BABA ALH. KACHALLA KULLOMA VS NGUBDO SULE MODUBE & ORSMay 6, 2021
MRS MARTINA UGBOMAH & ANOR v. GOVERNOR OF ANAMBRA STATE & ORSMay 6, 2021
MRS. ROSEMARY ONWUSOR VS YAHI MAINA & ORS
(2021) Legalpedia (CA) 11919
In the Court of Appeal
HOLDEN AT GOMBE
Tuesday, March 16, 2021
Suite Number: CA/G/9/2020
JUMMAI HANNATU SANKEY
TUNDE O. AWOTOYE
MRS. ROSEMARY ONWUSOR || YAHI MAINA
AREA(S) OF LAW
JUDGMENT AND ORDER
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
By a specially endorsed Writ of Summons, the Appellant claimed against the Respondents, a declaration that the Claimant is the lawful and legal owner of Plot No: 56 covered by a right of occupancy No. 5203 measuring about 2500 square meter lying and situate at Pompomari Layout as specified BOTP/73; that the 1st -3rd Defendants act constituted trespass and perpetual injunction restraining the 1st 2nd& 3rd Defendants by themselves, agents, servants, privies and whosoever from further tempering with the said land. The 2nd Respondent counter-claimed a declaration that the 2nd Defendant/Counter-Claimant is the legal and lawful title holder of Plot No. 56 on BOTP/73 North Medium Density Layout, Maiduguri, Borno State with an area of about 2500 square metres covered by Right of Occupancy No. BO/5203 and sought an order of perpetual injunction restraining the Claimant, his agents, heirs/successors, privies, servants or workmen or howsoever described from trespassing into the said land in dispute. After pleadings were duly exchanged, hearing commenced with the Appellant, as Claimant, adducing evidence through four witnesses and two exhibits. The 1st 2nd and 4th Respondents/Defendants and four other witnesses testified for the defence and in proof of the counter-claim, while a total of five documents were tendered. The trial Court in a considered judgment dismissed the Appellant’s claim and granted the 2nd Respondent’s counter-claim. Dissatisfied with the trial court’s judgment, the Appellant has filed an appeal to this Court.
Appeal Succeeds In Part
Issues Of Determination:
Whether the Appellant has proved her case with cogent and credible evidence to be entitled to the declaratory relief sought? Whether the trial Court was right when it held that the counter-claim had been proved?
“An appeal is an invitation of a higher Court or appellate Court to review the decision of a lower Court in order to find out whether, on a proper consideration of the facts placed before the lower Court and the applicable law, the lower Court arrived at a correct decision – Ezenwaka V Okon (Pt. 1547); Egbe V Alhaji (1990) 1 NWLR (Pt. 128) 546; Oredoyin V Arowolo (1989) 4 NWLR (Pt. 114) 172. Thus, the duty of this Court is not to re-evaluate the evidence, which the lower Court has evaluated in the execution of its own duty as a trial Court; but to review the decision as to its correctness or otherwise in the light of the complaints of an Appellant. This is because unless the findings of the lower Court are perverse, that is, where it does not correspond with the evidence adduced before the lower Court, an appellate Court will not interfere. See Okoye V Obiase (2010) 3 FWLR (Pt. 531) 5255 where the apex Court held – “An appellate Court will not interfere with the findings by the lower Court unless the findings are perverse or the lower Court raised a wrong inference upon accepted facts or applied a wrong principle to such facts.” In this wise, it is not every slip, error or mistake of a trial Court that will lead to a reversal of the decision of the trial Court, unless it is of such a grave error that cannot sustain the Judgment – Olubode V Salami (Pt. 7) 282.
“It is the law that in civil cases, the proof of a case is on the party who asserts a fact. He has to prove same and the standard of proof is on a preponderance of evidence or on a balance of probabilities – Longe V CBN (2006) 3 NWLR (Pt. 967) 228; Itauma V Akpa-Ime (2000) 7 SC (Pt. II) 24. A claimant is not allowed to rely on the weakness of the opposite party in order to succeed, but must rely on the strength on his own case – Imam V Sheriff (2005) 4 NWLR (Pt. 914) 80; Elias V Omo-Bare (1982) 2 SC 25; Agbi V Ogbeh (2006) 11 NWLR (Pt. 990) 65.
“The same onus and standard of proof as applies to a claimant’s case, also applies to a counter-claimant’s case. Where the claimant or counter-claimant fails to discharge the burden of proof, his case will fail, as he who asserts must prove. He is not allowed to rest on the weakness of the defence, but to rely only on the strength of his own case. – Imam V Sheriff (supra); Elias V Omo-Bare (supra); Agbi V Ogbeh (supra).
“Specifically in respect of an action for the declaration of a right, the plaintiff must satisfy the Court by credible evidence that he is entitled to the right he claims. Thus, the claim for a declaration cannot be granted merely in default of defence or upon an admission by the defendant. Instead, a party who seeks declaratory reliefs is duty bound to succeed only on the strength of his case, without recourse to the defendant’s case – Mohammed V Wanmako (2017) LPELR-42667(SC) 24, A-B, per Aka’ahs, JSC; Andrew V INEC (2017) LPELR-48518(SC) 41, B-C, per Okoro, JSC; Ge Int’l Operations Nig Ltd V Q Oil & Gas Services Ltd (2016) LPELR-47999(SC) 29-30, F-A, per Ngwuta, JSC; Kwajaffa V BON Ltd (2004) LPELR-1727(SC) 22, E-F, per Musdapher, JSC (as he then was).
“I am equally bound to define the nature of declaratory reliefs, particularly in relation to land. The purpose of a declaratory relief sought from the Court is that it is essentially an equitable relief in which the plaintiff prays the Court, in the exercise of its discretionary jurisdiction, to pronounce on an existing state of affairs in law in his favour as may be discernible from the averments in his statement of claim – Osuji V Ekeocha (2009) LPELR-2816(SC) 31, F, per Adekeye, JSC. The Supreme Court in the case of Nduul V Wayo (2018) LPELR-45151(SC) 53-54, C-B, per Kekere-Ekun, JSC summed it up beautifully in this way: “Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted, even on an admission. The claimant is also not entitled to rely on the weakness of the defence, if any. It has been held that the rationale for this position of the law is that a claim for declaratory rights calls for the exercise of the Court’s discretionary powers in favour of the claimant. He must therefore place sufficient material before the Court to enable it exercise such discretion in his favour. See Williams V Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 @ 152; Ogolo V Ogolo (2003) 18 NWLR (Pt. 852) 494; Okoye V Nwankwo (supra). Reliefs 1-5 of the appellant’s Originating Summons, reproduced earlier in this judgment, are declaratory. Reliefs 6-11 are ancillary to the declaratory reliefs. The burden was therefore on the appellant to satisfy the Court that he was entitled to those reliefs, notwithstanding any perceived weakness of the defence.”
“While it is correct that a counter-claim is a separate claim from the main claim and is an independent action; it is also settled law that where the facts pleaded in the statement of defence are the same as those to be used for the counter-claim, it does not make sense to repeat them as pleadings for the counter-claim where the two are joined together, as in this case: statement of defence/counter-claim. A defendant is allowed to adopt his pleadings in his statement of defence for his counter-claim, which is what the 2nd Respondent did in this case. Where that is done, the claimant cannot be heard to allege that the counter-claim of the defendant/respondent is not founded on pleadings – Obanigba V Abibu (2021) 3 NWLR (Pt. 1762) 96, 108, B-C, D-E; Okonkwo V CCB (Nig) Plc (2003) 8 NWLR (Pt. 822) 347, 402-403, per Tobi, JSC.
“It is settled law that one of the recognized methods of proving title to land is by the production of valid and authentic documents of title – Idundun V Okumagba (1976) 9-10 NSCC (Vol. 10) 445; (1976) 9-10 SC 227; (1976) 1 NMLR 200. Such documents of title must however be genuine, valid and subsisting to qualify as title documents – Wadike V Ibekwe (1987) 4 NWLR (Pt. 67) 718. Nonetheless, it is not automatic that once an instrument of title to land is presented, it is acceptable as proof of ownership of the land therein granted or transferred by that instrument – Ngene V Igbo (2000) 4 NWLR (Pt. 651) 131.
“A document of title can only be acted upon by a Court as sufficient proof of ownership if the Court satisfies itself that the grant has the effect claimed by the holder of the instrument. Thus, a certificate of occupancy issued to a person is not conclusive of that person’s interest or title over the land for which it was granted. Such certificates or documents which are susceptible to nullification, are therefore not absolute – Adole V Gwar (2008) 11 NWLR (Pt. 1099) 562;Moneme V Atta (2011) LPELR-8972.
“Section 15 of the Land Registration Law, Cap 77, Laws of Borno State, 1994 provides: “No instrument shall be pleaded or given in evidence in any Court as affecting as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.” By section 2 of the Law, an instrument is defined as – “a document affecting land, whereby one party [the grantor], confers, transfers, limits, charges or extinguishes in favour of another party, [grantee], any right of title to or interest in land and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.” From the above, it is evident that all documents pertaining to or affecting land wherein one party purports to confer, transfer or vest title in land to or on another party, must be registered for it to be pleaded and given in evidence. Thus, a document affecting land can only be pleaded and admissible in evidence in Court where such document has been registered. The position of the law as stated in provisions similar to Sections 2 and 15 of the Registration Law (supra), has been expounded by the Supreme Court in a plethora of decisions. Therein, they held that once a document purports to transfer and/or confer interest in land or howsoever described, it becomes an instrument that must be registered – Orianzi V AG Rivers State (2017) LPELR-41737(SC); Niger Construction Ltd V Ogbimi (2001) 18 NWLR (Pt. 744) 83; Ikonne V Nwa Wachukwu (1991) 2 NWLR (Pt. 172) 214; Amankra V Zankley (1963) All NLR 304.
“However, the Supreme Court and this Court have also held that, while generally an instrument affecting land shall not be pleaded or given in evidence unless it is registered, a registrable instrument which has not been registered is admissible to prove equitable interest and to prove payment of purchase money or rent. Put another way, an unregistered registrable instrument though not admissible to prove title, is admissible to prove payment of money, and coupled with possession of land by the purchaser, it may give rise to an equitable interest – Hon. Comm. Land & Housing, Kwara State V Atanda (2007) 2 NWLR (Pt. 1018) 360; Obienu V Okeke (2006) 16 NWLR (Pt. 1005) 225. Thus, for a document to qualify as a a registrable instrument, it is necessary to ascertain the true import of the document. In Oredola Okeya Trading Co. V AG Kwara State (1992) 7 NWLR (Pt. 254) 412, the Supreme Court held that the disputed document in that case was a conveyance and registrable instrument which was inadmissible without registration. It was not a mere sale agreement. His lordship Nnaemeka-Agu, JSC, in his own contribution, had this to say: “Without doubt, Exhibit 1 on the face of it is an instrument. The fact that a document is called an agreement or estate contract will not exempt it from the requirement of registration if from its contents it is in fact an instrument of grant. What matters is the true import of the document. It should not have been admitted in evidence. It was therefore rightly expunged… An inadmissible document cannot be the proper basis for any declaration of right.” See also Molokwu V Divine Power Gospel Mission Int’l (2020) LPELR-498040(CA) 29-30, A, per Umar, JCA; Orianzi V AG Rivers State (2017) LPELR-41737(SC 55-56, E-B, per Augie, JSC; Jibiyal V Gowon (2017) LPELR-43305(CA) 11-15, B-C, per Mshelia, JCA; Olowolaramo V Umechukwu (2002) LPELR-7068(CA) 8-15, F-D, per Onnoghen, JCA (as he then was).
“In this regard, Sections 22(1) and 26 of the Land Use Act provide – “22. (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained. Any transaction or any instrument which purports to convey on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.” From these provisions, no alienation of the interest of the holder of a statutory right of occupancy in respect of a piece or parcel of land will be valid unless the consent of the Governor has been sought and obtained. It is also the law that it is the holder of a statutory right of occupancy that has the duty to apply for the Governor’s consent in respect of the land he wishes to transfer, assign, mortgage, etc – Bulet Int’l Nig Ltd V Olaniyi (2017) LPELR-42475(SC) 26-27, B, per Kekere-Ekun, JSC; Mbanefo V Agbu (2014) 6 NWLR (Pt. 1403) 238. In Union Bank Plc V Astra Builders (2010) LPELR-3383(SC) 25, C-D, Adekeye, JSC held curtly but firmly that – “By virtue of Section 26 of the Act, any agreement that alienates interest in land without the Governor’s consent is null and void.”
STATUS(ES) REFERRED TO
Land Registration Law, Cap 77, Laws of Borno State, 1994|Land Use Act|
A.Babawuro Esq. appears with A. Ahmad Esq. for the Appellant, holding the brief of A.S. Badagubi, Esq.|B.Yusuf Esq., Assistant Director, Civil Litigation, Borno State Ministry of Justice, appears for 1st and 3rd Respondents.|H.Waziri Esq., appears for 2nd Respondent.|Auwal Idris Esq., appears for 4th Respondent, holding the brief of Y.G. Bello Esq.|