1. BILLIRI LOCAL GOVERNMENT COUNCIL
2. AUDU TAHIR (District Head Tanglang)
3. DANLADI MAGAJI (Village Head of Kulgul)
4. ARDO GIDADO
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
This is an Appeal against the decision of the Gombe State High Court of Justice, delivered on the 2nd April, 2012 in Suit No. GM/150/2007 in which, Judgment was entered in favour of the Respondents and against the Appellant.
The Appellant before this Court was the Plaintiff at the trial High Court of Gombe. He took out a Writ of summons against the Defendants (now Respondents) on 23-07-07, first in the name of HARUNA YAKUBU which was later substituted with AHMADU FALKE, which substitution was effected vide the grant of a motion on notice dated 29-08-07 (at pages 12 to 22 of the Record), Ruling delivered on 08-10-07 (at pages 114 to 120 of the Record), wherein the present Appellant/Plaintiff sued the Respondents in a representative capacity on behalf of the Sarkin Baka Family. The Plaintiff claimed the piece of land referred to as Yola Popandi Kulgul as belonging to his family and other families he represented, while the Defendants contend that the land claimed had been acquired as a grazing reserve by the 1st Respondent in 1963. The parties are ad idem in respect of the name of the land in dispute and the land is well known to the parties in dispute as Yola Popandi Kulgul (paragraph 3 (b) of the Defendants affidavit as well as paragraph 13 of the Statement of Defence at pages 24 and 30 respectively of the printed Record of Appeal). At the close of trial, the suit of the Appellant was dismissed by the lower Court on 02-04-12. Dissatisfied, the Appellant filed this Appeal vide a Notice and Grounds of Appeal dated on 22-06-12, wherein he complained on eight grounds.
The crux of the Appellants claim as Plaintiff is that the land known and called Yala Popandi Kulgul, is owned by the Plaintiff and his siblings, children of late Sarkin Baka. They gave a portion of the land to a Fulani herdsman called Jagaba, to occupy temporarily. The District Head of Tanglang at the time, Abubakar Gaude, an uncle to Yakubu Sarkin Baka, mandated the latter to show Jagaba the place known as Yola Popandi Kulgul to reside temporarily. The Fulani man remained on the land peacefully until the siblings of Jagaba started laying claim to the ownership of the land after the death of the Plaintiffs father, eight years before the commencement of the suit at the lower Court. Conversely, however, the Defendants claim that the area in dispute is a grazing reserve acquired since 1963 by the 1st Defendant, Billiri Local Government Council.
In line with the Rules guiding the procedure of this Court, parties exchanged their respective briefs of argument. At the hearing of the Appeal on 24-02-16, Chief Caleb Ubale Esq, learned Counsel for the Appellant, with him Ayuba Esq, adopted the Appellants Brief of argument deemed duly filed on 28-10-15 and relied on the arguments therein as the Appellants arguments in the Appeal. He urged the Court to allow the Appeal, set aside the Judgment of the lower Court and grant all the reliefs sought by the Plaintiff at the lower Court. While Emmanuel Nwaekwe Esq., learned Counsel for the Respondents, appearing with Maigari A. Lakata Esq. and Atna Kuyembo Esq., adopted the Respondents Brief of argument deemed properly filed on 04-02-16. He relied on the arguments contained therein as the Respondents arguments in the Appeal in urging the Court to dismiss the Appeal and affirm the Judgment of the trial Court.
Whereas learned Counsel for the Appellant formulated four issues for determination from his eight grounds of appeal, the Respondents distilled two issues. The Appellants issues are set out hereunder:
1. Whether the Appellant did not prove his case on a preponderance of evidence both in his pleading and on the oral evidence (Grounds 2, 3, 4, 6, & 8).
2. Whether the Respondents have proved the acquisition as claimed in law (Ground 5).
3. Whether or not the land in dispute was clearly described by the Appellant (Ground 1).
4. Whether the exhibits rejected were properly rejected in law when the original is in the custody of the Respondent, and if the rejection did not occasion a miscarriage of justice (Ground 7).
The issues distilled by the Respondents are:
(1) Whether in reconciling the pleadings, testimonies and exhibits it could said that the Appellant discharged the burden placed on him to merit Judgment in his favour (Grounds 1, 2, 3, 4, 5, 6, and 8).
(2) Whether the Exhibits rejected were legally admissible (Ground 7).
Having given an in-depth consideration to the two sets of issues formulated by the parties, I am of the view that issues one, two and three crafted by the Appellant seek out the same answer as issue one distilled by the Respondent; while issue four of the Appellant and issue two of the Respondent are synonymous. I will therefore address the issues in that order.
Issues one, two and three of the Appellant taken together with issue one of the Respondent:
Learned Counsel for the Appellant submits that since the law is that he who asserts must prove by credible evidence, (Section 136 of the Evidence Act, 2011 (as amended) and Agbaje V Fashola (2008) All FWLR (Pt. 443) 1302 at 1317), it is incumbent on the Defendants to prove the acquisition of the land in 1963, who acquired it and from whom. He argues that apart from stating the alleged fact of acquisition, the pleadings did not state from whom the land was acquired or who received compensation for the acquisition. In the course of the trial, the Plaintiff adduced evidence through six witnesses who narrated the history of the land and how the Defendants came to use the land.
Counsel submits that the evidence of PW1 was not contradicted or controverted under cross examination. He stated that the Fulani herdsman came onto the land as recently as 1998, and not 1963. The boundary neighbors of the land include Buba Yako to the east, Ishaku Ladigo to the south and PW1 also to the east. PW2, Joseph Manu was also a boundary witness as his land is to the west of the Plaintiffs land, He also bought Ishaku Ladigos portion of the land to the south. PW3 Antiya Mai was a retired veterinary supervisor who served from 1956 to 1987 with the cattle reservation in Tangale Waje. He testified that, whereas grazing reserves were created from Sabon layi, Banganje and Lapandin Latin, Popandi Kulgul was not one of the places reserved as a grazing area. Indeed, that while he was in service, no area was reserved in Billiri as a grazing reserve. In addition, that all reserved areas are documented and such documents kept by the Local Government. PW4, Hassan Natumbo testified that he was aware that the Plaintiff, amongst others he named, used to farm the area along with him. PW5, a witness on subpoena, did not produce the document he was subpoenaed to produce. PW6, Haruna Falke, the Plaintiffs brother, narrated how the family came to possess the land in dispute and all they have done to secure ownership of the land. His history of the land was not faulted nor disputed under cross-examination.
Counsel submits that the Defendants also called in seven witnesses in their defence of the suit. He contends that none of the witnesses was able to establish the root of the land in dispute: DW1, Alhaji Audi Peto, testified that the land was reserved in 1997 and not 1963 as pleaded in the Statement of defence, but didnt tender any document to show how the area became a grazing reserve. DW2, Audu Tahir, the District Head of Tanglang and 2nd Defendant in the suit, stated that the land became a grazing reserve in 1963/1964, thus contradicting the DW1. Like the DW2, he did not produce any document to substantiate this assertion. He however claimed that the area was carved out as a grazing reserve by the Tangale Waje Native Authority and is the property of the Local Government. He admitted under cross examination that he has never seen any documents showing that compensation was paid to the real owners of the land. DW3, Ardo Gidado, is a cattle rearer and Ardo, and has been on the land for 12 years, during which time he also cultivated the land. DW4. David Sani inherited land from his father, who in turn inherited the land from his own father. He shared boundaries with Buba. The District Head informed him that the area was reserved in 2007 and so he stopped cultivating the land in 2009. Counsel contends that his evidence supports the Plaintiffs case. DW5, Danladi Magaji, is the Village Head of Kulgul. He testified that it was also the District Head who told him that the area was reserved. However, he doesnt know who the land was acquired from. DW6, Joshua Usman, was Chairman of a settlement Committee set up by the Military Administrator to settle disputes between farmers and herdsmen, and in respect grazing reserves and cattle routes, water pumps and vaccination centres in 1997. He testified that the dispute on the land in the area was reported to the Committee and they visited same. The Committee then ordered the people on the land to vacate the land after they confirmed that the place is a reserved area. He however did not produce any documentary evidence to substantiate this. He states that the Plaintiffs refused to vacate the land claiming that it was their property, and that therefore the Committee fined them for encroachment. Under cross examination, he admitted that for an area to be reserved, it has to be backed by law and that Government often pays compensation for such acquisitions. He could not remember if the area had been surveyed. Counsel submits that the witness made un-substantiated claims, lacking veracity and with no documentary evidence to support same, and even as the Committee had a secretary to record its proceedings in the person of Gabriel Yilwa, no minutes were produced before the Court. DW7, Iliya Bello, is a civil servant with the Veterinary Livestock Department of Gombe State and was an overseer for cattle routes and grazing reserves. He stated that there are documents containing all the grazing reserves and cattle routes in Billiri Local Government Area but failed to produce any before the Court. He claimed the area was carved out in 1962, 1963 and 1964 as a grazing reserve. Counsel submits that the witness lacked the legal capacity to give evidence as a staff of the Veterinary Livestock Department of Gombe State since he was not subpoenaed. However, that even if his evidence were to be considered, he had no documentary evidence to substantiate his assertions.
Counsel therefore submits that the Plaintiffs witnesses were consistent and un-shaken in establishing their root of title to the land, Yola Popandi Kulgul, through historical facts before the Court, which were uncontroverted. The Plaintiff stated that it was an inherited family land which they have been farming without any disturbance or claim until only eight years before this suit, and that the evidence of some defence witnesses, such as DW4, lays credence to these facts. He contends that these facts having been proved evidentially, the burden shifts to the defence to prove that the land had been acquired by the Government as a grazing reserve, which assertion formed the crux of their defence. Counsel submits that they failed to do so as Government Reserves are not a matter of oral evidence, being documentary affairs of the Government. He submits that no documents were presented to the Court to prove any acquisition at any time of the land area known and called Yola Popandi Kulgul.
Counsel further submits that from the totality of the evidence, it is glaring that the Plaintiff discharged the burden placed on him by law under Section 135 of the Evidence Act, which settled the issue that whoever desires any Court to give Judgment as to the existence of any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. He relies on Maritime Academy of Nigeria V Association Quantity Surveyors (2008) All FWLR (Pt. 406) 1872 at 1876. He argues that by Section 135(2) of the Evidence Act, it is the duty of the Defendants to prove to the Court how the area in dispute was acquired and made a grazing reserve, the Plaintiff having established by evidence how they became the owners of the area; that the Plaintiff, having established by evidence how he came by the land, the Defendants would fail and must fail having failed to show how the area in dispute was acquired and made a grazing reserve by necessary documentary evidence. He relies on West Africa Cotton Limited V Ibrahim Haruna (2008) All FWLR (Pt. 1942) at 1944. He submits that from the totality of the evidence adduced by the Plaintiff, the Plaintiff discharged the burden placed upon him by law, and is entitled to Judgment.
Counsel submits that the Respondents in their Joint Statement of Defence pleaded in paragraph 3(a) that the land was acquired in 1963 by the Native Authority and made a grazing reserve. In paragraph 3(b), they conceded that the land was acquired from about seven families, which include Baka family and others. Also in paragraph 3(d), they claimed that the Plaintiffs vacated the land immediately after the acquisition by the Native Authority. He submits that by this defence, acquisition has been put up as an issue by the Joint Statement of Defence, and that having made it an issue, the Respondent must prove same, as he who asserts must prove. He contends that, of all the defence witnesses, none of them was able to prove how the land belonging to seven families, which includes the Plaintiffs land, was acquired, yet the lower Court believed the Respondents witnesses.
Counsel also submits that the land in dispute had been sufficiently described by the Appellant, and the description of the land was accepted by the Respondents. The Appellants pleaded that the land is known as Yola Popondi Kulkul (paragraphs 21 & 23A of the 3rd Amended Statement of claim at page 59 of the Record). He submits that that the Respondents, by their defence, agreed that the land was owned by the Baka family. They however claimed that they acquired the land for grazing, but did not state the extent of the land acquired, neither did they give the land a different name. The Defendants never disputed nor put the identity of the land in issue. If however the Court found difficulty in the identity of the land, parties were not asked to address the Court further on it. He relied on University of Calabar V Umoh (2011) All FWLR (Pt 589) 1196 at 1197. In addition, he contends that the Appellant also pleaded that the area of land is about 25 hectares. The Defendants did not give a contrary description of land both in their pleadings and evidence. He therefore submits that the land had been sufficiently described by the Plaintiffs, and the parties knew the land in issue, therefore it was not in contention.
In response to the Appellants submissions, learned Counsel for the Respondents submits that it is trite that an appellate court only intervenes to set aside the decision arrived at by a trial court when the trial Court fails to make good use or advantage it had of seeing and hearing the witnesses, particularly in a case where credibility is not involved. He submits that the onus is on the Plaintiff to adduce credible evidence to prove his case before it becomes necessary for the Defendant to call evidence to rebut the Plaintiffs assertions; and also that the weakness in the Defendants case does not prove the Plaintiffs case. He also submits that evidence at variance with pleadings goes to no issue. He relies on Ngillari V Nicon (1998) 8 NWLR (Pt. 560) 1 at 20, para A; Nwaga V Regd Trustees of Recreation Club (2004) FWLR (Pt. 190) 1360; & Olorunfemi V Asho (1999) 65 LRCN 28.
Counsel submits that in instant case, the Plaintiff failed woefully to discharge this burden placed upon him and the lower Court was abundantly correct in dismissing the claim. He submits that the Plaintiff called the following as witnesses: PW1 who stated that his land is bordering the land in dispute to the west; which is contrary to the boundary description by DW5. PW1 stated that the Plaintiff got his land through Sarkin Baka, now deceased, and this is in support of the testimony of DW4 who said Sarkin Baka was one of the families initially owning the disputed land before the 1963 acquisition. PW1 stated that the first District Head of Tanglang asked Yakubu and London to loan him the farmland so that he can give same to the Fulani cattle rearer, and that the first Fulani man on the land was Alhaji Waziri. He contends that this statement is in total conflict with paragraphs 6, 7 and 8 of the Statement of claim.
Counsel further submits that PW2 testified that he is at the western part of Ahmadu Falke and this is in conflict with the testimony of PW1 who said the Fulani came unto the land in 1998. He contends that the presence of the Fulani cattle rearers certifies the fact that that land is a grazing reserve. PW3 under cross-examination also admitted the long time settlement of the Fulani when he said as a veterinary supervisor he used to go to Kulgul to vaccinate their cattle and to administer medicines on the Fulani cattle, now 44 years ago. Counsel submits that PW4 testified that he hired the said land in 2007 from PW2 and planted on it before the Local Government stopped him. PW5, the deputy secretary of Billiri Local Government Council, testified but did not tender the documents of handing over. PW6`s statement contradicts paragraphs 6, 7 and 8 of the Plaintiffs pleading, as well as the testimonies of PW1 and PW2. Counsel therefore submits that in reconciling the testimonies of these witnesses, the following salient facts emerge:
(i) In respect of when and how the Fulani settled on the land in dispute, the testimonies where all contradictory. However, it suggests that it was not in 1998 as claimed by the witnesses;
(ii) Virtually all the testimonies contradict the Plaintiffs Statement of claim;
(iii) There was no concrete evidence led and nothing to the contrary from the State or Local Government supporting the non-acquisition of the land as stated in paragraph 20 of the claim.
Counsel submits that the Plaintiff has to succeed on the strength of his case, as by Section 133 Evidence Act, he who alleges must prove. Where, either by commission or omission he fails to discharge this burden, his case must fail. He relies on Momah V Vars Petroleum (2000) 75 LRCN 502 at 509; Aderoumu V Arasie (2000) 79 LRCN 425. Counsel contends that the case of the Plaintiff having failed, the Defendants have no obligation to assist him to succeed. He relies on Elema V Akenzua (2000) 79 LRCN 2048; Eze V Atasie (2000) 79 LRCN 198; Fasikun II V Oluron II (1999) 65 LRCN 114 at 118.
Counsel further submits that the Defendants, in contesting the claim adduced the following evidence: DW1 stated that they met Fulani rearers with no farms on the land; PW2 and PW3 admitted that Fulanis are cattle rearers, DW1, in their meeting with the trespassers, admitted that they would vacate the land. He stated that it was obviously clear from their visit that the land had been a grazing field over a long time without any sign of cultivation. He contends that the testimony of this witness was not controverted. Counsel submits that the testimonies of DW2, DW3 and DW4 also remained uncontroverted and unchallenged and were all supportive of the averments in the Defendants pleadings. DW5, the Village Head of Kulgul stated that the disputed land is under his jurisdiction and that since he was young he has known the area as a grazing reserve because he saw Fulani cattle rearers staying on the land. Counsel contends that this testimony controverts the Plaintiffs claim but confirms the Statement of defence. In respect of the DW6, the chairman of the Herdsmen/Rearers Prevention of Disputes Committee, the witness stated that his committee visited the grazing reserve and indeed in fact and in law did confirm the land to be a grazing reserve. This is in line with the pleadings of the Defendants. For DW7, a veterinary field overseer, he testified that the land was carved as a grazing reserve between 1962 to 1964, he confirmed the creation of the committee, and the Edict of 1996 (Exhibit D1) setting up the investigative committee. Counsel submits that from the evidence adduced by the Defendants, the following facts emerge:
(i) That the land is an acquired grazing reserve since 1963;
(ii) That the Fulani cattle rearers have been staying on this land since 1963;
(iii) That this grazing reserve was acquired from about seven families who have all acquiesced, as it is only the family of the Plaintiff that have lately began to trespass into this land for farming;
(iv) That the Committee created by Government is backed and regulated by law since 1996;
(v) That the entry of the Fulanis as rearers on this land was since 1963 and not 1998 as alleged by the Plaintiff; and
(vi) That the Plaintiffs have known the families to be on this land since 1963 as the features on the land clearly suggest that it is a grazing reserve.
Counsel therefore submits that the Plaintiff failed to establish the claim and so it must fail. He submits further that since the Defendants did not enter a counter claim, there was no obligation upon them to establish anything, as it is trite that he who alleges must prove. He relies on Ajero V Ugorji (1999) 71 LRCN 2875 at 2882; & Uchendu & Obasi V Ogboni (1999) 68 LRCN 925 at 933.
In addition, Counsel submits that, assuming but not conceding that the land was not an acquired grazing reserve, the Plaintiffs have constructively acquiesced and it is therefore equitable to so declare it, since they have been unable to explain the continuous stay of the Fulani cattle rearers on the land since 1963, until 1998 when they woke from their malicious slumber. He relies on Ramsden V Dyson L.R. H.L, 129, 140, 141.
In respect of the identity of the land, Counsel submits that the mere mention of the name of a land in dispute without identifying clearly the area of the land to which a claim is related is not enough description to which evidence can be related in support of a partys claim. He submits that in this case, as the land being claimed was not identified and ascertained, the claim of the claimant will fail and will be dismissed. On the submission that the land was known to both parties, counsel submits that this is misconceived because the Defendants assert that land was acquired from seven families that includes the Appellants family. It was therefore incumbent upon the Plaintiff to prove his lands identity. He contends that the scenario herein is at variance with a situation where two individual litigants are disputing over possession or farm boundaries. He relies on Odiche V Chibogwu (1994) 7 NWLR (Pt. 354) 78; & Bankwa V Ogunshola (1938) 4 WACA 159. Counsel finally submits that the Plaintiff failed to prove his case and the trial Court rightly held as it did; and that the perceived weakness of the Defendants cannot aid him.
The law is trite that the burden of proof in a civil action is on the plaintiff who must discharge same through credible evidence and on a balance of probabilities, in order for the court to find in his favour. The burden first rests on the plaintiff, because the assertion of the existence or non-existence of a fact in his claim is usually made by a plaintiff seeking the court to make a determination in his favour. Thus, the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the court would be given if no evidence is produced on either side, regard being had to any presumption that may arise on the pleadings. See: Sections 131 & 132 of the Evidence Act 2011); Osadim V Tawo (2010) 6 NWLR (Pt. 1189) 155 at 179-80; Oladipo V Moba LGA (2010) 5 NWLR (Pt. 1186) 117 at 160; & Elemo V Omolade (1968) NMLR 359. Muhammad, JSC, in Okoye V Nwankwo (2014) LPELR-SC.234/2004, 1 at 42-46, summarized the law in these words:
Where the burden is a matter of law and pleading, it is described by different names by legal authors. Phipson, for instance, quoting from Lord Denning, calls it persuasive burden, legal burden, probate burden, ultimate burden, the burden of proof on the pleadings or the risk of non-persuasion . A person who fails to discharge a persuasive burden will lose on the issue in question. This burden rests upon a person whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleading and it is settled as a question of law remaining unchanged throughout the trial exactly where the pleading places it. It never shifts and it is always stable. The burden of proof in the second sense may shift constantly more as one scale of evidence or the other preponderates. In this sense, the onus rests on he who will fail if no evidence at all or no more evidence as the case may be, were given on either side. It rests before evidence is gone into upon the party asserting the affirmative of the issue. The burden of introducing evidence is thus, the obligation is on a party to adduce evidence on a particular fact introduced. Therefore, looking at the general principles burden of proof or onus of proof , the onus of proof is normally fixed by the state of the pleading and is on the plaintiff, where the defendant denies, to establish the allegation in the statement of claim with a view to proving the whole case as put by him.
Furthermore, in line with the decision in Bassey V Pamol Nigeria Ltd (2009) 6 NWLR (Pt. 1136) 36 at 59, and a host of other authorities, in order for a plaintiff to succeed in a claim for declaration of title to land, the court must be satisfied as to:
a. the precise nature of the title claimed, that is whether it is the title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise; and
b. Evidence establishing title, of the nature claimed.
Where the claim is based on traditional evidence, in order to qualify as reliable traditional testimony, a party relying on same must plead the name or names of the founder of the land and those after him, the person the land devolved to and the last successor, without leaving any gaps. See Fayemi V Awe (2009) 15 NWLR (Pt. 1164) 315 at 340.
Furthermore, the law is certain that litigation is fought on pleadings. They are the pillars upon which a partys case is founded. Not only do they give the other side notice of the case they are to meet at the trial, they also define the parameters of the case. In other words, parties are bound by their pleadings. Any evidence led on facts not pleaded goes to no issue, while any pleadings in respect of which no evidence is led, are deemed abandoned. In effect, where the pleadings are deficient, no matter how cogent the evidence led, the case will fail. See Anyafulu V Meka (2014) LPELR-SC.247/2005; & Nwokorobia V Nwogu (2009) 10 NWLR (Pt. 1150) 553. It is therefore useful to review the pleadings with a view to isolating the facts that were in issue before the lower Court.
The Appellant as Plaintiff, in his 3rd Amended Statement of claim (at pages 55 to 60 of the printed Record of proceedings) pleaded inter alia as follows:
1. The Plaintiff is the grandson of the late Sarkin Baka, and represents the family of Sarkin Baka and he resides in Billiri within the jurisdiction of the Honourable Court.
6. The Plaintiff pleads that during the lifetime of their grandparent, Sarkin Baka, a Fulani man by name Jagaba came and wanted to stay temporarily being a herdsman, and their grandparent as the District Head of Tanglang gave part of their land for him to stay temporarily.
8. That it was the Yakubu Sarkin Baka who was mandated to show the Fulani man where to stay in the farmland known and called Yola Popandi Kulkul.
9. That the stay of the 1st Fulani man did not interfere and did not stop the Plaintiff from farming their land which was cleared and cultivated by their grandparent.
10. That all this while the Fulani man never claimed ownership of the area in dispute until after his death.
11. The land in dispute was never acquired nor sold to the Fulanis.
12. That recently about eight years ago, the Fulani mans siblings started laying claim to ownership of the land in dispute.
13. That again the 2nd and 3rd Defendants backed by the 1st Defendant set up a committee known as the farmers and herdsmen (prevention and settlement of dispute) committee.
14. That it was later claimed that the land belonging to the Plaintiff is a grazing reserve and that the Plaintiff and their cohorts are encroachers on the land.
15. That the said land has never been a grazing reserve because the coming of the first Fulani man was not too long and how he settled was a well-known history to the Plaintiff, they neither bought, cleared nor inherited the land in question.
20. The Plaintiff insists that their land is not a grazing reserve acquired by either the State Government or the Billiri Local government Area
21. The land in dispute is shared by the Plaintiffs family and Londons family and they have known their common boundary over the years.
The Defendants, in their defence to the claim and in response to these pleadings by the Plaintiff, stated inter alia thus in their Joint Statement of defence (at pages 29 to 31 of the Record):
3. Defendants deny paragraphs 5, 6, 7, 8, 9 and 10 of the claim put the plaintiffs to prove and in lieu further states:
a. That the land was acquired since 1963 by the native authority and made a grazing reserve.
b. That the land acquired belonged to about 7 families which includes but not limited to Baka, London, Buba Yako, David Lasari, Ishaku Landigo etc. and the Fulanis settled therein since 1963 and even have their houses.
d. That the plaintiffs vacated the land immediately after the acquisition by the NA.
4. Defendants avers (sic) that the Fulanis has (sic) never and can never claim ownership of the said land.
7. That the land since 1963 was acquired for grazing overriding individual interest.
8. That the land was acquired as grazing field for the Fulanis and not that they bought or cleared it.
11. That the plaintiff remains a trespasser infringing on lawful and quiet operations of an acquired grazing land.
13. That the boundary is not in dispute and the land was originally owned by about 7 families credible evidence shall be led in prove (sic) of this in court.
From the pleadings of the parties, whereas the Plaintiff claimed ownership of the land in conjunction with other named families, and also that the land was not acquired as a grazing reserve; the Defendants, admitted that the land formerly belonged to the Plaintiffs family and six other families, yet they firmly asserted that it was acquired by the Native Authority and made into a grazing reserve. In addition, they state that the boundaries of the land, the subject-matter of the suit, were not in dispute. Consequently, by virtue of the law on pleadings, that which is admitted needs no further proof. Therefore, the Defendants, having basically admitted ownership of the land by the Plaintiff and others prior to the alleged acquisition by the Native Authority and its conversion into a grazing reserve, and having also admitted that the boundaries of the land were not in dispute, now bore the onus of proving that the Plaintiff no longer owned the land by reason of its compulsory acquisition by the 1st Defendant, the successor of the Native Authority. What this means is that the Defendants who made this positive assertion was obliged to prove same. This is more so that, what is admitted needs no further proof. Since however, pleadings are not evidence, the parties proceeded to adduce evidence to establish the facts pleaded therein.
In proof of the pleadings, the Plaintiff called six witnesses. The Plaintiffs witnesses, in line with the Statement of claim, testified that the land was first owned by Sarkin Baka (the Plaintiffs grandfather), from whom the Plaintiffs father inherited same and passed it over to him. Thus, the Plaintiff, through his witnesses, traced his root of title to his grandfather, Sarkin Baka. PW1, Kadiel London, in addition to giving boundary evidence, stated that the Plaintiff inherited the land from Sarkin Baka who owned the land. PW2, Joseph Manu, who also gave boundary evidence, inherited his own land from his father and also bought Ishaku Ladigos land. He has been cultivating his land for 25 years and has no knowledge of any acquisition of the land in dispute. PW3, Antiya Mai, a 90 year old man, is a retired veterinary supervisor. While acknowledging that in the course of his work, he was aware that grazing reserves were created in Billiri area, Popandi Kulgul was not one of those areas reserved as a grazing area. He stated that all reserved areas were documented and kept by the Local Government. PW4, Hassan Natumbo, who once cultivated land he hired from Yusuf Manu in the area, stated that he was asked to leave the land by the Local Government because it had been reserved. The Plaintiff, PW1, PW2 and one David Sani also cultivated their farms there. PW6, Haruna Falke, (the Plaintiffs brother), gave a narration of the history of the familys ownership of the land in line with the pleadings.
On the other hand the Defendants in their defence and also in proof of their assertion that the land was acquired by the 1st Defendant, called a total of seven witnesses. DW1, Alhaji Audu Peto, claimed the land was reserved in 1997, and not 1963 as stated in the Statement of defence; that while the London family agreed to leave the land, the Baka family refused to leave the land. DW2, Audu Tahir, the District Head of Tanglang (and 2nd Defendant), on his part stated that the land was carved out and acquired in 1963/1964 by Tangale Waja Native Authority and converted into a grazing reserve. Even though he claimed to have seen a document converting the land into a grazing reserve by the 1st Defendant, none was tendered. DW4, David Sani, owns farmland in the area, which he inherited from his father who also inherited it from his grandfather. His father never told him the land was a grazing area. However, it was the District Head (PW2) who told him in 2007 that the area was reserved, and so he left his land in 2009. DW5, Danladi Magaji, the village head (and 3rd Defendant), stated that it was DW2 (the District Head) who told him that the land was reserved. DW6, Joseph Usman, was the Chairman of the Settlement Committee set up by the Military Administrator pursuant to a 1996 Edict (Exhibit D1), to settle disputes between farmers and herdsmen, grazing reserves, cattle routes, water pump and vaccination centres, claimed the Committee confirmed that the land was a grazing reserve and so ordered the people on the land to vacate the land. He offered no documentary evidence to substantiate the Committees finding and to explain the basis of its finding. Under cross-examination, he admitted that when a place is designated as a grazing reserve, it is backed by law and compensation is paid to the owners of the land by Government. He did not know if the reserved area was surveyed. DW7, Iliya Bello, a Field Overseer for cattle routes and grazing reserves, testified that there were documents containing all grazing reserves and cattle routes in Billiri Local Government Area, but he produced none in Court. He claimed the area was carved out as a grazing reserve in 1962, 1963 and 1964, but he took the Plaintiff and others before the Committee because of the Edict of 1996 (Exhibit D1).
Thus, it is significant that even the Defendants admitted and affirmed the ownership of the land by Sarkin Baka, (the Plaintiff`s grandfather), before the alleged acquisition and conversion of same into a grazing reserve. For ease of reference, DW2, the District Head of Tanglang under whose domain Kulkul village falls, testified (at page 202 of the printed Record of Appeal) thus:
Yes, I heard from the owners of the farm land that was curved (sic) out as a grazing reserve, that the owners were one Yakubu Sarkin Baka, London Mela, Ishaku Latingo, David Lasari and Buba Yako
Under cross-examination at pages 204 to 205 of the Record, the DW2 further stated as follows:
I saw a document which shows that the area in dispute is grazing reserve. I cannot call the name of the document but it was made by the Native Authority Tangale Waje Traditional Council. Yes it is the Native Authority that transformed into the Local Government Council. Yes the grazing reserve is the property of the Local Government. Yes the Local Government keeps custody and maintain (sic) all grazing reserves. Yes, as District Head I am an employee of the Billiri Local Government Council. I have not seen any document in respect of compensation in respect of the grazing reserve
Yes the people I earlier mentioned were the original owners of this grazing reserve. The land got out of the hands of these people in 1963/1964 when the area was demarcated as a grazing reserve. (Emphasis supplied)
Also, DW5 who is the Village Head of Kulkul, testified at page 212 of the Record thus:
The families that originally owned this land are the father to DW4, Sani, then London Lamela, Baba Ishaku, Buba Yako and Baka`s family, the present Plaintiff.
Thus, by a combination of the evidence adduced by the Plaintiff and the testimonies of the defence witnesses, the Plaintiff succeed in establishing his title to the land in dispute through his grandfather, which pleading/fact was not even disputed by the Defendants. Instead, it was affirmed that Sarkin Baka, the Plaintiffs grandfather, was one of the original owners of the land. The only point of contention or area of divergence between the parties is the Defendants contention that the land was subsequently acquired as a grazing reserve by the Native Authority, the predecessor i.e. of Billiri Local Government Council and 1st Defendant before the lower Court.
Hence, from the synopsis of the evidence before the lower Court, the Appellant and his witnesses properly established his root of title of the land in the area known as Yola Popandi Kulgul, and as afore-stated, the pleadings on this were admitted upfront by the Defendants, and therefore were proved by a minimum of evidence. Even the evidence of other of the Defendants witnesses such as DW1 and DW4, in addition to that of DW2, who were also aware of the ownership of the disputed land by the Appellants family before the so-called acquisition and conversion into a grazing reserve, gave more fillip and support to the Appellants claim. The burden therefore shifted to the Defendants to prove the assertion in their pleadings that, even though the area of land had previously belonged to the Plaintiffs family and others, it had since been acquired and converted into a grazing reserve by the Tangale Waja Native Authourity, now Billiri Local Government Council, (1st Respondent). This was the core of their defence. However, their evidence woefully fell far short of proving this assertion, as both the issue of Government acquisition of the land, as well as the conversion of the land into a grazing reserve, are matters that are documented (as readily admitted by some of the defence witnesses), and certainly not a simple matter of oral history and oral evidence. However, no document whatsoever was tendered to prove the Defendants pleadings that the area known as Yola Popandi Kulgul had been acquired and converted into a grazing reserve by Government, the 1st Respondent.
It is the law under Section 167 (d) of the Evidence Act, 2011, that a Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of a particular case and in particular, the court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. See COP V Tobin (2009) 10 NWLR (Pt. 1148) 62 at 105. What this means is that, where a document is in the custody of a party, that party owes it a duty to produce such a document before the Court. Where such a party fails to do so, it raises the presumption under section 167 (d) of the Evidence Act that if produced, it would be unfavorable to him.
Also, by virtue of section 131(1) of the Evidence Act, 2011, the law is certain that whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts actually exist. As aforesaid, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any Law that the proof of that fact shall lie on any particular person. See Osadim V Taiwo (supra) at 180; & Ojo V Kamalu (2005) 18 NWLR (Pt. 958) 523. In Kwara V Innocent (2009) 1 NWLR (Pt. 1121) 179 at 228-229, the position of the law was articulated as follows:
He who asserts a fact, has the burden of proving that fact. In all cases basically and primarily, it is the Plaintiff who asserts. The burden is therefore upon him to prove his case with cogent and credible evidence. Thus, the Plaintiff has the burden of proving his claim and his case is liable to be dismissed where he fails to discharge the burden. Where the Plaintiff discharges the burden of proof on him the burden shifts to the defence to rebut the Plaintiffs claim. (Emphasis supplied).
Thus, by virtue of Section 133(2) of the Evidence Act, the burden of proof is not static. The onus of proof of particular facts may shift from one party to another. Where a party asserts the existence or non-existence of a particular fact and has adduced credible evidence in proof of that fact, the burden will shift to the party against whom the Judgment of the Court will be given if no further evidence is led in rebuttal, and so on and so forth, until all the issues in controversy have been proved. See Ukpo V Imoke (2009) 1 NWLR (Pt. 1121) 90 at 143-144.
Thus, having admitted that the land originally belonged to the Appellants grandfather and other named persons, the assertion that the Appellants land had subsequently been acquired and converted into a grazing reserve, which fact was pleaded by the Defendants as their defence to the claim, has to be proved by them by adducing cogent and credible evidence to establish same. They would, in addition, have to prove the compulsory acquisition, as alleged, by the predecessor of the 1st Respondent, Tangale Waja Native Authority in 1962, 1963, 1964, 1997 or 1998, as variously claimed in the pleadings and by the evidence of the Defendants witnesses. One of such requirements is the payment of compensation to the original title holders of the land as well as other requirements as set out in the Land Use Act, 1978. Failure to do so is fatal to the Defendants assertion that the 1st Respondent acquired the land from the Plaintiffs family as well as from the other owners of the land and converted it into a grazing reserve.
The law is certain that no one, including Government, can deprive a holder/occupier of his land unless the land is acquired in accordance with the relevant provisions of the Land Use Act, for instance, for overriding public interest or for public purposes. In particular, by virtue of Section 28 of the Land Use Act, payment of compensation is a condition precedent to the validity of any such acquisition. See: Ononuju V AG Anambra State (2009) 10 NWLR (Pt. 1148) 182 at 208; & Ogunleye V Oni (1990) 2 NWLR (Pt. 135) 745. Therefore, the Respondents had the onus of proving to the lower Court that the land was really compulsorily acquired by the 1st Respondent by establishing the conditions precedent to such an acquisition which, inter alia is establishing the purpose of such acquisition, giving the requisite notices as well as paying properly assessed compensation as outlined in the substantive law as well as a plethora of authorities.
It is a correct statement of the law that, in a suit seeking a declaration of title to a piece of land, it is of uttermost importance and a factor which cannot be dispensed with, for a plaintiff to adequately describe the land for which he is claiming title so that the defendant will not be in doubt about the area of land under contest. The onus is on him to prove clearly the boundaries of the land claimed. Thus, a court will not grant a decree of declaration of title in respect of an undefined area. In Udechukwu V Ezemuo (2009) 14 NWLR (Pt. 1162) 525 at 542, the state of the law was articulated thus:
A Plaintiff who claims a declaration of title to land must prove clearly the area of land to which his claim relates and the boundaries thereof. Such Plaintiff must describe with certainty as to entitle him to a declaration of title and injunction.
Therefore, based on the position of the law, a plaintiff must be certain about the area of land he is claiming title to, and not leave it in the realm of speculation so as not to raise any uncertainty in respect of the area of land claimed. He must be able to adduce evidence to depict the boundaries of the land to which he lays claim. Where the claim is based on traditional title, evidence must be adduced through the owners of neighboring lands sharing boundaries with the land in dispute.
The test for the establishment of the identity of the land is whether a surveyor can, from the record, produce an accurate plan of such land. While it is the law that a plan is not a sine qua non, some description is necessary to make a disputed land ascertainable. Where a plaintiff pleads a survey plan, he must tender it at the trial. Where he fails to do so, the court is entitled to invoke Section 167 (d) of the Evidence Act, 2011. However, a survey plan is not necessary where the identity of the land is not in dispute or where there is cogent evidence of the identity of the land. But where the identity of the land is in dispute, then the identity of the land is in issue. See Aremu V Adetoro (2007) LPELR-546/SC, 1 at 10 & 17.
From the Plaintiffs 3rd Amended Statement of Claim, paragraphs 8 and 18 thereof (pages 56 & 57 of the Record), the farmland in dispute is commonly known as Yola Popandi Kulkul and is more than 25 hectares. It is also pleaded in paragraph 21 (page 59 of the Record) thus:
21. The land in dispute is shared by the Plaintiffs family and Londons family and they have known their common boundary over the years.
More importantly, the Defendants, in responding to the claim, admitted expressly in paragraph 13 of the Statement of Defence (at page 30 of the Record) as follows:
13. That the boundary is not in dispute and the land was originally owned by about seven (7) families credible evidence shall be led in prove (sic) of this in court. (Emphasis supplied)
Clearly therefore, issues were not joined on the identity of the land since it was well known to the parties and its identity and extent even admitted by the Defendants. It was therefore not a fact in issue before the lower Court. Nonetheless, it is significant that, even in the face of this admission by the Defendants that the boundaries of the land claimed were not in dispute, the Appellant still went ahead to adduce boundary evidence through his witnesses. PW1 testified (at page 134 of the Record) in these terms:
Yes I know the land in dispute very well I am a neighbor to Ahmadu Falke to the west Buba Yako is in the eastern part of Ahmadu Falke. Ishaku Ladigo is by the south I also border Ahmadu Falke by the north. Myself and family are parties in this suit. I am a party to the suit because I have a farm in the area under dispute.
PW2 also testified at page 138-139 of the Record thus:
Yes, I know Ahmadu Falke I know Ahmadu because he (sic) share the same boundary with his farm. The said farm is situated at Popandi Yola. My farm is at the western part of that of Ahmadu Falke. Yes I can tell the court how I got my farm. I inherited the farm from my father Manu. I also bought a portion from Ishaku Ladigo. The one I bought from Ishaku is at the southern part of that of the plaintiff Ahmadu Falke
The farm of London and Manu my father is one and the same.
PW6, the erstwhile Plaintiff before he was substituted by the present Plaintiff Plaintiff/Appellant, also testified in confirmation of the evidence of the PW1 and PW2 thus at page 178 of the Record:
Yes I know David Lasari. Yes I know Ishaku Ladigo yes, David Lasari and Ishaku Ladigo have lands in this area in dispute
The Defendants did not adduce any contrary evidence to controvert these pieces of evidence. Thus, the Plaintiff also established by positive evidence the boundaries of the land in such a way that it is identifiable, sufficient for a declaration to be based thereon.
Additionally, while there is nothing in law to stop a court from raising an issue suo motu provided that such an issue will lead to a proper determination of the dispute between the parties, where a court decides to raise an issue suo muto, parties must be given the opportunity to address the court on the new issue raised. Failure to afford parties an opportunity to so address the court on an issue which was not canvassed by any of the parties will negatively impact on their right to fair hearing and would be said to have occasioned a miscarriage of justice. See Onah V Okenwa (2010) 7 NWLR (Pt. 1194) 512 at 531; & Leventis (Nig) Plc V Akpu (2007) 17 NWLR (Pt. 1063) 416.
In the instant case, it was the trial Court that raised the issue of the identity of the land suo motu, and without giving the parties an opportunity to address it on the issue, proceeded to wrongly find that the identity of the land was not proved. This infringed on the rights of the parties to fair hearing. This is more so as, given the state of the pleadings and the evidence adduced before the lower Court, it was not the place of the lower Court to have raised the issue of the identity of the land in dispute since the parties did not join issues on it. Where the issue of the identity of the land was not raised by any of the parties, it is not the business of the court to venture into the issue of the identity of the land, which has not been laid before it by any of the parties. In Anyanwu V Uzowuaka (2009) 13 NWLR (Pt. 159) 445 at 475 it was held as follows:
The identity of a land in dispute will be an issue, if and only if, the Defendant in his Statement of Defence makes it one. That is if the Defendant disputes specifically either the area or the features shown on the Plaintiffs plan. When such is the case, then the identity of the land becomes an issue.
See also Nwobodo Ezeudu V Isaac Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 220. Since therefore the parties were of one mind about the identity of the land claimed, and there was no dispute as to its identity, the findings of the lower Court thereon were perverse. Therefore, on the whole and for the reasons stated, issues one, two and three distilled by the Appellant and issue one distilled by the Respondent are resolved in favour of the Appellant, and against the Respondents.
Issue four of the Appellant taken together with issue two of the Respondent:
Under these issues, learned Counsel for the Appellant submits that the Appellant pleaded seven documents in paragraph 20 of the 3rd Amended Statement of Claim (pages 58 to 59 of the Record) and put the 1st Respondent on notice to produce the originals of same at the hearing of the suit. This was to show that the land in dispute was not a grazing reserve as it is not contained in any of the handing-over notes of the 1st Respondent, Billiri Local Government Council which transformed from a Native Authority. He submits thats the Plaintiffs case that their land is not a grazing reserve acquired by either the State Government or Billiri Local Government. Thus, in proof of this, the Plaintiff pleaded certain documents in the possession of Billiri Local Government Council and put it on notice to produce the original copies through the Secretary of the 1st Defendant. Counsel therefore contends that the refusal of the PW5 to produce the pleaded documents presumes that the documents will work against the Respondents if produced, and that the Court was at liberty to admit the copies produced by the Appellant. He argues that the documents were thus wrongly rejected by the lower Court, and relies on UBN Plc V Ishola (2001) 15 NWLR (Pt. 735) 47 at 54.
Counsel submits that since the Respondents refused to produce the hand-over notes even when they were placed on notice to produce same, the rejection of the photocopies produced by the Appellants was wrong in law. He therefore urged the Court to step into the shoes of the lower Court to admit the documents and use same in deciding the dispute between the parties, since they speak for themselves.
On his part, Counsel for the Respondent submits that the lower Court was absolutely right to have rejected the un-certified documents sought to be tendered by the Plaintiff. He submits that it was incumbent on the Plaintiff to have led evidence on the documents and then to tender the photocopies they had through the witness, PW5, but they negligently did not re-call the witness. He submits that the negligence of the Plaintiff in not laying the proper foundation before tendering the documents cannot be transferred to the lower Court which, he contends, rightly rejected same.
Counsel also submits that evidence must be relevant for it to be admissible, but it could be relevant without being admissible. He argues that the documents sought to be tendered by the Appellants are regulated by Sections 102, 104, 105 and 106 of the Evidence Act, LFN 2011 (as amended), and the failure to fulfill the mandatory provisions of the Act renders the documents inadmissible in law. He submits that the only type of secondary evidence admissible is a certified true copy, and relies on the following authorities: In the case of the Obatuna Family & others (1969) 4 NMLR 24; PDP V Sidi Alli (2004) FWLR (Pt. 220) 1371: & Tabik Invest V GTBank Plc (2011) 46 (Pt. 2) 648 at 667.
Counsel contends that, in the instant case, the record and the document sought to be tendered, even though relevant, were inadmissible and the lower Court rightly rejected same. He argues that it is misconceived to seek to import the provisions of Section (167) (d) of the Evidence Act in the circumstance of this case, and relies on NSC (Nig) Ltd V Inns-Palmar (1992) 1 NWLR (Pt. 218) 422. Counsel submits that since the Appellant claimed that the documents exist, it had the duty to lead evidence of same. Since PW5 testified that he could find only two of the documents and the Appellant had photocopies of same, and yet he failed or negligently did not make them legally admissible, the trial Court was correct to have so rejected them. He urged the Court to so hold.
The law is trite that the only categories of public documents admissible in evidence are the original documents themselves, and in the absence of such original copies, their certified true copies and no other. See Kwara V Innocent (supra) 578; lleogu V LPDC (2009) 17 NWLR (Pt. 1171) 614; Onobruchere V Esegine (1986) 1 NWLR (Pt. 19) 799; & Araka V Egbue (2003) 17 NWLR (Pt. 848) 1. Therefore, where public documents are tendered before a Court, even where they are relevant, in so far as they are not the originals, they must be duly certified in accordance with the law in order for them to be admissible in Court. By virtue of section 97(2) (c) of the Evidence Act, the secondary evidence of a public document admissible in evidence is a certified copy of the document and no other kind of secondary evidence. Also, by virtue of Section 97(1) (e) & (f) of the Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is a document of which a certified true copy is permitted to be given in evidence. See Kwara V Innocent (supra) at 586.
In the instant case, the Plaintiff/Appellant produced and tendered public documents which were photocopies and not original copies, which the trial Court rejected. The trial Court was undoubtedly right in rejecting the un-certified secondary documents tendered since the only secondary evidence of public documents admissible are certified true copies of such. Thus, the lower Court was obliged in law to reject those documents since the proper procedure for making such copies of public documents admissible was not complied to.
In any event, where evidence is by law inadmissible, it ought never to be acted upon by any Court (whether of first instance or on Appeal), and it is immaterial that its admission in evidence was as a result of the consent of the opposite party or of that party`s default in failing to make an objection at the proper time. Neither a trial Court nor any of the parties before a Court have the power to admit or consent to the admission of a document that is in no way or circumstance admissible in law. See Oladipo V Moba LGA (supra) at 163; & Alao V Akano (2005) 11 NWLR (Pt. 935) 160.
On the submission of the Appellant that the presumption in Section 167 (d) of the Evidence Act should be invoked against the Respondents for not producing the original copies of these documents in spite of being placed on notice to produce same in the Statement of claim, since the Appellant was in possession of photocopies of the said documents which it could have tendered in the absence of the original copies, but through its own default, it neglected to have the same duly certified in accordance with the relevant laws to render them admissible, it would be premature to invoke the provision of Section 167 (d) of the Act against the Respondents. It is therefore for these reasons that I also resolve issue four crafted by the Appellant and issue two framed by the Respondent in favour of the Appellant.
Finally, I am mindful of the position of the law that the ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses, and an appeal court will not lightly interfere with same unless for compelling reasons. Also, that an appellate court should not ordinarily substitute its own views of the facts for those of the trial court, and will not interfere with findings of fact, except where wrongly applied to the circumstances of the case, or the conclusion reached was perverse of wrong. See Olodo V Josiah (2010) LPELR-SC.2/2003; Ogbechie V Onochie (1988) 1 NWLR (Pt. 470) 370; Nneji V Chukwu (1996) 10 NWLR (Pt. 578) 265; Nwosu V Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; & Ebba V Ogodo (1984) 1 SCNL 372.
The law is however equally firmly established that where a trial Court fails to make findings on material and important issues of fact by brushing them aside, or approaches the evidence called by the parties wrongly, the appellate court will have no alternative than to act accordingly as the circumstance dictates. See Ogbu V Wokonta (2005) ALL FWLR (Pt. 277) 815; Morenikeji V Adegbosin (2003) FWLR (Pt. 163) 45. It is therefore based on these reasons that I am duty-bound to set aside the defective findings of the trial Court.
Consequently, having resolved all the issues in favour of the Appellant, I find that the Appeal has merit. It succeeds and is allowed. Accordingly, I hereby set aside the Judgment of the High Court of Justice, Gombe State in Suit No. GM/150/2007 between Ahmadu Falke V Billiri Local Government Council & 3 others, delivered on 2nd April, 2012. In its stead, I enter Judgment for the Appellant in terms of paragraph 23 of the 3rd Amended Statement of Claim (at page 59 of the printed Record of Appeal) in the following terms:
1. It is hereby DECLARED that title to the piece of land known and called Yola Popandi Kulgul in Tanglang, Billiri Local Government Area of Gombe State is vested in the Appellant.
2. An ORDER of perpetual injunction is hereby made restraining the Respondents from any further acts of trespass on the land in question.
The Appellant are also awarded the sum of N50, 000.00 assessed as costs of the action.
SAIDU TANKO HUSAINI
I had the advantage of reading in draft the lead Judgment rendered by my brother, Jummai Hannatu Sankey, JCA with whom I agree in toto, the reasoning and conclusions thereat. My brother Justice, has said it all. However I should say by way of emphasis the fact that there is no dispute as to who the original owners of the land in dispute are. Indeed evidence coming from defence witnesses support the claim of the Plaintiff/Appellant and witnesses called by him that the Plaintiffs family is among the 7 (seven) families that originally owned the land in dispute.
The 1st defendants/appellants contention however is that the land in dispute was acquired by them from the original owners of the land and by the fact of this acquisition, title over the disputed land is now vested in the respondents, a fact which cast on the respondents the burden of proof of the facts of acquisition and derivation of title therefrom, being the party that assert affirmatively, the fact of acquisition, not withstanding that they are the defendants to the claim. This is so because the burden proof is never static. It oscillates like a pendulum in the light of the provision at Section 133 (1) (2) of the Evidence Act 2011 Cap E. 14. So, the Plaintiff has the initial or general burden to introduce his case and lead relevant evidence pursuant to subsection (1) of Section 133 and thereafter the burden shift as the case progresses, in this case to the defendant under subsection (2) of Section 133of Evidence Act to lead evidence of acquisition. See: Eseigbe V. Agholor (1993) 9 NWLR (Pt. 316)128, 144; Duru V. Nwosu (1989) 4 NWLR (Pt. 113) 24, 41. If therefore the defendant (respondent) fails as in this case, to offer any evidence in rebuttal the defendant has failed to discharge the onus of proof which by their own pleading has placed the burden of proof of facts of acquisition of the land in dispute. See: Eseibge V. Agholor (supra) and Gwami V. Ebule (1990) 5 NWLR (Pt. 149)201, 205. Be it noted that the onus is discharged on the balance of probability. See: Kwasalba (Nig) Ltd V. Okonkwo (1992) 1 NWLR (Pt. 218) 407, 416.
The burden cast on the Respondents is an enormous one. First, not only must their acts of acquisition be proved but respondents must show that all necessary pre-conditions from the acquisition of the land in dispute had been complied with as regards Notice before acquisitions. See: Nigerian Engineering Works Ltd Vs. Wenep Ltd (1991) 4 NWLR (Pt. 184) 157. See further: Yakubu V. Impresit Bakolori (2010) LPELR 5110 (CA). I will not go into the details form and contents the Notice is to take but it suffices to say here that the person or party as the 1st respondent herein cannot shy or run away from the responsibilities bestowed on it under section 6 and 44 of the Land Use Act. It is thus incumbent on the respondents (1st respondent) to prove that the person whose land (land in dispute) was acquired was duly compensated in line with Section 6 (5) of the Act. The right to payment of compensation is not only a Statutory right but a constitutional provision as guaranteed under Section 44 (1) of the 1999 Constitution of Federal Republic of Nigeria; 1999 (as amended). See: Ferguson & Anor Vs. Commissioner of Woks and Planning, Lagos State (1999) LPELR 8131 (CA). It is expected therefore that the rebuttal evidence of the respondent must highlight all these vital or necessary elements in their evidence on the claim to acquisition of the land in dispute if their case can be meaningful. Their evidence regrettably, is bereft of those facts as to lend credence to the fact that they as defendants have
failed to discharge the onus on them as required by law. Their claim to the acquisition of the land in dispute cannot stand, in the face of these obvious deficiencies in their evidence, same not having been proved. By this it means that the appeal to this court by the plaintiff is meritorious. It succeeds and same is allowed. I also abide by all the consequential orders contained in the lead Judgment.
BIOBELE ABRAHAM GEORGEWILL, JCA:
I have read in advance a draft of the lead judgment just delivered by my lord JUMMAI HANNATU SANKEY, JCA, and I am in complete agreement with the sound reasoning and inescapable findings and conclusions reached therein. I only wish to lend my support to the lead judgment by adding a few words of mine by way of my contribution.
On the pleadings of the parties and the evidence led before the court below as in the record of appeal, the crucial question on the certainty of the land in dispute was whether the identity of the land in dispute was put in issue by the Respondents as Defendants before the court below against the claim to title to the land in dispute by the Appellant? If the identity of the land in dispute was put in issue, then was it crucial to the just determination of the claims before the court below and what was the kind of evidence led in proof of the identity of the land in dispute, if it was put in issue?
On the pleadings and evidence of the Appellant as Plaintiff and the Respondents as Defendants, I am unable to see where the identity of the land in dispute, which was so obviously very well known to the parties, was put in issue. In law, the parties having not joined any issue on the identity of the land, though a very crucial precondition for success in an action for declaration of title to land, the court below lacks the jurisdictional competence to raise it as an issue suo motu and resolve same without calling on the parties to address it, no matter how zealous the court below had intended to do justice to the parties in the way it understood the respective cases of the parties to be. In law since the parties know very well the identity of the land over which they dispute its ownership, the issue of the identity of the land in dispute does not arise and ought not to have been allowed or raised suo motu by the court below, and worse still without even hearing from the parties, to becloud the real issues in contention between the parties.
I am aware that the first duty on a Plaintiff claiming a declaration of title to land is to establish with exactness the description, area, size and location of the land over which he seeks a declaration of title. However, he is relieved of this duty once the identity of the land is not put in issue by the Defendant and therefore, not in dispute as where the land in dispute is very well known to the parties. In law therefore, a survey plan or even a visit to the locus in quo by the court is not a sine quo non where there is no dispute as to the identity of the land in dispute and in such circumstances a survey plan ceases to be a desideratum in a claim of a declaration of title to land.
The primus place of identity of land in dispute in an action for declaration of title to land cannot be overemphasised and is underscored by the position of the law that unless and until the identity of the land in dispute is ascertained the issue of who owns it as between the parties does not even arise for consideration by the court. This is so because without the exact identity of the land in dispute over which a declaration of title is sought, there cannot be a declaration of title to any undetermined and indeterminate piece of land by the Court and thus in law a declaration of title cannot and will never be made where the land in dispute is not properly defined and ascertainable with precise boundaries. See Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182. See also Makaujuola V. Balogun (1989) 3 NWLR (Pt. 108) 122; Echenim Ofume V. Isaac Ngbeke (1994) 4 NWLR (Pt. 341) 746; Olosunde V. Oladele (1991) 4 NWLR (Pt. 188) 113; Shoshai Gambo V. Zindul Turdan (1993) 6 NWLR (Pt. 300) 1; Okiri V. Ifegha (2001) FWLR (Pt. 73) 140; Ojo V. Gbaroro (2006) 10 NWLR (Pt. 987) 123; NAS Ltd V. UBA Plc (2005) 14 NWLR (Pt. 945) 421; Buhari V. Obasanjo (2005) 2 NWLR (Pt. 910) 24.
In law therefore, the identity of the land in dispute is sacrosanct and must be proved unless it is not put in issue on the pleadings of the parties. In deciding whether the identity of the land in dispute was put in issue, the mere fact that the parties called it by different names or that they pleaded different boundary men alone will not suffice to tantamount to putting the identity of the land in dispute in issue. It must relate to the location, description, size, are and features of the land in dispute to amount ot putting the identity of the land in dispute. Authorities on this point are legion.
My lords, a review of some of these authorities is apt and will suffice as a befitting signpost to my agreement with the findings and conclusion in the lead judgment to the effect that the identity of the land in dispute, though crucial, was not put in dispute as it was very well known to the parties and thus ought not to have been in the due resolution of the real issues in dispute on the pleadings as exchanged between the parties before the court below. In Atanda V. Iliasu (2013) 18 WRN 1, Chukwuna Eneh JSC; in his contribution to the lead judgment had this to say:
The first duty on a party seeking a declaration of title to land before the court is to prove the area over which the party lays claim as per his writ of summons with certainty
In the same case, Ogunbiyi, JSC., who delivered the lead judgment had emphatically stated thus @ p. 18:
It is elementary to state therefore that the certainty of the identity of land in dispute is a sine quo non, a necessity...... It is also trite that the mere mentioning of the area is not enough. The description and extent of the boundaries must be proved with exactitude .............The test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate plan of such land..... The burden of proving identity of land will rest on the claimant only where it forms part of the subject matter and has been put in issue.........
In his own contribution in the same case, Rhodes - Vivour JSC., @ p. 32 commented thus:
The position of the law is that a party who claims declaration of title to land must show or satisfy the court with certainty the area of land in respect of which the claim is made. Failure to satisfy the Court would result in the claim being dismissed. It is desirable but not mandatory that a survey plan is produced by the plaintiff in claims for declaration of title. What the Court requires is for the land to precisely identified with the definitive certainty, and in discharging the requirement credible evidence can be led to identify the land in question.
In his contribution on this vexed issue, Muhammed JSC., (as then was now CJN), had pronounced with finality thus:
However where the identity of the land is not in issue, in the sense that parties known exactly the identity of the land the subject matter of the dispute between them, the requirement that the Plaintiff and/or parties prove(s) the identity of the land ceases to be a necessity
See generally Baruwa V. Ojunsola (1938) 4 WACA 159; Sokpu V. Agboze 91935) 2 WACA 291; Dedeze V. Chidebe (1990) 1 NWLR (Pt. 125) 19; Mark Ugbo V. Anthony Aburime (1994) 4 NWLR (Pt. 360) 1; Auta V. Ibe (2003) 1 NWLR (Pt. 387) 247; Ajao V. Adigun (1993) 3 NWLR (Pt. 282) 389; Ojiako V. Ewuru (1995) 9 MWLR (Pt. 420) 460; Maberi V. Alade (1987) 2 NWLR (Pt. 55) 101; Odiche V. Chibegwu (1994) 7 NWLR (pt. 354) 78; Efeifiroroye V. Okabete II (1991) 5 NWLR (Pt. 193) 517; Fatuade V. Oniweamunam (1990) 2 NWLR (Pt. 132) 322; Ekpaloka V. Umeh (1976) 9 10 SC 269; RTMCN V. Adeniji (2013) 19 NWLR (Pt. 1076) @ P. 126; Awote V. Owodunu (No. 2) 1987) 2 NWLR (Pt. 57) 366 @ P. 371; Kwadzo V. Adjei (1944) 10 WACA 274; Nwokorobia V. Nwoga (2009) 10 NWLR (Pt. 1150) 553; Lawson V. Afani Continental Co. Ltd. (2002) SCNLR 308; Asaba V. Asawu (1980) 5 7 SC 78; Garba V. Akacha (1966) NMLR 62; Banjo V. Aiyeketo (1973) 1 All NLR 201; B. F. N. V. Ibrahim (1998) 4 NWLR (Pt. 653) 350; Ogba V. Wokoma (2005) 15 NWLR (Pt. 944) 118; Makanjuola V. Balogun (1989) 3 NWLR (Pt. 108) 192.
In the instant case therefore, on the pleadings of the parties there was no duty on the Appellant to prove the identity of the land in dispute since both parties are agreed as to its identity and description which was very well known to the parties for such a sufficiently long period of time.
It is in the light of the above few words of mine and for the fuller illuminating reasons marshalled out in the lead judgment that I too hold that the appeal is pregnant with merit and perforce must succeed. I too allow the appeal and set aside the perverse judgment of the court below. I shall abide by the consequential orders made in the lead judgment.?
Chief Caleb Ubale Esq. with him Ayuba Esq., appears for the Appellant.
Emmanuel Nwaekwe Esq. appears with Maigari A. Lakata Esq. and Atna Kuyembo Esq., for the Respondents.