegbudu V. Agbala (2014) LPELR-22650(CA).”
NOTICE OF APPEAL – PURPOSE OF A NOTICE OF APPEAL
“Every appeal or Notice of appeal thus, seeks to challenge the correctness or otherwise of the decision appealed against. The onus thus lies with the appellant who must satisfy the court in this appeal that the Judgment delivered at the trial court dismissing the claim for declaration of title to land was/is wrong or is against the weight of evidence which the appellant had adduced and placed before the trial court as the plaintiff”.
TITLE TO LAND – DUTIES OF A CLAIMANT IN A CLAIM FOR DECLARATION OF TITLE TO LAND
“In a claim for declaration of title to land or ownership, the first duty, for the claimant to address, is for him to establish the identity of the land to which his claim relates. See: Adomba & Ors Vs. Odieze (1990) 1 NWLR (Pt. 125) 165; Udeze Vs. Chidede (1990) 1 WLR (Pt. 125) Nwogu vs. Nwokorobia (2002) LPELR-11872 (CA). The second, is for him to establish the root of his title, stating in it, how through the intervening owners of the land before him he came to own the land in dispute. This is the story of the history of ownership and the devolution of interest through successive owners down the line from the original founder of the land to the claimant. Inagbera V. Ufomadu (2009) 6 SCNJ 182.”
IDENTITY OF LAND IN DISPUTE- MEANING OF IDENTITY OF LAND IN DISPUTE
“I will begin with the question of the identity of the land in dispute. It is the pivotal of any land matter: Ayawale Vs. Odusanmi (2011) 12 SCNJ 362. By identity of the land in dispute is meant the portion of land, the area, the size, the features by which the land is described and known by the parties on both sides either individually or collectively.”
IDENTITY OF LAND – INSTANCE WHERE A CLAIMANT IS ABSOLVED OF THE DUTY OF PROVING THE IDENTITY OF A LAND IN DISPUTE
“Where therefore the identity of the land claimed is not in dispute but is known to the parties, in this case, the claimant, is absolved from the duty of having to prove the identity of the land in dispute: See: Danjuma Tanko Vs. Osita Echandu (2010) 12 SCNJ 1”.
IDENTITY OF LAND – WHEN WILL THE IDENTITY OF LAND IN DISPUTE BECOME AN ISSUE?
“The question of the identity of land in dispute becomes an issue only when the defendant joins issues with the claimant on that point in the pleadings, otherwise not. See: Ogunyawo Vs. Oluwole (2009) PELR – 8720 (CA).
DECLARATION OF TITLE – DUTY OF A PARTY SEEKING AN ORDER OF DECLARATION OF TITLE
“The person who seeks the order for declaration of title in his favour must lead quality evidence to entitle him to the relief sought. He must succeed on the strength of his own case. He cannot succeed on the weakness of defence case. See Dada Vs. Dosonmu (2006) 9 SCNJ 31 1, Onisaodu Vs. Elewuju & Anr. (2006) 7 SCNJ 270.”
DECLARATION OF TITLE TO LAND – FACTS A PARTY SEEKING DECLARATION OF TITLE TO LAND IN DISPUTE MUST PLEAD AND PROVE
“The appellant who at the trial court sought a declaration of title to the land in dispute must plead and prove the following:-
(a) who founded the land.
(b) how he or they founded the land; and
(c) the particulars of the intervening owners through whom, he anchored his claim.
Failure to plead and lead evidence to prove those facts, the person claiming, as in this case, cannot be said he has proved his case. See: Agbaosi V. Imevbure (2014) 1 NWLR (Pt. 1389) 556, 558; Abibulu Vs. Ajayi (2014) 2 NWLR (Pt. 1392) 483, 500.”
PROOF OF TITLE TO LAND – WHETHER THE MERE PRODUCTION OF TITLE DOCUMENT IS SUFFICIENT PROOF OF TITLE TO LAND
“It is now settled that the production of documents of title has been acknowledged as one of the 5(five) ways by which a claimant can prove his case to any given piece of land. See the decision in the locus classisus, case of: Idundum V. Okumagba (1976) 9-10 SC 277, 246 and followed by a host of other decided cases including, Kyari V. Alkali (2001) 11 NWLR (Pt. 724) 412; Piaro v. Tenaro (1976) 12 SC 31 37; Nwadike Vs. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Suleimane Vs. Laga (2013) LPELR – 23223 (CA); Nze Vs. Onyeachugwo (2013) LPELR – 20678(CA). This however, does not mean that once a claimant purchases an instrument of grant, he is automatically entitled to that property which the instrument purports to grant. When that instrument is produced and relied upon, it inevitably comes with it the need for a court to inquire into and ask certain relevant questions such as ((a) whether the document is genuine and valid (b) whether the document has been executed, stamped and registered (c) whether the grantor is the rightful owner of the property he purports to grant (d) whether the grantor has the capacity and authority to make the grant (e) whether it has the effect claimed by the holder of the instrument. See. Kyari Vs. Alkali (supra).”
“INSTRUMENT”- DEFINITION OF “INSTRUMENT”
“An “Instrument” is defined as to mean: document affecting land in the state whereby one party (hereinafter called the grantor) confer, transfers, limits, charges, or extinguishes in favour of another party (called the grantee). See: Ogabimi Vs. Niger Construction Ltd (2006) 9 NWLR (Pt. 986) 474. In stround’s Judicial dictionary, the word “Instrument” is defined as “anything reduced to writing, a document of formal or solemn character.”
REGISTRABLE INSTRUMENT- WHETHER AN UNREGISTERED REGISTRABLE INSTRUMENT IS ADMISSIBLE TO PROVE TITLE
“An unregistered registrable instrument (as in Exhibit ‘A’ and there is evidence is on record that it was registered) is admissible only as evidence of payment of purchase price but is not admissible to prove or establish title. Same is not a valid document capable of transferring any title on estate. See Okoye V. Dumex Nig. (1983) 1 NWLR (Pt.4) 783 Asaquo Vs. Eyo 2013) LPELR – 20199 (CA).”
FRESH ISSUE ON APPEAL- REQUIREMENT FOR RAISING FRESH ISSUE ON APPEAL
“Since the party or counsel did not raise objection on document over the alleged alterations on that document, at the point of admission, and a record of that objection taken and noted at the court below, I think it is too late in the day to raise that point or issue anew before us in this appeal, unless leave was granted to that effect. See Ejuetami V. Laiya (2001) 18 NWLR (Pt. 746) 572; Translational Corporation of Nigeria Plc. Vs. Ankor Pointe Integrated Ltd (2015) LPELR -2594(CA).
PLEADINGS – PARTIES AND COURT ARE BOUND BY PLEADINGS
“It is settled law that, the court of law is not a Father Christmas, for the parties to an action and the court are bound by the pleadings of the parties. Hence, evidence of the facts not pleaded goes to no issue.”
CASES CITED