Legalpedia Citation: (2024-03) Legalpedia 82266 (CA)

In the Court of Appeal

Holden At GOMBE

Thu Mar 14, 2024

Suit Number: CA/G/145/2022

CORAM

Ali Abubakar Babandi Gumel Justice

Ugochukwu Anthony Ogakwu Justice

Mohammed Danjuma Justice

PARTIES

HAJIYA RABI UMARU JIBRILLA

APPELLANTS

PROFESSOR HAMMAN TUKUR SA’AD

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, ISLAMIC LAW, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

SUMMARY OF FACTS

Both parties have claimed declaration to be the owner of the disputed property known as plot No. 3 Alou Close, Damboa Road GRA, otherwise known as located at Ashaka Street, behind Mohammed Indimi’s house Damboa Road Maiduguri.

The Appellant’s claim is that the disputed property belonged to her late father who gifted the property to her when she got married and that she has been in possession of the property since 1991.

The Respondent on the other hand claims that he is the owner of the property and that he holds a Certificate of Occupancy in respect thereof and that he had retained the Appellant’s father to build a house for him on the land. He claimed that after the construction of the house, the Appellant’s father suggested that someone be put in occupation so that the house would not lie fallow. The CW2, who was the Manager of the Appellant’s father, and who later married the Appellant, was then put into possession of the said house.

In its judgment, the lower Court dismissed the Appellant’s claim and entered judgment for the Respondent. The counter-claim was granted and the and the Counter-Claimant was declared the rightful holder of title over the house known as plot No. 3 Alou Close, Damboa Road GRA, otherwise known as located at Ashaka Street, behind Mohammed Indimi’s house Damboa Road Maiduguri.

The Appellant was dissatisfied with the decision of the lower Court and she appealed against the same hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether the decision of the lower Court that the evidence preponderated in favour of the Respondent is the correct decision?

RATIONES DECIDENDI

ISSUES FOR DETERMINATION – MEANING OF ISSUES FOR DETERMINATION – WHETHER NUMBER OF ISSUES FOR DETERMINATION GUARANTEE THE SUCCESS OF AN APPEAL

It is trite law that issues for determination in an appeal constitute the proposition of law or fact so cogent, weighty and compelling that when resolved in favour of a party will entitle such a party to judgment. It is not the number of issues that guarantees the success of an appeal. One or two substantial and qualitative issues for determination that are well thought out, researched, framed and presented have more positive effect on appeals than an army of trifling issues. See generally LABIYI vs. ANRETIOLA (1992) 8 NWLR (PT. 258) 139 at 159, UWAIFO vs. UWAIFO (2005) 3 NWLR (PT. 913) 479, ILOABACHIE vs. ILOABACHIE (2005) 13 NWLR (PT. 943) 695, SHIDDI vs. JIMKUTA (2023) LPELR (60289) 1 at 30-31 and IWUOHA vs. NIPOST (2003) LPELR (1569) 1 at 21-22. – Per U. A. Ogakwu, JCA

DECLARATORY RELIEFS – BURDEN AND STANDARD OF PROOF WHERE PARTIES CLAIM DECLARATORY RELIEFS

As the parties have both claimed declaration to be the owner of the disputed property, they each had the burden of succeeding on the strength of their case and not on the weakness of the defence. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 14, FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 568 and ASHIRU vs. OLUKOYA (2006)11 NWLR (PT 990) 1 at 19-20. – Per U. A. Ogakwu, JCA

TITLE TO LAND – WAYS OF PROVING TITLE TO LAND

It is settled that there are five ways of proving title to land. These are:

1. By traditional evidence.

2. By production of document of title.

3. By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner.

4. Long possession.

5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the owner of the land.

See IDUNDUN vs. OKUMAGBA (1976) 9-10 SC 277 or (1976) 1 NMLR 200 at 210-212, ODUNZE vs. NWOSU (2007) LPELR (2252) 1 at 67, NWABUOKU vs. ONWORDI (2006) LPELR (2082) 1 at 13-14, ADDAH vs. UBANDAWAKI (2015) LPELR (24266) 1 at 17-19 and ABE vs. DAMAWA (2022) LPELR (57829) 1 at 47. – Per U. A. Ogakwu, JCA

TITLE TO LAND – DUTY OF A CLAIMANT WHERE A CLAIMANT TRACES HIS TITLE TO LAND TO ANOTHER PERSON

It is abecedarian law that where a claimant traces his title to land to another person, he has the burden to also prove how that person got his title. See EYO vs. ONUOHA (2011) 11 NWLR (PT 1257) 1, OTANMA vs. YOUDUBAGHA (2006) 2 NWLR (PT 964) 337 at 359 and RAPHAEL vs. EZI (2015) 12 NWLR (PT 1472) 39 at 53. So, the Appellant had legal burden of not only establishing the gift intervivos but also her father’s title to the property, which title to the property she claimed her father gifted to her upon marriage. – Per U. A. Ogakwu, JCA

FINDINGS – WHERE THE FINDINGS OF A LOWER COURT ARE UNCHALLENGED

It is instructive that the Appellant has not challenged the above findings of the lower Court that the gift of the property to her was not proved, and that the basis of any possession and acts of ownership by her was the alleged gift. These findings not having been challenged remain valid, subsisting and binding with the result that the Appellant’s root of title was not proved: COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 20 and FIRST DEEPWATER DISCOVERY LTD vs. FAICECK PETROLEUM LTD (2020) LPELR (49783) 1 at 27. – Per U. A. Ogakwu, JCA

PROOF OF TITLE – WHETHER CERTIFICATE OF OCCUPANCY IS PROOF OF TITLE – WHERE NO TITLE IS SHOWN TO DISLODGE A CERTIFICATE OF OCCUPANCY

While it is correct that a Certificate of Occupancy is only prima facie proof of title, the Appellant has not shown any title to dislodge the said Certificate of Occupancy, Exhibit B, neither has she shown that the same is not genuine or valid; that the Borno State Government had no authority or capacity to issue the same; or that it does not have the effect of conferring title on the Respondent. See ROMAINE vs. ROMAINE (1992) LPELR (2953) 1 at 15-16, DABO vs. ABDULLAHI (2005) LPELR (903) 1 at 33-35 and AYANWALE vs ODUSAMI (2011) LPELR (8143) 1 at 27-28. – Per U. A. Ogakwu, JCA

POSSESSION – THE EFFECT/IMPORTANCE OF POSSESSION IN LAND DISPUTES – WHERE A PERSON HAS TITLE TO LAND THOUGH NOT IN PHYSICAL POSSESSION

The law is that possession is nine-tenths of the law and possession is presumed in favour of the person who has valid title to a disputed property. See ORLU vs. GOGO-ABITE (2010) LPELR (2769) 1 at 36, AKINTERINWA vs. OLADUNJOYE (2000) 6 NWLR (PT 659) 92 and AYINLA vs. SIJUWOLA (1984) 1 SCNLR 410. In ZANEN VERSTOEP & CO. (NIG) LTD vs. FOUR STAR IND. LTD (2016) LPELR (41258) 1 at 23-24, I was privileged to state as follows:

“The law is that a person in possession is presumed to be entitled to the land he occupies against the whole world except the true owner thereof. See OWOADE vs. OMITOLA (1988) 2 NWLR (PT. 77) 413 and OTUNLA vs. OGUNOWO (2004) 6 NWLR (PT. 868) 184 at 200. For the Appellant to be deemed to be in actual physical possession between the period 1988/89 and 1993 when it admitted it was put out of possession by agents of Lagos State Government, it has to be shown that the Appellant has a title over the land in dispute. In CARRENA vs. AROWOLO (2008) LPELR (833) 1 at 18, Tabai, JSC stated:

‘A person who has title over a piece of land, though not in de facto physical possession is deemed in the eyes of the law, to be the person in possession. This is because the law attaches possession to title and ascribed it to the person who has title. Such possession is the legal possession which is sometimes also called constructive possession.’”

In the light of the above, even though the Respondent may not have been in de facto physical possession of the property, the fact that the law attaches possession to title and ascribes possession, albeit, constructive legal possession, to the person who has title, connotes that the Appellant cannot successfully found any claim on her adverse possession which is at best trespassory when faced with the adjudged better title of the Respondent. See OGUEJIOFOR vs. NWAKALOR (2011) 34 WRN 135 at 160, BELLO vs. KARIMU (2011) LPELR (8822) 1 at 24-25 and DANJUMA vs. SCC NIG LTD (2016) LPELR (41553) 1 at 55-56. This being so, the Appellant’s adverse possession cannot ground any equitable defence of laches and acquiescence or application of the Islamic Law of prescription (Hauzi) since the Respondent, the person with title in the eyes of the law has always been in possession of the property. See AKANDE vs. ALAGBE (2000) LPELR (6912) 1 at 52-53. – Per U. A. Ogakwu,JCA

COURTS – DUTY OF TRIAL JUDGES/COURTS – CONDUCT OF APPELLATE COURTS TOWARDS EVALUATION OF EVIDENCE BY TRIAL COURTS – DUTY OF AN APPELLANT TO SATISFY THE APPELLATE COURT THAT THE DECISION ON APPEAL IS WRONG

Without a doubt, the primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is settled law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. However, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48.

I have, against the background of these settled principles of law on the evaluation of evidence and ascription of probative value thereto, insightfully considered the evidence on record, and it is translucent that the lower Court correctly appraised the evidence and the findings it made are not perverse. For the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47, AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98.

The evaluation of evidence and the findings made by the lower Court in this matter are not perverse; therefore, an appellate Court will not lightly interfere with the same unless for compelling reasons. Indeed, an appellate Court is loath to interfere with such findings of facts. See OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT. 47) 370, MAKINDE vs. AKINWALE (2000) 1 SC 89, TERIBA vs. ADEYEMO (2010) LPELR (3143) 1 at 15-16, ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 30, ANYANWU vs. UZOWUAKA (2009) LPELR (515) 1 at 17-18 and AGBOMEJI vs. BAKARE (1998) 9 NWLR (PT. 564) 1. There are no compelling reasons which have been demonstrated by the Appellant and based on which this Court can interfere. Accordingly, there is absolutely no basis on which this Court can intervene. 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:MACAULAY vs. TUKURU (1881-1911) 1 NLR 35 at 40, AKINLOYE vs. EYIYOLA (1968) NMLR 92 at 95, OBISANYA vs. NWOKO (1974) 6 SC 69 at 80, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 326-330 and OBODO vs. OGBA (1987) 1 NSCC (VOL. 18) 416 at 421. – Per U. A. Ogakwu, JCA

CASES CITED

STATUTES REFERRED TO

Nil

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