DANJUMA & ANOR V KASHERE

DANJUMA & ANOR V KASHERE


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON WEDNESDAY, 18TH JULY, 2018


Suit No: CA/J/300/2017

CITATION:

Before Their Lordships:

ADZIRA GANA MSHELIA, JCA

ADAMU JAURO, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

YUSUF DANJUMA
HAJIYA FATU JALINGO
(APPELLANTS)

AND

DINA A. KASHERE
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Cause of Action – What cause of action means

A cause of action means the fact or facts which gives or give a person a right to judicial redress or relief against another. It is the factual situation which gives a person the right to judicial relief. A cause of action arises when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. A cause of action would arise when the factual situation set out by the plaintiff which, if substantiated, would entitle him to a remedy against the defendant. See Muomah V. Spring Bank Plc (2009)3 NWLR (Pt. 680) Pg. 553 at Pg. 570 paras C-F, Omotayo V. N.R.C. (1992)7 NWLR (pt. 254) 471. Per JAURO, JCA. read in context

2. Cause of Action – When a cause of action can be said to have arisen

 The law is settled that the factors relevant for limitation law to be operative are claims of events dependent upon the date the cause of action arises. The two necessary pre-requisites which must first exist and usher in cause of action are the existence of persons who can sue and be sued, as well as the requirement that all material facts needing proof must have happened. See Faroly Establishment V. N.N.P.C. (2011)5 NWLR (Pt. 1241) Pg. 457 at Pg. 479 paras E.F. Per JAURO, JCA. read in context

B. EVIDENCE

3. Conflicting Evidence – Effect of conflicting evidence on proof of title

The Appellants adduced conflicting evidence as to their root of title, in respect of the land in dispute. The contradiction in the evidence is material, as it goes to the root of the defendant’s case. The law is trite that a party who gave a conflicting evidence to establish a root of title, cannot have a pronouncement as to title in his favour. See Section 90 (1)(c) of the Evidence Act and the following cases: Imb (Nig) Ltd. V. Dabiri (1998) NWLR (Pt. 563), Onwuzuruike V. Edoziem (2016)6 NWLR (Pt. 108) 215 at 239, Nrumah V. Ebuzoeme (2013)13 NWLR (2013) 13 NWLR (Pt.1372) 474 at 478, Adewuyi V. Odukwe (2005)131 LRCN 2510, Adusei V. Adebayo (2012)3 NWLR (Pt. 1288) 534 at 552, Eyo V. Onuoha (2011) 195 LRCN 38 at 84. It has been settled that where the traditional history put forward by a plaintiff and in the instant case, counter-claimant is not reliable, the claimant is said to have failed to prove title based on it and the claim ought to be dismissed. See Fasoro V. Beyioku (1988)2 NWLR (Pt. 76) 263; Adebayo V. Ighodalo (1996)5 NWLR (Pt. 450) 507 and Balogun V. Akanji (1988)1 NWLR (Pt. 7 ) 301 at 322.  Per JAURO, JCA. read in context

4. Public Document – The condition a public document must satisfy before it can be admitted in evidence

In the instant case exhibit ‘A’ that was tendered through the Respondent before the trial Court was an uncertified photocopy of the original, though the document is a public document. The law is trite that before a photocopy of a public document can be tendered and admitted by the Court, it must be certified. A public document is deemed certified if the following have been observed.
a. Payment for the certification

b. There is an endorsement or certificate that it is a true copy of the document in question;

c. The endorsement or certificate is dated and signed by the officer responsible for certification with his name and official title.
See Tabik Invest. Ltd. V. G.T.B. Plc. (2011)17 NWLR (Pt. 1276) Pg. 262 paras A-B. In the instant case, exhibit ‘A’ is a photocopy of a public document and was not certified. The document being a photocopy and not certified is inadmissible in law. Per JAURO, JCA. read in context

5. Rejection of Evidence – When an appellate Court can disregard or expunge an evidence admitted by the trial Court

Where it is established as in the instant case that a trial Court wrongly admitted a piece of evidence, an appellate Court has the competence and duty to expunge, disregard or exclude the evidence. See Ayanwale V. Atanda (1988)1 NWLR (Pt. 68) 22, Eghobamien V. F.M.B.N (200217 NWLR (Pt. 797) 488 Alh. Sab’riyyu Shittu V. Otunba Oyewole Fashawe (2005)14 NWLR (Pt. 946) 617, Onochie V. Odogwu (2006)6 NWLR (Pt. 975) 65, Dagaci Of Dere & Ors. V. Dagaci Of Ebwa & Ors. (2006)7 NWLR (Pt. 979) 382. Therefore exhibit ‘A’ being a photocopy of a public document admitted without certification was wrongly admitted by the trial Court. The document is hereby expunged from the record. Per JAURO, JCA. read in context

6. Unchallenged Evidence – Effect of unchallenged evidence

The evidence of PW1, PW2 and PW3 was neither challenged nor controverted during cross-examination. The law is trite that when evidence given by one party is not contradicted or controverted by the other party who has the opportunity to do so and such evidence is not inherently incredible and does not offend any rational conclusion or state of physical things, the Court should accord credibility to such evidence. See Akiboye V. Adeko (2011)6 NWLR (Pt. 1244) Pg. 415 @ Pg. 441 paras C-E, Mainagge V. Gwamma (2004)14 NWLR (Pt. 893) 323, Omoregbe V. Lawani (1980) 3-4 SC 108, Okoebor V. Police Council (2003)12 NWLR (Pt. 834) 444, Asafa Foods Factory Ltd. V. Alraine Nig. Ltd. (2002) 12 NWLR (Pt. 781) 353. Per JAURO, JCA. read in context

C. LAND LAW

7. Document of Title – The factors the Court must consider in admitting document of title

The plaintiff/Respondent relied on document of title i.e. exhibit ‘A’ (being a photocopy of certificate of occupancy granted by the then Tangale/Waja Local Government Council, Gombe State) in proving her title to the land in dispute. It has been settled that the production and reliance on a document as an instrument of grant of title makes it imperative for the Court to inquire into some pertinent questions or factors viz:

a) Whether the document is genuine and valid.

b) Whether it has been duly executed, stamped and registered,

c) Whether the grantor had the authority and capacity to make the grant;

d) Whether, as a matter of fact, the granter had what he purported to grant; and

e) Whether it has the effect claimed by the holder of the document.

See Aremu V. Chukwu (2012) 3 NWLR (Pt. 1288) Pg. 587 @ Pg. 617 paras A-G, Akinduro V. Alaya (2007) 15 NWLR (pt. 1057) 312, Olujinle V. Adeagbo (1988)22 NWLR (Pt. 75) 238, Romaine V. Romaine (1992) 4 NWLR (Pt. 238) 650; Adeniran V. Alao (2001) 18 NWLR (Pt. 745) 361. Per JAURO, JCA. read in context

8. Proof of Title – Position of the law on proof of ownership of land by acts of long possession

The general position of the law on the act of ownership as a means of proving title to land is that by the operation of Section 146 of the Evidence Act, a person is presumed to be the owner of the land in his possession until the contrary is proved to rebut the presumption. The only way to rebut the presumption is by strict proof of the alleged traditional evidence relied upon by the Appellants. See Babatunde V. Akinbade (2006)6 NWLR (Pt. 975)44, Udeze V. Chidebe (1990)1 NWLR (Pt. 125) 141, Olokunlade V. Samuel (Supra) @ Pg. 320 paras D-F. Per JAURO, JCA. read in context

9. Proof of Title – The methods of establishing ownership of land

In establishing ownership of the land in dispute, the Respondent can prove same through any of the following ways, viz:
a) By credible evidence of traditional history;

b) By duly authenticated documents of title;

c) By acts of ownership so numerous and positive enough to warrant the interference that the party is the true owner of the land;

d) By acts of long possession and enjoyment of the land;

e) By proof of possession of adjacent or connected land in such circumstances rendering it probable that the owner thereof would be the owner of the land in dispute. See Idundun V. Okumagba (1976) 9-10 SC. 227, Adebo V. Omisola (2005)2 NWLR (Pt. 909) 149; Adewuyi V. Odukwe (2005)14 NWLR (Pt. 945) 473; Mbani V. Bosi (2006)11 NWLR (Pt. 991) 400.

It is settled that the party claiming title to land need not to plead and prove all the five ways, proving one of any of the five ways is enough to be entitled to a declaration of title. See Okunlade V. Samuel (2011)17 NWLR (Pt. 1276) Pg. 290 @ Pg. 311-312 paras G-C. Per JAURO, JCA. read in context

10. Proof of Title – The principle that a claimant must succeed on the strength of his own case

The Plaintiff’s/Respondent’s claim in the instant case is for declaration of title over the land in dispute. The law is settled that the onus of proof in a suit for declaration of title to land lies on the plaintiff, and he must succeed on the strength of his case and not on the weakness of the defendant’s case. See Rabiu V. Adebajo (2012)15 NWLR (Pt. 1322) Pg. 125 at 147 para G, Egonu V. Egonu (1978)11-12 SC. 111. The Respondent as plaintiff can succeed if she establishes her title by credible and compelling evidence. See Rabiu V. Adebajo (Supra). Per JAURO, JCA. read in context

11. Traditional History – The principle that a plaintiff must be linked to the traditional history he relies on

It is trite law that when, as in this case, a plaintiff/counter-claimant’s case depends on traditional history, it is of utmost importance that the traditional evidence adduced must not only make a consistent case, but also that it affirmatively links that plaintiff with the traditional history he relies on. See Madubuonwu & Ors. V Nnalue (Supra) @ P. 449.

12. Traditional History- What a claimant who relies on traditional evidence must prove

For counter-claimant/Appellants therefore to succeed while relying on the traditional evidence must plead and prove the following:
a. Who founded the land,

b. In what manner the land was founded and;

c. Names and particulars of successive owners through whom they claims.

See Nruamah V. Ebuzoeme (2006)9 NWLR (Pt. 985) 217; Akinloye V. Eyiyola (1968) NWLR 92; mogaji v. cadbury (nig) ltd. (1985)2 NWLR (Pt. 7) 393, Lawal V. Olufowobi (1996)10 NWLR (Pt. 477) 177. In the case of Madubuonwu & Ors. V. Nnalue (1992)8 NWLR (Pt. 260) 440 @ 449 the Court held that:

“In the ordinary way a plaintiff who relied on traditional history in proof of a claim for declaration of title must lead evidence to show the root of his title. This includes how his ancestors had come to own the land in the first place and how the land has descended over the years in the claimants family until it got to the claimant.” Per JAURO, JCA. read in context

D. LIMITATION LAW
13. Limitation Period – What the court must consider in determining whether an action is statute barred

In the instant case, the defendants/Appellants argued that the plaintiff’s action was statute barred being that it was instituted outside the statutory period allowed by Gombe State Limitation Law. By the provision of Section 4 of the Bauchi State Limitation Edict, 1989 which is applicable to Gombe State.

“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to same persons through which he claims, to that person.”

Generally, the period of Limitation in respect of any case runs from the date the cause of action accrued, or from the moment the cause of action arose. To determine the date when cause of action arose, the Court has to look at the writ of summons, the averment in the statement of claim, in order to find out when the wrong which gave the plaintiff right to the cause of action arose. In other words, in determining whether a suit is statute barred or not, the Court is expected to examine the writ of summons and the statement of claim vis a vis the date of filing the suit. It is from the precise date upon which the cause of action arose, that time will begin to run. See Muomah V. Spring Bank Plc (Supra), Amodu V. Ajiboye (2000)14 NWLR (Pt. 686)15.


LEAD JUDGMENT DELIVERED BY JAURO, JCA


This appeal emanated from the decision of the High Court of Justice, Gombe State in Suit No. GM/46/2006 presided over by Hon. Justice J.A. Awak delivered on the 15th May, 2017.

Before the lower Court, the Appellants were the defendants, while the Respondent was the plaintiff. By her statement of claim, the plaintiff/Respondent claimed to have been allocated the land in dispute, by the Tangale/Waja Local Government Council in March, 1974. She averred that in 1974 without any justification the second defendant trespassed into her land and started erecting structures therein consequent upon which the plaintiff reported the matter to the Local Government Authority, and the second Respondent was ordered to vacate the premises. The plaintiff averred that in 1998 the 2nd defendant went on rampage again and started building on the land in dispute, through the instrumentality of the first defendant. Plaintiff contended that she reported the defendants to both Billiri Local Government and the Police.

It was after the defendants were head bent in completing the building and the authorities failed to take any serious steps to stop the defendants, the plaintiff filed this suit and claimed against the defendants jointly and severally for the following:

a) Declaration of title on the piece of land lying and situated at Billiri town of Gombe State, most particularly shown in the site plan of Certificate of Occupancy issued to plaintiff by Tangale/Waja Local Government Council.

b) The sum of N300,000.00 as general damages for acts of trespass on the plaintiff’s piece of land lying and situated at Billiri Local Government Area of Gombe State.

c) An order of perpetual injunction restraining the defendants his (sic) agents, servants, privies or cohorts from further committing act of trespass on the plaintiff’s piece of land.

d) The cost of this action.

See page 50 of the record of appeal.

In their joint statement of defence, the defendants denied the plaintiff’s claims and pleaded that the land in dispute belongs to their father who died in 1972. They pleaded that their late father Mallam Danjuma was the first person to clear the land in dispute as a virgin forest, and cultivated the land and thereafter built structures on it for his inhabitance together with his family. They averred that their late father had undisturbed and exclusive possession of the land long before the creation of both Tangale/Waja Local Government Council, as well as Gombe State. They pleaded further that on the death of their father in 1972, the land became the property of the defendants by inheritance. The defendants therefore counter-claimed jointly and severally as follows:

“a) A declaration of title on the piece of land lying and situated at Billiri Gombe State, and presently bounded by the road leading from Gombe to Yola, the road leading to the Local Government Secretariat, the house of Rtd. Major Karau and the house of the plaintiff/defendant to the counter claim respectively.

b) A declaration that the entry upon this land by the defendant and her activities thereat constitute trespass.

c) Two Hundred Thousand Naira general damages for trespass.

d) Special damages of Seven Hundred Thousand Naira as cost of the items and building materials for the structure pulled down and materials carted away by the defendant.

e) An order of perpetual injunction restraining the defendant from interfering with the land, subject matter of inheritance by the counter claimants.

f) Cost of action.”

After issues have been joined by the parties before the trial Court, the matter proceeded to trial. In support of her case, the plaintiff (now Respondent) presented three witnesses and tendered in evidence fifteen (15) exhibits. The defendants (now Appellants) for their defence also led three (3) witnesses. At the close of the defendants’ case, parties filed and exchanged their respective final written addresses. On the 15th day of May, 2017, the learned trial judge delivered the judgment in the matter, wherein he entered judgment in favour of the plaintiff/Respondent as per her claims herein before stated. He also granted to the Respondent cost of the action assessed at N1500.00. On the other hand, the Appellants’ counter-claim was dismissed and the reliefs sought in paragraph 25(a) – (f) of the counter-claim were refused accordingly.

Aggrieved with the decision of the learned trial judge, the Appellants filed notice of appeal before the lower Court on 7th August, 2017 challenging the decision of the trial Court on seven grounds of appeal. The Appellants’ grounds of appeal and their particulars are contained in the record of appeal. The reliefs sought by the Appellants from this Court are as follows:

a) An order allowing the appeal and setting aside the judgment of the trial Court in suit No. GM/46/06

b) An order striking out the plaintiff’s claim for being statute barred.

c) An order dismissing the plaintiff’s claims and granting the counter claim.

From the seven grounds of appeal, learned counsel for the Appellants distilled four issues for determination to wit:

“a. Whether the plaintiff’s suit is not caught by the limitation laws of Gombe as to oust the jurisdiction of the Court? (Ground 6)

b. Whether the plaintiff’s root of title admitted and marked as exhibit ‘A’ being a photocopy of a public document is admissible in evidence? (Ground 4)

c. Whether on the strength of the evidence adduced, the plaintiff proved title to the land by any other means aside exhibit ‘A’? (Ground 1 and 2)

d. Whether the dismissal of the defendants’ claim and the granting of the plaintiff’s claim were justified? (Ground 5 and 7).”

The learned counsel for the Respondent, on his part formulated two issues for determination as follows:

“i. Whether from the claim of the plaintiff it will be right to say that the present action is statute barred as to oust the Court of the requisite jurisdiction to entertain same (Ground 6)

ii. Whether exhibit ‘A’ was rightly admitted in evidence by the lower Court (Ground 4)

In addition to the two issues formulated by the Respondent, her learned counsel also adopted issues 3 and 4 of the Appellants’ issues for determination. It is crystal clear that all the issues adopted by the Respondent are the same with the issues distilled by the Appellants. The appeal will thus be determined on the Appellants issues 1, 2 and 3, as issue 4 is a replica of issue 3.

Hence it will be a needless academic exercise to consider issue 4, as the disposal of issue 3 will adequately take care of 4.

Before a consideration of the issues it is noteworthy to state that in the course of writing the judgment, parties were invited for a further address on the following two issues, namely:

(i) Status of exhibit A and its admissibility

(ii) Whether statute of Limitation can be raised without pleading same.

On the first date fixed for address, the Respondent was not represented and the counsel that appeared for the Appellants was not fully prepared. The address was adjourned from 5th June, 2018 to 22nd June, 2018. The Respondent was still not represented hence the Appellants counsel was allowed to address the Court. The learned counsel confirmed that exhibit ‘A’ is a photocopy of a Local Government Certificate of Occupancy and is not certified, hence inadmissible. It was submitted that statute of Limitation is a jurisdictional issue and can be raised any time even without pleading same. In support, reference was made to the following cases: Oni V. Cadbury Nigeria Plc. (2016)9 NWLR (Pt. 1516)80 at 106, Adegbite V. Amosu (2016)15 NWLR (Pt.1536) 405 at 433, A.G. Kwara State V. Adeyemo (2017)1 NWLR (Pt. 1546) 210 at 244. Hence everything will be considered in the judgment, under the relevant issue.

ISSUE ONE

Whether the plaintiff’s suit is not caught by the limitation laws of Gombe as to oust the jurisdiction of the Court? (Ground 6)

In arguing this issue, learned counsel for the Appellants submitted that the plaintiff’s case was filed outside the statutory period, and therefore robbed the trial Court the requisite jurisdiction to entertain it. He submits that from the plaintiff’s pleadings in paragraph 5 on page 48 of the record of appeal, the cause of action arose in 1974 when the 2nd defendant trespassed into the land and started erecting structures on it. It was submitted that the action having been commenced in 2006 a period of 32 years after the 2nd defendant laid claim to the land and commenced erecting a structures on it, is outside the statutory period and the trial Court was wrong to have held otherwise.

Learned counsel submitted that the issue of limitation is not limited to the statement of claim alone. It can equally be raised at the stage where evidence is taken. He relied on the case of Eresia Eke V. Orikoha (2010)8 NWLR (Pt. 1197) Pg. 421. He contends that in such case, the Court has a duty to look at both the claim and the evidence on the record in determining when the cause of action accrued. He contended that from the totality of the evidence of the plaintiff particularly on pages 140-141 of the record of appeal, the 2nd defendant entered the land in dispute in 1974 and erected a small building there and never left the land until the plaintiff obtained the first judgment, behind the back of the defendant which was eventually set aside. He argued that there is not a shred of evidence outside the ipse dixit of the plaintiff in support of the claim that the local government authority and the police stopped the 2nd defendant’s construction on the land. He submits that the trial Court was in error when it held that the 2nd defendant left the land after the incursion of 1974 and returning again in 1998. He stated that this claim is unproved and contrary to the admission of the plaintiff.

It was the submission of the learned counsel that there cannot be concurrent possession by two adverse parties. He referred to the case of Ehwrudje V. Warri (2016)10 NWLR (Pt. 1520) Pg. 337 at 356, that where as in this case actual possession was in the 2nd defendant whether de jure or de facto, the possession claimed by the plaintiff is excluded. The possession by one will automatically exclude the other. He submits that from totality of the evidence in the record indicates that the 2nd defendant built on the land since 1974 and continued to exercise ownership over it to the knowledge of the plaintiff, who took no legal action until 2006 well outside the limitation period. He further urged the Court to hold that the case of Elabanjo V. Dawodu (2006)15 NWLR (Pt. 1002) Pg. 76 is applicable to the present case. He urged the Court to resolve this issue in favour of the defendants and strike out the plaintiff’s suit for being incompetent which incompetence robbed the trial Court of jurisdiction.

In his response, learned counsel for the Respondent submitted that the plaintiff’s action that was filed in 2006 is competent and not caught up by the provisions of Section 4 of the Limitation Law of Gombe State. He submitted that from paragraphs 6 and 7 and the evidence of PW1, PW2 and PW3, the Appellants did in fact stopped the act of trespass in 1974 and vacated the land in question. He submitted further that the Appellant went on rampage again in 1998 and started building on the land in question which act gave rise to a fresh cause of action necessitating the filing of this action. He stated that the finding by the lower Court to the effect that the Appellants left the land after the incursion of 1974, but only went on rampage again and started building on the land in 1998 is clearly supported by evidence and not perverse.

It was further the submission of the learned counsel that it is not in dispute that the land trespassed into by the Appellants, is part of the land allocated to the Respondent in 1974 as evidenced by exhibit ‘A’. He contends that the Appellants admitted the above facts in paragraph 15 of their joint statement of defence and the evidence of DW3. He argued that the present cause of action arose in 1998 and not 1974. He urged the Court to so hold and to accordingly affirm the findings of the lower Court on the competence of the suit.

A cause of action means the fact or facts which gives or give a person a right to judicial redress or relief against another. It is the factual situation which gives a person the right to judicial relief. A cause of action arises when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. A cause of action would arise when the factual situation set out by the plaintiff which, if substantiated, would entitle him to a remedy against the defendant. See Muomah V. Spring Bank Plc (2009)3 NWLR (Pt. 680) Pg. 553 at Pg. 570 paras C-F, Omotayo V. N.R.C. (1992)7 NWLR (pt. 254) 471.

In the instant case, the defendants/Appellants argued that the plaintiffs action was statute barred being that it was instituted outside the statutory period allowed by Gombe State Limitation Law. By the provision of Section 4 of the Bauchi State Limitation Edict, 1989 which is applicable to Gombe State.

“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to same persons through which he claims, to that person.”

Generally, the period of Limitation in respect of any case runs from the date the cause of action accrued, or from the moment the cause of action arose. To determine the date when cause of action arose, the Court has to look at the writ of summons, the averment in the statement of claim, in order to find out when the wrong which gave the plaintiff right to the cause of action arose. In other words, in determining whether a suit is statute barred or not, the Court is expected to examine the writ of summons and the statement of claim vis a vis the date of filing the suit. It is from the precise date upon which the cause of action arose, that time will begin to run. See Muomah V. Spring Bank Plc (Supra), Amodu V. Ajiboye (2000)14 NWLR (Pt. 686)15. In instant case, as borne out of the plaintiff’s pleading that though the 2nd defendant trespassed into the plaintiff’s land in 1974 but the plaintiff reported the matter to the local Government authority and the 2nd defendant was warned and ordered to vacate the plaintiff’s land.

The instant suit as pleaded by the plaintiff was as a result of the 2nd defendant’s trespass in 1998 when he started building on the remaining plaintiff’s land, through the instrumentality of the 1st defendant. The facts pleaded by the plaintiff’s as to the accrual of the cause action in this suit was supported by the evidence PW1, PW2 and PW3. The law is settled that the factors relevant for limitation law to be operative are claims of events dependent upon the date the cause of action arises. The two necessary pre-requisites which must first exist and usher in cause of action are the existence of persons who can sue and be sued, as well as the requirement that all material facts needing proof must have happened. See Faroly Establishment V. N.N.P.C. (2011)5 NWLR (Pt. 1241) Pg. 457 at Pg. 479 paras E.F. In the instant case, the cause of action arose in 1998 when the 1st defendant through the 2nd defendant started building on the plaintiff’s land, by that time all the material facts needing proof had happened to maintain the action. From the face of plaintiff’s writ, the suit was filed 9th March, 2006.

Therefore from 1998 to 2006 is exactly eight (8) years. The learned trial judge, was right when he held the plaintiff’s action was not statute barred. The Appellants complaint under this issue is lacking in merit. Consequently, issue one is resolved against the Appellant, and in favour of the Respondent.

ISSUE TWO

Whether the plaintiff’s root of title admitted and marked as exhibit ‘A’ being a photocopy of a public document is admissible in evidence? (Ground 4)

In arguing this issue, learned counsel for the Appellants submitted that the learned trial judge, was wrong in admitting the Local Government certificate of ownership tendered by the plaintiff as exhibit ‘A’. He concedes that there was no objection to the admissibility of that document but notwithstanding, the document itself must be legally admissible before it can be admitted or acted upon. He contended that the finding of the trial judge on page 219 of the record of appeal on status of exhibit ‘A’ is wrong both in law and in facts. He submits that exhibit ‘A’ is not a photocopy of a certified true copy, but rather a photocopy of a certificate without more. He submits that there is no shred of evidence that it was ever certified as to make it a photocopy, of a certified true copy as the trial Court erroneously held.

Learned counsel submitted further that since the issue touches on the evaluation of documentary evidence, the trial Court cannot claim an exclusive privilege in that regard. He referred to the cases of George Abi V. CBN (2012) 3 NWLR (Pt . 1286) Pg . 1 at 27 and Onwuzuruike V. Edoziem (2016)6 NWLR (Pt. 108) Pg. 215 at 239 that where the trial Courts fails to examine and evaluate exhibits thoroughly, an appellate Court is entitled to do so and make findings thereon. He urged the Court to re-evaluate exhibit ‘A’ and hold that there is no evidence of certification on it. Learned counsel maintained that the fact that there is no objection to the admissibility of exhibit ‘A’, does not cure the evidential defect as parties cannot either by agreement or by mistake waive a mandatory provision of the law. Reliance was placed on the case of Uba V. Egwu (2016)12 NWLR (Pt. 1526) Pg. 346 at 353.

Learned counsel contended that the failure of the Appellants to oppose the admissibility of exhibit ‘A’ is inconsequential as it is statutorily required that in the absence of the original, only a certified true copy of a public document is admissible but not any other secondary evidence. He referred to Section 90(1) (c) of the Evidence Act and the cases of Minister For Lands, Western Nigeria V. Dr. Nnamdi Azikiwe (1969)1 ALL NRL Pg. 49, Abdullahi V. State (2016)10 NWLR (Pt. 1521) Pg. 475 at 498 and Onochie V. Odogwu (2006)6 NWLR (Pt. 975)Pg. 65 at 86 all to the effect that if a document is wrongly received in evidence before the trial Court, an appellate Court has the inherent jurisdiction to exclude it although counsel at the lower Court did not object to its going in. Learned counsel urged the Court to exclude exhibit ‘A’ from the record for being inadmissible in evidence and the wrongful admission of exhibit ‘A’ occasioned a miscarriage of justice in that without it the plaintiff’s root of title cannot stand. He referred to the case of Stodie Ventures V. Alamieyeseigha (2016)4 NWLR (Pt.1502) Pg. 271 at 288.

In response to the above arguments, learned counsel for the Respondent submitted that the Appellants only raised the question of the admissibility exhibit ‘A’ in their final address on two grounds. First, that exhibit ‘A’ is not admissible for being a photocopy and secondly that it is not authentic on the ground that it was not signed by the proper person as provided under the Land Use Act. Learned counsel submitted that exhibit ‘A’ being a photocopy of a certified true copy is admissible in evidence. He submits that the trial judge was right when he held severally that a photocopy of a certified true copy of a public document requires no further certification. Reliance was placed on the case of IMB (Nig) Ltd. V. Dabiri (1998) NWLR (Pt. 563). He argued that the Court is at liberty to look at the document and evaluate same. He referred to the case of Onwuzuruike V. Edoziem (2016)6 NWLR (Pt. 108) PG. 215 at 239. He submits further that oral evidence of the Respondent or argument of counsel cannot change the status of exhibit ‘A’.

The plaintiff/Respondent relied on document of title i.e. exhibit ‘A’ (being a photocopy of certificate of occupancy granted by the then Tangale/Waja Local Government Council, Gombe State) in proving her title to the land in dispute. It has been settled that the production and reliance on a document as an instrument of grant of title makes it imperative for the Court to inquire into some pertinent questions or factors viz:

a) Whether the document is genuine and valid.

b) Whether it has been duly executed, stamped and registered,

c) Whether the grantor had the authority and capacity to make the grant;

d) Whether, as a matter of fact, the granter had what he purported to grant; and

e) Whether it has the effect claimed by the holder of the document.

See Aremu V. Chukwu (2012) 3 NWLR (Pt. 1288) Pg. 587 @ Pg. 617 paras A-G, Akinduro V. Alaya (2007) 15 NWLR (pt. 1057) 312, Olujinle V. Adeagbo (1988)22 NWLR (Pt. 75) 238, Romaine V. Romaine (1992) 4 NWLR (Pt. 238) 650; Adeniran V. Alao (2001) 18 NWLR (Pt. 745) 361.

In the instant case exhibit ‘A’ that was tendered through the Respondent before the trial Court was an uncertified photocopy of the original, though the document is a public document.

The law is trite that before a photocopy of a public document can be tendered and admitted by the Court, it must be certified. A public document is deemed certified if the following have been observed.

a. Payment for the certification

b. There is an endorsement or certificate that it is a true copy of the document in question;

c. The endorsement or certificate is dated and signed by the officer responsible for certification with his name and official title.

See Tabik Invest. Ltd. V. G.T.B. Plc. (2011)17 NWLR (Pt. 1276) Pg. 262 paras A-B. In the instant case, exhibit ‘A’ is a photocopy of a public document and was not certified. The document being a photocopy and not certified is inadmissible in law.

Where it is established as in the instant case that a trial Court wrongly admitted a piece of evidence, an appellate Court has the competence and duty to expunge, disregard or exclude the evidence. See Ayanwale V. Atanda (1988)1 NWLR (Pt. 68) 22, Eghobamien V. F.M.B.N (2002)17 NWLR (Pt. 797) 488 Alh. Sab’riyyu Shittu V. Otunba Oyewole Fashawe (2005)14 NWLR (Pt. 946) 617, Onochie V. Odogwu (2006)6 NWLR (Pt. 975) 65, Dagaci Of Dere & Ors. V. Dagaci Of Ebwa & Ors. (2006)7 NWLR (Pt. 979) 382. Therefore exhibit ‘A’ being a photocopy of a public document admitted without certification was wrongly admitted by the trial Court. The document is hereby expunged from the record. This issue is resolved against the Respondent and in favour of the Appellants.

ISSUE THREE

Whether on the strength of the evidence adduced, the plaintiff proved title to the land by any other means aside exhibit ‘A’? (Ground 1 and 2)

In arguing this issue learned counsel for the Appellants submitted that there was no evidence before the lower Court to support the ascription of possession to the plaintiff. He argue that there was no basis for the lower Court holding that the plaintiff exercised acts of ownership, as well as possession of adjacent and connected land.

Learned counsel submitted that the only piece of land in dispute from the totality of the pleadings and the evidence is the small piece of land on which the 2nd defendant built two uncompleted rooms which is attached to her other completed shops, which structure the plaintiff pulled down after she obtained the first judgment over the land. He referred to paragraph 3(b) & (e) of the plaintiff’s reply to counter claim on pages 51-52 of the record of appeal and the plaintiff’s evidence on pages 140-142 of the record. He reiterated and submits that the land in dispute are the two shops occupied by A.A. Aliyu and Alhaji Sani Umaru and not the plaintiff‘s residential house or the four shops.

On the issue of possession, learned counsel submitted that even the plaintiff herself admitted that the defendants have a building attached to or neighboring the disputed land. He referred to paragraph 16 of the plaintiff’s statement on Oath on page 57 of the record and also on page 142. It was submitted that there is no better evidence than what a party admits. He relied on the case of Adusei V. Adebayo (2012)3 NWLR (Pt. 1288) Pg. 534 at 552.

He contended that the learned trial judge wrongly held, that the land in dispute was the entire land measuring 50 x 50 ft. which the plaintiff claimed to have been allocated to her contrary to what the parties agreed. He further submitted that the trial Court was wrong in assuming that the defendant never challenged the plaintiff on the land when the four shops and residential house were built on the land forty years ago. He opined that the defendant did not challenge the plaintiff’s house and four shops built more than forty years ago because they do not claim any of them. He referred to paragraph 13 of the 2nd defendant’s statement on oath on page 72 of the record of appeal.

It was also the submission of the learned counsel that the trial judge was wrong to hold, that the plaintiff has been in undisturbed possession of the land. The reason being that nowhere in the entire evidence and pleadings of the plaintiff did she or any of her other witnesses say the plaintiff ever did anything on the specific portion of land to indicate occupation or use and enjoyment prior to the earlier judgment of 2006.

Learned counsel submitted further that when the trial Court held the view on page 218 that the plaintiff was exercising possession on the disputed land by building a block of four shops and constructing shed where she was selling coca cola, there cannot be concurrent possession by two adverse claimants.

He referred Ehwrudje V. Warri (Supra). The Appellants argument on this point was for the fact that the plaintiff having admitted that the 2nd defendant structure was on the land from 1974 till after the judgment of 2006, she cannot turn round to claim to have also built a residential house, a block of four shops and constructed a temporary shed on the same piece of land.

Learned counsel submitted that the judgment that gave the plaintiff the authority to build that structure having been set aside, every right that she claims therefrom goes with it. Reliance was placed on the case of Ibrahim V. Ajonye (2012)3 NWLR (Pt. 1286) Pg. 108 at 129. He urged the Court to resolve this issue in favour of the Appellants/defendants and hold that the plaintiff did not establish any root of title, evidence of possession, use and enjoyment of possession of connected and adjacent land and that the trial Court was wrong in ascribing that status to him.

The Respondent’s counsel on his part, submitted that a plaintiff seeking declaration of title to land can prove same through any of the five recognized ways of establishing title to land. He argued that the plaintiff is not required to prove more than one of the recognized ways of proving title in order to succeed, as none of these five ways is superior to the other. He submits further that once a plaintiff established any of the 5 ways, the burden placed on him is discharge and will be entitled to the declaration sought. He referred to the case of Nruamah V. Ebuzoeme (2013) 13 NWLR (Pt. 1372) Pg. 474 at 478 R.1.

Learned counsel submitted that in the instant case the plaintiff/Respondent in prove of her claim to the land in dispute, pleaded and relied on the three ways of establishing title to wit: document of title, acts of ownership extending over sufficient length of time numerous and positive enough as to warrant the inference of true ownership and act of possession and enjoyment over the land. He referred to paragraph 4 and 15 (c) and (d) of the statement of claim and paragraphs 3(b) (d) and (g) of the reply/defence to counter claim.

It was the submission of the learned counsel that from the totality of the evidence of PW1, PW2 and PW3 and the combined effect of exhibit A, B, C, D, E, F, G, H, I, J, K, L, M, N and O the Respondent as plaintiff at the trial Court, had successfully established her title to land through the ways of proving title she pleaded. He submits that on the production of title document, the Respondent pleaded exhibit ‘A’ that the land was allocated to her by the then Tangale Waja Local Government Area and led evidence to that effect through PW2 and PW3. He further contended that the Appellants admitted in paragraph 15 of their joint statement of defence the above fact. He submits that fact admitted need no further proof. He relied on the case of Adusei V. Adebayo (2012)3 NWLR (Pt. 1288) Pg. 534 at 552.

On the above submission, learned counsel contended that the Respondent also adduced sufficient evidence of positive acts of ownership and long possession and enjoyment of the land as to warrant the inference of ownership. He referred to the evidence of PW1 as contained in paragraphs 3-9 of his witness statement on Oath. He also relied on the evidence of DW1, DW2 and DW3 to the effect that the Appellants admitted the existence of 4 shops and the residential house belonging to the plaintiff.

It was the contention of the learned counsel that the land in respect of which the Respondent seeks declaration of title is not just the portion housing the two shops occupied by A.A. Aliyu and Alh. Sani Umaru but the entire land allocated to the Respondent as evidence in exhibit ‘A’. He maintained that the subject of the Appellants’ counter claimants as described in paragraph (a) of the counter claim on page 40 of the record of appeal is not in respect of the two shops only, but included not only the block of four shops and the residential house of the Respondent and the house of one Nehmolma. He referred to the evidence of DW3 on page 164 lines 11-21 of the record.

Learned counsel submits that from the state of pleadings and the totality of the evidence adduced it is untenable to argue, that the land in dispute relates only to the small portion where the two shops stands. He urged the Court to hold that the Respondent had discharged the burden of proof placed on her by law and that the lower Court was right to have entered judgment in favour of the Respondent.

The Plaintiff’s/Respondent’s claim in the instant case is for declaration of title over the land in dispute. The law is settled that the onus of proof in a suit for declaration of title to land lies on the plaintiff, and he must succeed on the strength of his case and not on the weakness of the defendant’s case. See Rabiu V. Adebajo (2012)15 NWLR (Pt. 1322) Pg. 125 at 147 para G, Egonu V. Egonu (1978)11-12 SC. 111. The Respondent as plaintiff can succeed if she establishes her title by credible and compelling evidence. See Rabiu V. Adebajo (Supra).

In establishing ownership of the land in dispute, the Respondent can prove same through any of the following ways, viz:

a) By credible evidence of traditional history;

b) By duly authenticated documents of title;

c) By acts of ownership so numerous and positive enough to warrant the interference that the party is the true owner of the land;

d) By acts of long possession and enjoyment of the land;

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

See Idundun V. Okumagba (1976) 9-10 SC. 227, Adebo V. Omisola (2005)2 NWLR (Pt. 909) 149; Adewuyi V. Odukwe (2005)14 NWLR (Pt. 945) 473; Mbani V. Bosi (2006)11 NWLR (Pt. 991) 400. It is settled that the party claiming title to land need not to plead and prove all the five ways, proving one of any of the five ways is enough to be entitled to a declaration of title. See Olokunlade V. Samuel (2011)17 NWLR (Pt. 1276) Pg. 290 @ Pg. 311-312 paras G-C.

In the instant case, though exhibit A was rendered inadmissible document in this judgment, the plaintiff/Respondent can still succeed in proving other means of proving title to land as pleaded in her statement of claim subject to the discharge of burden which was on the plaintiff to prove her case with sufficient evidence. In proving her case, the plaintiff/Respondent pleaded acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner and acts of long possession and enjoyment of the land.

The general position of the law on the act of ownership as a means of proving title to land is that by the operation of Section 146 of the Evidence Act, a person is presumed to be the owner of the land in his possession until the contrary is proved to rebut the presumption. The only way to rebut the presumption is by strict proof of the alleged traditional evidence relied upon by the Appellants. See Babatunde V. Akinbade (2006)6 NWLR (Pt. 975)44, Udeze V. Chidebe (1990) 1 NWLR (Pt. 125) 141, Olokunlade V. Samuel (Supra) @ Pg. 320 paras D-F. In support of her pleading on the act of ownership, plaintiff testified as PW2 and in her evidence in chief that:

“Before the defendants’ interference with my peaceful possession culminating into this suit, I have been in long possession of the land exercising acts of ownership which includes the construction of a block of 4 shops and residential house behind the shops on the other portion of the land about forty 40 years ago, immediately after same was granted to me in 1974, by the then Tangale Waga Local Government Area which shops are still standing on the land till date and I have been renting out same to people to the full knowledge of the defendants and his (sic) relations all this long without any challenged from the defendants.”

See page 57 of the record.

The evidence of the plaintiff was supported by the evidence of PW1 when he testified that he came to know the land in dispute for about 40 years ago, when the plaintiff engaged his services to build for her one block consisting of 4 shops and a residential house. See page 61 of the record of appeal. PW3 in his evidence also testified that he knows the land belongs to the plaintiff so many years ago. He testified further that when they were doing commission work, the plaintiff then constructed a temporary shed and used it to sell coca-cola. See page 63 of the record of appeal.

The evidence of PW1, PW2 and PW3 was neither challenged nor controverted during cross-examination. The law is trite that when evidence given by one party is not contradicted or controverted by the other party who has the opportunity to do so and such evidence is not inherently incredible and does not offend any rational conclusion or state of physical things, the Court should accord credibility to such evidence. See Akiboye V. Adeko (2011)6 NWLR (Pt. 1244) Pg. 415 @ Pg. 441 paras C-E, Mainagge V. Gwamma (2004)14 NWLR (Pt. 893) 323, Omoregbe V. Lawani (1980) 3-4 SC 108, Okoebor V. Police Council (2003)12 NWLR (Pt. 834) 444, Asafa Foods Factory Ltd. V. Alraine Nig. Ltd. (2002) 12 NWLR (Pt. 781) 353. In the instant case, the trial Court was right in accoding credibility to the Respondent’s evidence. On this note, plaintiff/Respondent had established her ownership to the land in dispute through the acts of ownership and long possession. The Respondent is presumed to be the owner of the land in dispute until the contrary is proved. See Babatunde V. Akinbade (Supra).

In rebutting the Respondent’s ownership to the land in dispute, the Appellants pleaded traditional evidence as the basis, of their claim to the land in dispute. The law is that where a plaintiff and in the instant case counter-claimant relies on traditional evidence and it is found to be cogent, it will be sufficient to sustain his claim. The onus is on them (Appellants) to prove their title upon a preponderance of evidence or on the balance of probabilities. They must succeed on the strength of their own case and not on the weakness of the defence (plaintiff), except where the defendant’s case support their case. See Onwugbufor V. Okoye (1996)1 NWLR (Pt. 424) 252, Shittu V. Fashawe (2005)14 NWLR (Pt. 946)671, Eze V. Atasie (2000)10 NWLR (Pt. 676) 470, Adesanya V. Aderonmu (2000)9 NWLR (Pt. 672)370.

For counter-claimant/Appellants therefore to succeed while relying on the traditional evidence must plead and prove the following:

a. Who founded the land,

b. In what manner the land was founded and;

c. Names and particulars of successive owners through whom they claims.

See Nruama V. Ebuzoeme (2006)9 NWLR (Pt. 985) 217; Akinloye V. Eyiyola (1968) NWLR 92; Mogaji V. Cadbury (Nig) Ltd. (1985)2 NWLR (Pt. 7) 393, Lawal V. Olufowobi (1996)10 NWLR (Pt. 477) 177. In the case of Madubuonwu & Ors. V. Nnalue (1992)8 NWLR (Pt. 260) 440 @ 449 the Court held that:

“In the ordinary way a plaintiff who relied on traditional history in proof of a claim for declaration of title must lead evidence to show the root of his title. This includes how his ancestors had come to own the land in the first place and how the land has descended over the years in the claimants family until it got to the claimant.”

In the instant case, the counter claimant/Appellants pleaded that the land in dispute was founded by their father being the 1st person to clear the land in dispute as a virgin forest. It is trite law that when, as in this case, a plaintiff/counter-claimant’s case depends on traditional history, it is of utmost importance that the traditional evidence adduced must not only make a consistent case, but also that it affirmatively links that plaintiff with the traditional history he relies on. See Madubuonwu & Ors. V Nnalue (Supra) @ P. 449. The three witnesses called by the Appellants, DW1 and DW3 gave evidence as to the root of title while DW2 testified that they sought the consent of the 1st defendant to be praying on the land. However none of the witnesses testified as to how the land came into possession of the Respondent. DW1 under cross-examination admitted that the shops which he doesn’t know how long they have been on the land belong to the Respondent, and which she has been renting out to various tenants. In a sudden twist and at variance with their joint statement of defence the witness stated that the land upon which the 4 shops and residential house behind it were built is not part of the land cleared by their late father.

See page 149 of the record. DW3, in a sharp contrast, with the evidence of DW1, testified that the four shops and residential house built behind them were built on the land cleared by their late father and though the shops and residential house belongs to the plaintiff, the land does not. See page 164 of the record.

The Appellants adduced conflicting evidence as to their root of title, in respect of the land in dispute. The contradiction in the evidence is material, as it goes to the root of the defendant’s case. The law is trite that a party who gave a conflicting evidence to establish a root of title, cannot have a pronouncement as to title in his favour. See Section 90 (1)(c) of the Evidence Act and the following cases: IMB (Nig) Ltd. V. Dabiri (1998) NWLR (Pt. 563), Onwuzuruike V. Edoziem (2016)6 NWLR (Pt. 108) 215 at 239, Nruamah V. Ebuzoeme (2013) 13 NWLR (Pt.1372) 474 at 478, Adewuyi V. Odukwe (2005)131 LRCN 2510, Adusei V. Adebayo (2012)3 NWLR (Pt. 1288) 534 at 552, Eyo V. Onuoha (2011) 195 LRCN 38 at 84. It has been settled that where the traditional history put forward by a plaintiff and in the instant case, counter-claimant is not reliable, the claimant is said to have failed to prove title based on it and the claim ought to be dismissed. See Fasoro V. Beyioku (1988)2 NWLR (Pt. 76) 263; Adebayo V. Ighodalo (1996)5 NWLR (Pt. 450) 507 and Balogun V. Akanji (1988)1 NWLR (Pt. 70) 301 at 322. Consequent upon the foregoing, this issue is hereby resolved in favour of the Respondent and against the Appellants. As earlier stated in this judgment issue 4 is a replica of issue 3, hence the resolution of issue 3 takes care of issue 4.

Consequent upon the foregoing, the appeal succeeds in part to the extent that exhibit ‘A’ is inadmissible. However the judgment of Gombe State High Court in Suit GM/46/2006 delivered by Hon. Justice J.A. Awak on 15th May, 2017 wherein the plaintiff’s/Respondent’s claim was allowed and defendants/Appellants counter claim was dismissed is hereby affirmed.

There will be no order as to costs.

MSHELIA, JCA

I had the advantage of reading in draft the Judgment of my learned brother Jauro, JCA just delivered. I agree with the reasoning and conclusion arrived thereat, that the appeal succeeds in part to the extent that Exhibit ‘A’ is inadmissible. I endorse the consequential orders contained in the lead Judgment inclusive of costs.

WILLIAMS-DAWODU, JCA

I had the privilege and opportunity to read in draft the lead Judgment delivered by my learned brother, ADAMU JAURO, JCA. I agree entirely with the reasoning and conclusion reached therein. In consequence, I also find the appeal unmeritorious save for Exhibit A which was inadmissible. I abide by the orders made therein. I make no order as to costs.

Appearances:

PATRICK OWOICHO, ESQ. For Appellant(s)

A.Y. GALADIMA, ESQ. For Respondent(s)