LIMAN & ANOR v. MELEH
CITATION: (2018) LPELR-46397(CA)
In the Court of Appeal In the Jos Judicial Division Holden at Jos
ON THURSDAY, 20TH DECEMBER, 2018 Suit No: CA/J/406/2017
Before Their Lordships:
UCHECHUKWU ONYEMENAM Justice, Court of Appeal TANI YUSUF HASSAN Justice, Court of Appeal MUDASHIRU NASIRU ONIYANGI Justice, Court of Appeal
Between
1. HON. BABA KAUMI LIMAN - Appellant(s) 2. ARCH. MOHAMMED U. AJID And DR. SULEIMAN(2018) MELEH LPELR-46397(CA)- Respondent(s)
RATIO DECIDENDI
1. COURT - RAISING ISSUE(S) SUO MOTU: Whether a Court can raise an issue suo motu and determine it without hearing parties; exceptions thereto "I agree with the learned counsel for the Appellants' submission that a Court of law has no power to raise an issue suo motu and go ahead to resolve it without inviting the parties to address it on the so raised issue. This however is the general rule which has 3 exceptions as were rightly listed by the learned counsel for the Respondent as enumerated by the Supreme Court in the case of OMOKUWAJO V. F.R.N (2003) 9 NWLR (PT. 1359) 300 AT 332 PARAS. B-F. A trial Court has the powers to raise an issue suo motu, and proceed to determine the same without inviting the parties to address it, if: (a) The issue relates to the Courts own jurisdiction; (b) If both parties are or were not aware or ignored a statute which may have bearing on the case. This is to say where, by virtue of statutory provision, the Court is expected to take judicial notice under Section 73 of the Evidence Act. (c) On the face of the record, serious questions of the fairness of the proceedings is evident. In the instant case, the learned trial Judge had in the process of evaluating and assessing Exhibit DW2B which is the Certificate of Occupancy relied upon by the Appellants as their root of title and Exhibit PW4B which is the file containing the Appellants' application for the grant of the said house in dispute, the Governor's approval etc., discovered material contradictions in the dates which necessitated the trial Court to take refuge in Section 122 (1) (d) of the Evidence Act, 2011 (as amended) by taking judicial notice of the assumption of office of the President, and a state Governor. Consequently, it drew inference that the then Executive Governor (Late) Mala Kachallah whose supposed signature appeared on the exhibits would not have signed the supposed approval letter on 26th June, 2003, by which time, he was no longer the Governor of Borno State, but Gov. Modu Sheriff who was sworn in on 29th May, 2003. For that he held that the Appellants' title is invalid, null and void. The law is settled that a judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inferences, the judge can arrive at conclusions. It will be wrong to say that inference legitimately drawn from facts and documentary evidence in a case amount to raising an issue suo motu. Equally, where a Judge refers to a piece of legislation or rule of Court which assists him to arrive at a decision one way or the other, he cannot be queried for introducing the rule of Court or statute suo motu. OLORUN KUNLE V. ADIGUN (2012) 6 NWLR (PT. 1297) 407; IKENTA BEST (NIG.) LTD V. A.G.RIVERS STATE (2008) 6 NWLR (PT. 1084) 612. The learned counsel for the Appellants was wrong in his submissions on the trial Court's taking judicial notice of the assumption of office of a Governor of a State envisaged under Section 122 (1) (d) of the Evidence Act, 2011 (as amended); when he equated the same as raising an issue suo motu. The learned trial Judge took judicial notice by virtue of Section 122 (1) (d) that assisted him in drawing inferences from stated facts to arrive at his decision that Governor Mala Kachallah could not have signed Exhibit PW4B, that gave rise to Exhibit DW2B. Consequently, he held that the title of the 1st Appellant in Exhibit DW2B is invalid making the purported transfer of same to the 2nd Appellant null and void, as the 1st Appellant had no title to assign to the 2nd Appellant."Per ONYEMENAM, J.C.A. (Pp. 47-50, Paras. B-A) - read in context 2. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in land matters "On this issue, the learned counsel on both sides are in consensus on the general principle of law that the burden of proof in a civil matter generally lies on the party who asserts the affirmative of a fact in issue to prove same to the satisfaction of the Court. They cited Sections 131-133 of the Evidence Act, 2011 and numerous judicial authorities in support. However, they differed on the position of the learned trial Judge that the Respondent as claimant has a better and valid title of the said property in dispute. On this, the Appellants complained that the trial Court shifted the burden of proof to him, referring to pages 175 lines 19-20 and 176 lines 18-20 of the records. While the Respondent argued that in a land matter where a person who is in possession alleges that he is the owner of the land in his possession, the burden of proving otherwise is on the person who affirms that the person in possession is not the owner relying on Section 143 of the Evidence Act, 2011. It is pertinent to re-iterate the position of the law as it is and has always been as envisaged by Sections 131-133 of the Evidence Act, 2011, that he who asserts the existence of certain facts must prove them and once this is done the burden shifts to the other party, because the burden is not static or permanent. It shifts between parties and rests on the party whom judgment would be given against if no more evidence is adduced. The standard of such proof is decided or determined on the preponderance of evidence and balance of probabilities. See: AGBAKOBA V. INEC (2008) 18 NWLR (PT. 1119) 489; U.T.C. (NIG.) LTD V. PHILIPS (2012) 6 NWLR (PT. 1295) 136; WOLUCHEM V. GUDI (1981) 5 SC 291; OGOCHUKWU V. A.G. RIVERS STATE (2012) 6 NWLR (PT. 1295) 53; DAODU V. NNPC (1998) 2 NWLR (PT. 538) 355. In the instant case the Appellants' complaint is that the trial Court shifted the burden of proof to the Appellants while it was for the Respondent to discharge the said burden. He contended that the burden still rested squarely on the Respondent even if the Appellants failed to adduce any evidence on their side. He relied on: GUNDIRI VS NYAKO (supra). The law is trite that in an action for declaration of title, the claimant succeeds on the strength of his case and not on the weakness of the Defendant's case and the burden is on the claimant to satisfy the Court on the basis of the evidence he adduced that he is entitled to a declaration of title. His claim fails and his action dismissed once he is unable to discharge the said burden placed on him by the law. ABASI V. EKWEALOR (1993) 6 NWLR (Pt. 302) 643; UCHE V. EKE (1998) 1 NWLR (PT. 564) 24. I believe it will be necessary to reproduce the holding of the learned trial Judge at pages 175 and 176 of the records as it relates to the Appellants' complaint where the learned trial Judge stated thus: "It is also settled law that, Certificate of Occupancy founded on the fraudulent sale of property is not evidence of title, since fraud vitiates title..." and "Having found the Defendant's title invalid, null and void, I hereby declare that the claimant has a better and valid title of the said property, which is in line with the Borno State Government Policy of Owner-occupier basis." A careful examination of the trial Court's judgment reveals that the aforesaid excerpt was arrived at after a thorough evaluation of the evidence adduced by parties at the trial vis-a-vis the pleadings of the parties, particularly paragraphs 1, 4, 5 and 6 of the Respondent's Amended Statement of Claim at pages 10 and 11 of the records which were to the effect that the Respondent as claimant was claiming title by relying on acts of ownership and acts of long possession as well as offer for sale by the Borno State Government, while the Appellants relied on grant by way of document of title to the land (i.e. C of O) which is also one of the (5) ways of proving title to land. I do not agree with the submission of the learned counsel for the Appellants that the learned trial Judge shifted the burden of proof to the Appellants, rather he only compared and preferred the evidence adduced by the Respondent over that of the Appellants on their claim of title. He observed that the parties traced their title from a common root which is the Borno State Government. The trial Court opined that the Appellants' account was full of irregularities. He found the same invalid, null and void. The law is settled that where parties in a land dispute trace their title to a common root, it is the party who establishes a better title to the said land that is entitled to succeed in such a claim for declaration of title. In the instant appeal, the parties having traced their title from the Borno State Government as the original grantor, the trial Court was right to have compared the title of both parties in the process of evaluating the evidence adduced by them with a view to finding out who amongst the parties established a better title. So doing in my view, does not amount to shifting the burden of proof to the Appellants as wrongly contended by the learned counsel for the Appellants. The law placed a duty on the trial Court to properly evaluate the evidence adduced by the parties at trial before reaching its decision on the matter and where the said matter is civil such as this, it is decided based on preponderance of evidence and balance of probabilities. The principle of the evaluation of evidence as enunciated by Fatayi Williams JSC (as he then was) in MOGAJI V. ODOFIN (1978) 4 SC 91 is as follows: "In short before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together side by side. He will then see which is heavier not by the number of the witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that civil case is decided on the balance of probabilities. AKINSANYA VS SOYEMI (1998) 8 NWLR (PT. 560) 49 AT 56." It is pertinent to state here that whether the trial Court was right that the Appellants' title is invalid, null and void is something else that I will yet decide, but he was certainly right in my opinion to have compared and weighed the evidence of the parties with a view to finding out who has a better title and that does not in any way amount to shifting the burden of proof to the Appellants, even though the law would in the circumstances of this case allow for the said shifting since the Respondent herein as claimant pleaded and relied on the act of possession as his root of title. By virtue of Section 147 of the Evidence Act, whenever the question of ownership of a thing is in issue, the person in possession is presumed to be the owner of such thing. The burden of proving that he is not the owner is on the person who affirms that he is not the owner. OKHUAROBO V. AIGBE (2002) 9 NWLR (PT. 771) 29; EBONG V. IKPE (2002) 17 NWLR (PT. 797) 504. In the instant appeal, the trial Court could have been right if it shifted the burden of proof to the Appellants, the Respondent having relied on act of possession, the presumption of which is that he is the owner of the house while the burden of proving otherwise would be on the Appellants who affirms that the Respondent is not the owner. On the Appellants' contention that: the Respondent admitted in his Amended Statement of Claim that the said house was sold to the Appellants in 2002, and as such judgment ought to be given in their favour as parties are bound by their pleadings; all the evidence adduced by the Respondent are at variance with his pleadings; the law is settled that facts admitted need no further proof; the Respondent as claimant could only succeed on the strength of his case and not on the weakness of the Appellants' case. It is correct as postulated by the learned counsel for the Appellants that parties and Courts are bound by the parties pleadings placed before the Court and that admitted facts need no further proof. ?From the standpoint of the fact that what is admitted need no further proof by evidence; I shall examine the pleadings of the Respondent who was the claimant to determine whether he had actually admitted that the house in dispute was sold to the Appellants. Worthy of consideration are paragraphs 4, 5, 6, 8, 9, 10, 11, 12, 13, 19, 20 and 25 of the Respondent's Amended Statement of Claim and paragraphs 3, 4, 5, 7, 8, 9, 10, 12, 13, 18, 19, 21, 23 and 24 of the Respondent's Amended Statement on Oath at pages 17 - 20 of the records. A careful examination of the referred paragraphs in my view clearly point to the fact that the Respondent had been in a lawful, peaceful and active possession of the said house since 1995, first as a tenant, not until 2003 when the 1st Appellant served him with notice to quit which necessitated his inquiries about the status of the house at the Ministry of Land. From the said ministry, he discovered that the house was erroneously sold to the 1st Appellant and that Deed of Assignment was executed to that effect whereupon, he wrote a letter of request for arbitration to the then executive Governor. The letter was considered and the 1st Appellants' grant was revoked and in its stead the said house was sold to the Respondent on the basis of owner-occupier policy of the Government at the time. This to me does not in any way mean that the Respondent admitted that the said house became the property of the Appellants in 2002, hence his refusal to vacate the premises at the expiration of the 7 days Notice to quit served on him by the Appellants and his subsequent action towards claiming the ownership of the house. This in my view does not amount to admission per se to entitle the Appellants to the judgment of the trial Court without the need for further proof. I hold that the trial Court was right for not finding for the Appellants based on their perceived admission by the Respondent in his pleadings. The provision of Section 20 of the Evidence Act, 2011 is therefore inapplicable in the circumstance of this case, there being no admission of any fact by the Respondent. For this, and coupled with the fact that the Respondent pleaded and relied on act of ownership and possession to which the Appellants did not specifically deny or debut in their pleadings, I hold that the fact that the Respondent was and had been in possession of the house in dispute is deemed admitted. The law is settled by virtue of Section 143 of the Evidence Act, 2011; (as amended), that in a land matter where the claimant pleads possession as his root of title and the Defendant either directly or indirectly admits possession then the onus shifts to the Defendant to prove that the claimant is not the owner of the property. See: EBONG V. IKPE (2002) 17 NWLR (PT. 797) 504. In the instant appeal, there is nowhere the Appellants denied categorically that the Respondent was not in possession of the house in dispute, rather they contended in their pleadings that the house was only used as transit house for medical Doctors by the Borno State Government, but no evidence was led on that assertion. A close look at the Appellants' joint Statement of Defence and their evidence under cross examination show that the Appellants admitted that the Respondent was in actual possession which admission in my view strengthened the case of the Respondent. The trial Court was entitled to use the admission and credit same in favour of the Respondent. AKINOLA V. OLUWO (1962) ALL NLR 224; ORO V. FALADE (1995) 5 NWLR (PT. 396) 385; EBE & ANOR V. NNAMANI (1997) 7 NWLR (PT. 513) 479. Notwithstanding the fact that the trial Court did not credit the aforesaid Appellants' admission to strengthen the Respondent's case, the trial Court was nevertheless right to have focused on finding out who amongst the parties established a better title, as both parties traced their title from common root. On the Appellants' contention that the Respondent never pleaded that the Appellants tampered with Exhibit PW4B, but only pleaded that in the course of writing a search report by the staff of the Ministry of Land it was discovered that the file's pages were tampered with as such he submitted that the findings of the trial Court that the 1st Appellant tampered with Exhibit PW4B is perverse considering that allegation of tampering with document is a fraud and criminal in nature which must be proved beyond reasonable doubt even in a civil matter such as the one at hand. I believe it will not be out of place to reproduce the holding of the trial Court, complained about by the Appellants' counsel. The trial Court at page 175 held thus: "This Court has taken judicial notice that on 26/6/03 Mala Kachallah was not the Governor of Borno State Government, but his Excellency Senator Ali Modu Sheriff. These (sic) pose a serious doubt of genuineness of Certificate of Occupancy No. BO/45418. Having said this, I spare no doubt that the title of the 1st Defendant has been tampered with and it ought to be revoked." In as much as I can agree with the Appellants' contention that the Respondent never pleaded anywhere in his pleadings that the Appellants tampered with Exhibit PW4B, but I disagree with his submission that the trial Court held that the 1st Appellant tampered with Exhibit PW4B. This is so, as there is nowhere in the above excerpt or anywhere in the judgment under review the trial Court made such pronouncement as wrongly contended by the learned Appellants' counsel. Now coming to the allegation of tampering with Exhibit PW4B as found by the trial Court, which the Appellants contended that it must be proved beyond reasonable doubt. To properly address this issue there is the need to understand the meaning of the term "Tamper" and to do that, recourse must be made to both English and Law Dictionaries for a clear definition. The GEDDES & GROSSET, English Dictionary New Edition, page 420. defines the word; thus: "Tamper means: To meddle (with); to interfere (with). Also GEDDES & GROSSET, New English Dictionary and thesaurus, New Edition, page 585 defines the word "tamper to mean: alter, conquer, dabble, damage, interfere, meddle; intrigue, seduce, suborn." While the Black's Law Dictionary 8th Edition defines the term Tamper to mean:- 1. "To meddle so as to (2018)alter (a thing); esp. to make changes that are illegal,LPELR-46397(CA) corrupting or perverting. 2. To interfere improperly; to meddle. It further defines this word tampering to mean: 1. The act of altering a thing especially the act of illegally altering a document or product, such as written evidence or a consumer good...." From the foregoing definitions, the word "tamper" could simply be defined as to meddle, to alter, to make changes or to illegally alter a document, such as written evidence. By the inclusion of the words "corrupting, perverting, and illegally" in the definition of the term, "tamper" falls within the purview of crime. I agree with the Appellants' submissions that allegation of crime even though in a civil matter such as this requires prove beyond reasonable doubt. See: Section 138 of Evidence Act, 2011 (as amended). Going by the Respondent's paragraphs 15, 16, 17, 22, 23 and 24 of his Amended Statement of Claim and paragraphs 15, 16, 17, 21, 22 and 23 of his Statement on Oath at pages 12, 13, 14 and 19-20 of the records respectively, the said allegation of criminal act is not directly in issue, and is not directed at any party in the matter or anyone at all as stated by the Appellants to require a proof beyond reasonable doubt as envisaged by Section 138 (1) (2). Considering the pleadings of the parties before the trial Court, particularly the referred paragraphs of the Respondent's pleadings which were neither denied, rebutted nor challenged by the Appellants due to their failure to file Amended Statement of Defence to address the said paragraphs, the facts in the paragraphs under consideration are deemed admitted. The law is trite that what is admitted need not be proved and where evidence is led by a party and there is no contrary evidence from the other party, the evidence is deemed to be as true and accepted. OKOEBOR V. POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444; AKINLAGUN V. OSHOBOJA (2006) 12 NWLR (PT. 993) 60; IBADAN L.G.P.C. LTD V. OKUNADE (2005) 3 NWLR (PT. 911) 45. In the instant case, the Appellants having admitted the issue of tampering with Exhibit PW4B coupled with the testimony of PW3, (a subpoenaed witness at page 23 of the records) which was not shaken under cross examination, one can safely conclude that the Respondent as Claimant had discharged the burden of proving beyond reasonable doubt that Exhibit PW4B was tampered with; and the burden of proving reasonable doubt shifted to the Appellants which they failed to do in line with the provision of Section 138 (3) of the Evidence Act, 2011 (as amended). Having said that, I hold the view that the trial Court was right in holding that Exhibit PW4B had been tampered with rendering the title of the Appellants invalid. I also hold that the trial Court discharged its primary duty of evaluating the evidence adduced before it vis-a-vis the pleadings of the parties before reaching its conclusion. MOGAJI V. ODOFIN (supra); AKINSANYA VS SOYEMI (supra). Furthermore, it is my view that the Appellants have not shown that the trial Court's findings based on the evidence before it are perverse or has occasioned a miscarriage of justice to warrant the interference of this Court. OKEKE V. EZIKE (1993) 4 NWLR (PT. 290) 751; LAWAL V. DAWODU (1972) 8 & 9 SC 83; FASHANU V. ADEKOYA (1974) 6 SC 83; ASARIYU V. THE STATE (1987) 4 NWLR (PT. 67) 709; AMUNEKE V. THE STATE (1992) 1 NWLR (PT. 217) 338. Having said this, issue No. 1 is therefore resolved in favour of the Respondent."Per ONYEMENAM, J.C.A. (Pp. 18-34, Paras. C-B) - read in context 3. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal "It is correct as submitted by the learned counsel for the Appellants that the evaluation and assessment of the evidence adduced by parties before a Court is the primary duty of the trial Court and that the Court and the parties are bound by the pleadings of the parties placed before the Court. BASHAYA V. STATE (1998) 5 NWLR (PT. 550) 351 SC; ELENDU V. EKWOABA (1998) 12 NWLR (PT. 578) 320. However, in the instant case, as I earlier stated somewhere in this judgment that the contention of the learned counsel for the Appellants that by paragraphs 9 and 10 of the Respondent's Amended Statement of Claim, he admitted that the house in dispute was sold to the 1st Appellant by the Borno State Government in 2002 does not amount to admission that the disputed house belongs to the 1st Appellant given the circumstances in which the said perceived admission was made. Accordingly, I will not revisit the said issue. Having said this, I hold the view that considering the entire pleadings of the Respondent, there was no admission against interest by the Respondent to warrant the trial Court giving judgment in favour of the Appellants. With regard to evaluation of evidence, I agree with the submission of the learned counsel for the Respondent that the trial Court is not duty bound to consider and evaluate all the documentary evidence adduced by the parties before it arrives at its decision, rather evaluation of relevant and material evidence before the Court and ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. This is particularly so, because the law is trite that admission of document in evidence in the course of trial is one thing, while the requirement of their consideration in the judgment depends entirely on their relevance to the issue before the Court. ABALOGU V. SHELL PET. DEV. (NIG) LTD (1999) 8 NWLR (PT. 613) 12; AGBI V OGBEH (2006) 11 NWLR (PT. 990) 65 SC; OJOKOLOBO V. ALAMU (1998) 9 NWLR (PT. 565) 226 SC, SHA V. KWAN (2000) 5 SC 178. In the instant case, the parties led evidence and tendered several documents which were admitted in evidence all of which formed part and parcel of the evidence placed before the Court for consideration. The trial Court, however, focused its attention on the evaluation of the relevant and material documents such as Exhibit PW2B and Exhibit PW4B and ascribed probative value to both oral and documentary evidence it considered relevant to the issue before it before arriving at its decision. Thus I cannot fault the trial Court for rightly discharging its primary function. The law is settled that once there is proper evaluation of evidence by a trial/lower Court, an appellate Court has no business interfering, unless the decision is perverse and has occasioned a miscarriage of justice. IHEANACHO V. EJIOGU (1995) 4 NWLR (PT. 389) 324 AT 339; NWACHUKWU V. NWOSU (1990) 7 NWLR (PT. 160) 72; BALOGUN V. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66. The trial Court having considered the relevant documents and material evidence that are in tune with the issues before it and ascribed probative values to the evidence, I hold the view it properly evaluated the evidence placed before it by the parties before arriving at its decision. Therefore, this Court has no business interfering with its findings the judgment having not been shown by the Appellants to have occasioned a miscarriage of justice. The law is trite that when a trial Court expresses that the case of the Plaintiff is preferred to that of the Defendant or vice-versa, that Court is deemed to have engaged on an assessment of the respective strength of the cases of the parties in a relative sense. OKEKE V. EZIKE (1993) 4 NWLR (PT. 290) 751. In the instant case, I hold that the trial Court after proper evaluation of the evidence and upon assessment of the respective strength of the cases of the parties before it, rightly declared that the Respondent herein has a better and valid title of the said property."Per ONYEMENAM, J.C.A. (Pp. 39-42, Paras. B-D) - read in context
(2018) LPELR-46397(CA) UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Borno State sitting in Maiduguri, delivered on 14th September, 2017 in SUIT NO: BOHC/MG/CV/06/2017; wherein A. Z. Mussa J. entered judgment for the Respondent as per paragraph 26 A-F of his Amended Statement of Claim.
By a Writ of Summons dated and filed on 17th January, 2017, the Respondent as claimant sought the reliefs contained in his Amended Statement of Claim accompanying the Writ of Summons. The claimant claimed against the Defendant jointly and severally as follows:
A. Declaration that the claimant is the rightful and equitable owner of that house lying and situate at No. 50A Government Quarters Cemetery Road, Old GRA Maiduguri, the house having been sold to the
Claimant in 2005 via an offer for sale dated 14th December, 2005 on owner-occupier basis being in occupation(2018) of the saidLPELR-46397(CA) house from 13th March, 1995 to 2005 as a result of the Borno State Government’s Owner-occupier policy implemented through the owner-occupier committee
1 which was inaugurated on 28th January, 2003. B. An order setting aside the sale by the Borno State Government House No. 50A Government Quarters Cemetery Road, Old GRA, Maiduguri to the 1st Defendant, because at the time the House was purportedly sold to the 1st Defendant on 15th January, 2003 the Borno State Government’s policy of owner-occupier did not commence in that the committee that implemented the policy of owner- occupier was not inaugurated and based on the fact the 1st Defendant was not the occupant of the House in dispute. C. An order setting aside the sale by the 1st Defendant to the 2nd Defendant of House No. 50A Government Quarters, Cemetery Road, Old GRA Maiduguri as illegal, null and void and of no legal effect because at the time the sale transaction took place the 1st Defendant title has been revoked on the ground that the 1st Defendant is a non-occupant as such the(2018) 1st Defendant LPELR-46397(CA) has nothing to transfer to the 2nd Defendant. D. A Declaration that the persons intended by the Borno State Government to benefit from the Government’s owner-occupier policy are
2 civil servants in lawful occupation of Government Quarters and not non-occupants. E. An order of perpetual injunction restraining the Defendants, their servants, agents or privies or any person acting on their behalf from taking possession of the House in dispute situate at No. 50A Government Quarters, Cemetery Road, Old GRA Maiduguri pursuant to or in order to give effect to the said null and void sale agreement between the 1st and 2nd Defendants and/or to give effect to the 2nd Defendants application for consent to assign the House to him written by EL-KANEMI Chambers dated 12th June, 2003. F. Cost of this suit.
The facts of the case revolve around the ownership of a 3 bedroom bungalow house lying and situate at No. 50A Cemetery Road, Old GRA Maiduguri, Borno State. The case of the Respondent is that he is the rightful owner of the said house(2018) having LPELR-46397(CA)been in lawful occupation from 1st March, 1995 when he was serving as a Medical Doctor with the Borno State Specialist Hospital and upon payment of N50 (Fifty Naira) monthly, up till 2005 when the said house was
3 allocated and sold to him by the State Government via an offer for sale dated 14th December, 2005, through the Borno State Government policy for the disposal of its houses on owner-occupier’s basis. It is the Respondent’s case that he was in peaceful occupation of the said house without challenge from any one until sometimes in 2003 when the 1st Appellant through his Counsel served him a 7 days quit notice; followed by 7 days Notice of owners intention to recover possession on the ground that the said house was sold to the 1st Appellant by the Borno State Government. For the fact that the house he had been occupying for years was said to have been sold to the 1st Appellant on the basis of owner-occupier when in actual sense the 1st Appellant was not the occupier of the house, the Respondent wrote a request for arbitration in respect of the said house to the Chief of Staff at the time dated 17th July, 2003 and later wrote another request to the then executive Governor dated 2nd August, 2003; to know why he was schemed out from benefiting from the Government policy of(2018) disposing GovernmentLPELR-46397(CA) houses on owner-occupier basis.
It is further the Respondent’s case that in
4 the process of his enquiry he found out at the Ministry of Land and Survey Maiduguri that the said house was sold to the 1st Appellant on 20th August, 2002 pursuant to his application on the same date. A Deed of Assignment was also executed between the Borno State Government and the 1st Appellant in respect of the said house at the consideration of N1,080,000.00 which was dated 8th October, 2002. The 1st Appellant applied for the Governor’s consent to assign via a letter dated 12th June, 2003. He later sold his title to the 2nd Appellant for the consideration of N2,000,000.00.
Equally the case of the Respondent is that in consideration of his letter of request for arbitration, the Commissioner for Land and Survey wrote a memo to the then Governor, recommending the revocation of the 1st Appellant’s title No. BO/45418 covering the said house in dispute and allocating same to the Respondent which was actually done via an offer for sale dated 14th December, 2005. That as compensation(2018) to the LPELR-46397(CA)1st Appellant’s revoked title and being a member of the Borno State House of Assembly, House No. A3/7 Pompomari Housing Estate (House of Assembly
5 Quarters) Maiduguri was allocated to the 1st Appellant via an offer for sale dated the same 14th December, 2005.
Furthermore, the case of the Respondent is also that, despite the settlement of the issue by the Ministry of Land of Borno State by allocating the said house to the Respondent, on 14th December, 2005; the 2nd Appellant yet served him with legal notices, a civil subpoena and a Writ of Summons claiming the said house and seeking vacant possession of the said house in Suit No. BRT/607/2016 pending before the Maiduguri Rent Tribunal. Upon further enquiry at the Ministry of Land, the Respondent discovered that the said house’s file with the Ministry was tampered with particularly the memorandum written by the then Commissioner of land while the subsequent minutes in the file were removed, hence the suit before the trial Court.
On the other hand, the case of the Appellants is that the said house(2018) was a transit LPELR-46397(CA) house used by the Borno State Government for visiting Doctors, that sometime in August 2002, he applied to the Borno State Government as a result of Government quarters disposal Policy for the purchase of
6 the said house which application was approved via an offer letter dated 26th September, 2002 and payment was made subsequently and all relevant documents such as Grant Right of Occupancy and Certificate of Occupancy over the said house were issued to him and Deed of Assignment between himself and the Borno State Government was equally executed. Based on the foregoing he also assigned his title to the 2nd Appellant via a Deed of Assignment which was executed in 2003 and that a consent to assign the said house to the 2nd Appellant was obtained. The 1st Appellant alleged that at no time was his title revoked neither was there any arbitration involving either the 1st or 2nd Appellants as parties in respect of the said house and there was nothing like compensation as a result of any revocation of 1st Appellant’s title to the house in issue. It is also the case of the 1st Appellant that as at 14th December, 2005 he no longer had the title over the said house, as he had already transferred his title to the 2nd Appellant in respect of the said house since 2003 at which time the government(2018) policy of LPELR-46397(CA) owner-occupier had not started; that house No. A3/7
7 Pompomari House of Assembly Quarters was sold to him in 2005 as owner-occupier, but not as a compensation for any revocation of the said house in question.
At the trial, the Respondent as claimant led evidence and tendered some documents admitted and marked Exhibits PW1A - PW1F. He subpoenaed witnesses who testified for him and tendered documents. The documents tendered through PW2 were admitted in evidence and marked Exhibits PW2A – PW2E, PW4 tendered Exhibits PW4A and PW4B, (Exhibit PW4B is the file containing virtually all the documents concerning the house in issue, particularly the Appellants’ C of O, approval etc.). The PW5 tendered Exhibit PW5A. The Respondent then closed his case.
The Appellants as Defendants opened their defence by the 1st Appellant testifying as DW1. The 2nd Appellant also testified as DW2 and tendered documents which were admitted and marked as Exhibits DW2B, DW2C, DW2K and DW2L. The(2018) Appellants LPELR-46397(CA) thereafter closed their case.
At the close of hearing, parties adopted their respective written addresses. In its considered judgment, the learned trial Judge found inter alia, thus:
8 “Having found the defendant’s titles invalid, null and void, I hereby declare that the claimant has a better and valid title of the said property which is in line with the Borno State Government policy of owners- occupier basis. On whole, judgment is hereby entered in favour of the claimant as per paragraph 26A-F of the Claimant’s Amended Statement of Claims. I assess the cost of the suit at N50,000.00.”
Peeved by the aforesaid judgment, the Appellants appealed to this Court vide a Notice and Grounds of Appeal dated 12th October, 2017 and filed on 16th October, 2017 containing 5 Grounds of Appeal. The parties filed and exchanged their respective briefs of argument in compliance with the rules of this Court. The Appellants’ brief of argument was dated 27th December, 2017 and filed on 28th December, 2017 wherein M.U. Faruk Esq. who settled the Appellants’ brief nominated 3 issues for the determination of the appeal. The Respondent’s brief was dated 6th(2018) February, LPELR-46397(CA)2018 and filed on 8th February, 2018 wherein H. Hala Esq. formulated four (4) issues for the determination of the appeal. Upon being served with the Respondent’s brief, the Appellants
9 filed an Appellants’ reply brief dated 26th February, 2018 and filed on 1st March, 2018.
When the appeal came up for hearing on 29th October, 2018; Faruk Esq. adopted the Appellants’ brief of argument as well as their reply brief in urging the Court to allow the appeal and set aside the judgment of the trial Court. On their own, Hala Esq. adopted the Respondent’s brief of argument and urged the Court to dismiss the appeal and affirm the judgment of the trial Court.
In the Appellants’ brief the 3 issues nominated for the determination of the appeal are as follows:
1. Having regard to the pleadings of Respondent and evidence vis-a-vis the requirement for proof in action for declaration of title, whether the trial Court was right to hold that the Respondent has a better and valid title? 2. Whether the failure by the learned trial judge to properly(2018) appraise, LPELR-46397(CA)assess and evaluate the totality of the evidence and documents tendered by both sides and make a proper finding thereon did not amount to denial of fair hearing and thereby occasioned miscarriage of justice?
10 3. Whether Constitutional Right of fair hearing has been breached and thereby occasioned miscarriage of justice when the trial judge raised an issue suo motu without calling parties to address him on the issue?
While in the Respondent’s brief the 4 issues formulated for the determination of the appeal are as follows:
1. Whether the judgment of the trial Court is supported by the pleadings of parties and evidence adduced before it? 2. Whether there is an admission by the Claimant/Respondent and against the Claimant/Respondent’s interest to be relied upon by the trial Court to enter judgment in favour of the Appellant? 3. Whether the trial Court is duty bound to consider appraise and evaluate all documentary evidence tendered and admitted before it in the course of its judgment? 4. Whether(2018) the trial LPELR-46397(CA) Court is right to have raised and determined suo motu the issue of taking judicial notice of the fact that Governor Mala Kachalla was not the Governor of Borno State on 26th June, 2003, a fact not raised by both parties?
11 I have carefully examined the issues formulated by the respective learned counsel in the matter, to my mind the 3 issues that can adequately determine this appeal lies within the 2 sets of issues submitted by both counsel in this appeal. Even though the appeal is the discontent of the Appellants, the Appellants’ issues are inelegantly couched, while the Respondent’s issues 1 and 4 are relatively apt, but his issues 2 and 3 will be compressed and re-couched to form 1 issue to serve as issue No. 2. The re-couched issue No. 2 is as follows:
Whether having regards to the pleadings of the parties, and the circumstances of the case, the trial Court is under a duty to appraise and evaluate the totality of the evidence adduced before it and all the documents tendered by Counsel on both sides with a view to determining the matter one way or the other?
I shall determine the appeal based on the Respondent’s issues 1 and 4; issue 4 shall serve as issue 3, while the issue I have(2018) so framed LPELR-46397(CA) stands as issue 2. I shall resolve and determine the issues seriatim.
12 SUBMISSIONS ON ISSUE NO.1 Whether the judgment of the trial Court is supported by the pleadings of parties and evidence adduced before it?
He referred to page 175 lines 19-20 and page 176 lines 18-20 of the records to contend that instead of the Respondent to prove his case, the trial Court shifted the burden of proof on the Appellants. He argued that throughout the Respondent’s evidence there is no single evidence that supported the facts pleaded, rather all the Exhibits tendered are at variance with the Respondent’s pleadings. He also referred to paragraphs 10 and 11 of the Respondent’s Statement of Claim and paragraph 10 of his Statement on Oath at page 124 line 15 of the records to say that the Respondent admitted the title of the 1st Appellant, but only contended that the said 1st Appellant’s title was revoked through arbitration that granted the Respondent title to the said property. He however noted that the Respondent(2018) failed to LPELR-46397(CA) lead evidence on the said arbitration as there was no such arbitration. He submitted that parties and Courts are bound by the pleadings of parties and that evidence at variance with party’s pleadings goes to
13 no issue and where a party admitted fact in his pleadings the Court is entitled to enter judgment based on the said admission. He cited: AGIDIGBI V. AGIDIGBI (1992) 2
NWLR (PT. 221) 98; BANKOLE V. DADA (2004) 12 FWLR (PT. 242) 628; OLOHUNDE V. ADEYOJU (2000) FWLR (PT. 24) 1355; ANYAH V. IMO CONCORDE HOTELS LTD (2003) FWLR (PT. 138) 1306; SECTION 20 EVIDENCE ACT, 2011.
Learned counsel for the Appellants faulted the position of the learned trial Court at page 173 lines 2 - 3 of the record that the Appellants tampered with Exhibit PW4B, contending that the Respondent did not plead that the Appellants had tampered with any document which was in custody of the Ministry of Land and Survey Borno State and was only brought in by a subpoenaed witness in favour of the Respondent. He submitted that allegation of tampering with a document is a fraud and criminal in nature, which even in a civil matter must be proved beyond reasonable doubt. He(2018) cited: BABALE LPELR-46397(CA) V. EZE (2011) 11 NWLR (PT.
1257) 48; FABUNMI V. AGBE (1985) NWLR (PT. 2) 299. The learned counsel for the Appellants concluded his submission on this issue that the finding of the trial Court that the
14 1st Appellant tampered with Exhibit PW4B is perverse and that where a holding of a trial Court is not supported by evidence, this Court must interfere and set it aside. He urged the Court to set it aside and resolve this issue in favour of the Appellants.
In his response, Mr. Hala, learned counsel for the Respondent conceded to the fact that the burden of proof in civil matter is on he who asserts the affirmative of facts in issue and a party who will fail if no evidence is adduced on either side. He noted that the standard of proof in civil suit is on the balance of probabilities or preponderance of evidence. He referred to: SECTIONS 131 AND 132
EVIDENCE ACT, 2011; OWONIBOYS V. UBN (2003) 9 MJSC 38; OSUJI V. EKEOCHA (2009) 7 MJSC 74; SECTION 134 OF EVIDENCE ACT, 2011. He further referred to SECTION 143 OF THE EVIDENCE ACT, 2011 to say that in a land matter where a person who is in possession alleges that he is the owner of the land in his possession(2018) the burden LPELR-46397(CA) of proving otherwise is on the person who affirms that the person in possession is not the owner. He referred to pages 122 lines 20-30, page 124 lines 35-39 and page 125 lines 1-30 of the records
15 to say the Respondent has been in possession of the house in question and as such even if the trial Court shifted the burden of proof on the Appellants, that was in accordance with Section 143 of the Evidence Act, 2011.
The learned counsel submitted that the fact that Exhibit PW4B has been tampered with was pleaded and evidence led in paragraphs 15, 16, 17, 22, 23 and 24 of the Respondent’s Amended Statement of Claim and paragraphs 15, 16, 17, 21, 22, and 23 of the Respondent’s Statement on Oath respectively; at pages 12, 13, 14, 19 – 20 of the records. He argued that the Appellants neither applied for a consequential order to amend their statement of defence to reply to the new paragraphs listed above. He referred to the dates of the 1st Appellant’s application to the Borno State Government for the allocation of the house in issue vis-à-vis the date of its approval at the bottom of the said application as 20th August, 2002 and 19th August, 2002 respectively. He also referred to the evidence of PW1, PW3 and Exhibit(2018) PW4B at LPELR-46397(CA) page 126 lines 30-37 to say that the approval came a day earlier to the application and the
16 same signature on the approval was exactly the same on the Certificate of Occupancy dated 26th June, 2003 purportedly to be that of the then Governor of Borno State, Late Mala Kachalla, while in fact Mala’s tenure elapsed on the eve of the swearing-in of Gov. Ali Modu Sheriff on 29th May, 2003 as such Mala could not have signed the said Certificate of Occupancy as he had no power to sign same. He submitted that the trial Court has the power to scrutinize all the documents before it so as to arrive at the just conclusion of the matter and that a Certificate of Occupancy is not a conclusive proof of title, but only raises a rebuttable presumption in favour of the holder as rightly observed by the trial Court. He cited:DABO V.
ABDULLAHI (2005) 5 MJSC 57; EZEANAH V. ATTA (2004) 4 MJSC 1; DABUP V. KOLO (1993) 9 NWLR (PT. 317) 254.
He urged the Court to hold that the judgment of the trial Court was supported by the parties’ pleadings and evidence and resolve(2018) the issue LPELR-46397(CA) in favour of the Respondent.
In his reply brief, learned counsel for the Appellants submitted on this issue that the duty of a trial Court is to try
17 the specific issues as set out by parties in their pleadings to the extent that they are supported by credible evidence, but not to invent a case for the parties. He cited:
OLUFOSOYE V. FAKOREDE (1995) 1 NWLR (PT. 272) 747. He urged the Court to hold that the issue of signature was never pleaded nor evidence led on it, but was only made out by the trial Court. He urged the Court to allow the appeal.
RESOLUTION OF ISSUE 1 On this issue, the learned counsel on both sides are in consensus on the general principle of law that the burden of proof in a civil matter generally lies on the party who asserts the affirmative of a fact in issue to prove same to the satisfaction of the Court. They cited Sections 131-133 of the Evidence Act, 2011 and numerous judicial authorities in support. However, they differed on the position of the learned trial Judge that the Respondent as claimant has a better and valid title of the said property in dispute. On this, the (2018)Appellants complainedLPELR-46397(CA) that the trial Court shifted the burden of proof to him, referring to pages 175 lines 19-20 and 176 lines 18-20 of the records. While the Respondent argued
18 that in a land matter where a person who is in possession alleges that he is the owner of the land in his possession, the burden of proving otherwise is on the person who affirms that the person in possession is not the owner relying on Section 143 of the Evidence Act, 2011. It is pertinent to re-iterate the position of the law as it is and has always been as envisaged by Sections 131-133 of the Evidence Act, 2011, that he who asserts the existence of certain facts must prove them and once this is done the burden shifts to the other party, because the burden is not static or permanent. It shifts between parties and rests on the party whom judgment would be given against if no more evidence is adduced. The standard of such proof is decided or determined on the preponderance of evidence and balance of probabilities. See: AGBAKOBA V. INEC
(2008) 18 NWLR (PT. 1119) 489; U.T.C. (NIG.) LTD V. PHILIPS (2012) 6 NWLR (PT. 1295) 136; WOLUCHEM
V. GUDI (1981) 5 SC 291; OGOCHUKWU V. A.G. RIVERS STATE (2012) 6 NWLR (PT. 1295) 53; DAODU V. NNPC(2018) (1998) 2 NWLRLPELR-46397(CA) (PT. 538) 355. In the instant case the Appellants’ complaint is that the trial Court shifted the burden of proof to the
19 Appellants while it was for the Respondent to discharge the said burden. He contended that the burden still rested squarely on the Respondent even if the Appellants failed to adduce any evidence on their side. He relied on: GUNDIRI
VS NYAKO (supra). The law is trite that in an action for declaration of title, the claimant succeeds on the strength of his case and not on the weakness of the Defendant’s case and the burden is on the claimant to satisfy the Court on the basis of the evidence he adduced that he is entitled to a declaration of title. His claim fails and his action dismissed once he is unable to discharge the said burden placed on him by the law.ABISI V. EKWEALOR (1993) 6 NWLR (Pt. 302) 43;
UCHE V. EKE (1998) 1 NWLR (PT. 564) 24. I believe it will be necessary to reproduce the holding of the learned trial Judge at pages 175 and 176 of the records as it relates to the Appellants’ complaint where the learned trial Judge stated thus:
“It is also settled law that, Certificate of Occupancy founded(2018) on the fraudulentLPELR-46397(CA) sale of property is not evidence of title, since fraud vitiates title...” and
20 “Having found the Defendant’s title invalid, null and void, I hereby declare that the claimant has a better and valid title of the said property, which is in line with the Borno State Government Policy of Owner- occupier basis.” A careful examination of the trial Court’s judgment reveals that the aforesaid excerpt was arrived at after a thorough evaluation of the evidence adduced by parties at the trial vis-a-vis the pleadings of the parties, particularly paragraphs 1, 4, 5 and 6 of the Respondent’s Amended Statement of Claim at pages 10 and 11 of the records which were to the effect that the Respondent as claimant was claiming title by relying on acts of ownership and acts of long possession as well as offer for sale by the Borno State Government, while the Appellants relied on grant by way of document of title to the land (i.e. C of O) which is also one of the (5) ways of proving title to land. I do not agree with the submission of the learned counsel for the Appellants that the learned trial Judge shifted the burden of proof to(2018) the Appellants, LPELR-46397(CA) rather he only compared and preferred the evidence adduced by the
21 Respondent over that of the Appellants on their claim of title. He observed that the parties traced their title from a common root which is the Borno State Government. The trial Court opined that the Appellants’ account was full of irregularities. He found the same invalid, null and void. The law is settled that where parties in a land dispute trace their title to a common root, it is the party who establishes a better title to the said land that is entitled to succeed in such a claim for declaration of title. In the instant appeal, the parties having traced their title from the Borno State Government as the original grantor, the trial Court was right to have compared the title of both parties in the process of evaluating the evidence adduced by them with a view to finding out who amongst the parties established a better title. So doing in my view, does not amount to shifting the burden of proof to the Appellants as wrongly contended by the learned counsel for the Appellants. The law placed a duty on the trial Court to properly evaluate the evidence adduced by the parties at trial before reaching its decision(2018) on the matter LPELR-46397(CA) and where the said matter is civil
22 such as this, it is decided based on preponderance of evidence and balance of probabilities. The principle of the evaluation of evidence as enunciated by Fatayi Williams
JSC (as he then was) in MOGAJI V. ODOFIN (1978) 4 SC
91 is as follows:
“In short before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together side by side. He will then see which is heavier not by the number of the witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that civil case is decided on the balance of probabilities. AKINSANYA VS SOYEMI(2018) (1998) LPELR-46397(CA)8 NWLR (PT. 560) 49 AT 56.” It is pertinent to state here that whether the trial Court was right that the Appellants’ title is invalid, null and
23 void is something else that I will yet decide, but he was certainly right in my opinion to have compared and weighed the evidence of the parties with a view to finding out who has a better title and that does not in any way amount to shifting the burden of proof to the Appellants, even though the law would in the circumstances of this case allow for the said shifting since the Respondent herein as claimant pleaded and relied on the act of possession as his root of title. By virtue of Section 147 of the Evidence Act, whenever the question of ownership of a thing is in issue, the person in possession is presumed to be the owner of such thing. The burden of proving that he is not the owner is on the person who affirms that he is not the owner. OKHUAROBO V. AIGBE (2002) 9 NWLR (PT.
771) 29; EBONG V. IKPE (2002) 17 NWLR (PT. 797) 504. In the instant appeal, the trial Court could have been right if it shifted the burden of proof to the Appellants, the
Respondent having relied on act of possession, the presumption of which is that he is the owner of the house while the(2018) burden of provingLPELR-46397(CA) otherwise would be
24 on the Appellants who affirms that the Respondent is not the owner. On the Appellants’ contention that: the Respondent admitted in his Amended Statement of Claim that the said house was sold to the Appellants in 2002, and as such judgment ought to be given in their favour as parties are bound by their pleadings; all the evidence adduced by the Respondent are at variance with his pleadings; the law is settled that facts admitted need no further proof; the Respondent as claimant could only succeed on the strength of his case and not on the weakness of the Appellants’ case. It is correct as postulated by the learned counsel for the Appellants that parties and Courts are bound by the parties pleadings placed before the Court and that admitted facts need no further proof. From the standpoint of the fact that what is admitted need no further proof by evidence; I shall examine the pleadings of the Respondent who was the claimant to determine whether he had actually admitted that the house in dispute was sold(2018) to the Appellants. LPELR-46397(CA) Worthy of consideration are paragraphs 4, 5, 6, 8, 9, 10, 11, 12, 13, 19, 20 and 25 of the Respondent’s
25 Amended Statement of Claim and paragraphs 3, 4, 5, 7, 8, 9, 10, 12, 13, 18, 19, 21, 23 and 24 of the Respondent’s Amended Statement on Oath at pages 17 – 20 of the records. A careful examination of the referred paragraphs in my view clearly point to the fact that the Respondent had been in a lawful, peaceful and active possession of the said house since 1995, first as a tenant, not until 2003 when the 1st Appellant served him with notice to quit which necessitated his inquiries about the status of the house at the Ministry of Land. From the said ministry, he discovered that the house was erroneously sold to the 1st Appellant and that Deed of Assignment was executed to that effect whereupon, he wrote a letter of request for arbitration to the then executive Governor. The letter was considered and the 1st Appellants’ grant was revoked and in its stead the said house was sold to the Respondent on the basis of owner-occupier policy of the Government at the time. This to me does not in any way mean that the Respondent admitted(2018) that the said LPELR-46397(CA) house became the property of the Appellants in 2002, hence his refusal to vacate the premises
26 at the expiration of the 7 days Notice to quit served on him by the Appellants and his subsequent action towards claiming the ownership of the house. This in my view does not amount to admission per se to entitle the Appellants to the judgment of the trial Court without the need for further proof. I hold that the trial Court was right for not finding for the Appellants based on their perceived admission by the Respondent in his pleadings. The provision ofSection 20 of the Evidence Act, 2011 is therefore inapplicable in the circumstance of this case, there being no admission of any fact by the Respondent. For this, and coupled with the fact that the Respondent pleaded and relied on act of ownership and possession to which the Appellants did not specifically deny or debut in their pleadings, I hold that the fact that the Respondent was and had been in possession of the house in dispute is deemed admitted. The law is settled by virtue of Section 143 of the Evidence Act, 2011; (as amended), that in a land matter where the claimant pleads possession as his root of title and the Defendant either directly or(2018) indirectly LPELR-46397(CA)admits possession then the onus shifts to the Defendant to
27 prove that the claimant is not the owner of the property.
See: EBONG V. IKPE (2002) 17 NWLR (PT. 797) 504. In the instant appeal, there is nowhere the Appellants denied categorically that the Respondent was not in possession of the house in dispute, rather they contended in their pleadings that the house was only used as transit house for medical Doctors by the Borno State Government, but no evidence was led on that assertion. A close look at the Appellants’ joint Statement of Defence and their evidence under cross examination show that the Appellants admitted that the Respondent was in actual possession which admission in my view strengthened the case of the Respondent. The trial Court was entitled to use the admission and credit same in favour of the Respondent.
AKINOLA V. OLUWO (1962) ALL NLR 224; ORO V. FALADE (1995) 5 NWLR (PT. 396) 385; EBE & ANOR V. NNAMANI (1997) 7 NWLR (PT. 513) 479. Notwithstanding the fact that the trial Court did not credit the aforesaid Appellants’ admission to strengthen the Respondent’s(2018) case, the LPELR-46397(CA) trial Court was nevertheless right to have focused on finding out who amongst the parties
28 established a better title, as both parties traced their title from common root. On the Appellants’ contention that the Respondent never pleaded that the Appellants tampered with Exhibit PW4B, but only pleaded that in the course of writing a search report by the staff of the Ministry of Land it was discovered that the file’s pages were tampered with as such he submitted that the findings of the trial Court that the 1st Appellant tampered with Exhibit PW4B is perverse considering that allegation of tampering with document is a fraud and criminal in nature which must be proved beyond reasonable doubt even in a civil matter such as the one at hand. I believe it will not be out of place to reproduce the holding of the trial Court, complained about by the Appellants’ counsel. The trial Court at page 175 held thus:
“This Court has taken judicial notice that on 26/6/03 Mala Kachallah was not the Governor of Borno State Government, but his Excellency Senator Ali Modu Sheriff. These (sic) pose a serious doubt of genuineness(2018) of LPELR-46397(CA) Certificate of Occupancy No. BO/45418. Having said this, I spare no doubt that the title of the
29 1st Defendant has been tampered with and it ought to be revoked.” In as much as I can agree with the Appellants’ contention that the Respondent never pleaded anywhere in his pleadings that the Appellants tampered with Exhibit PW4B, but I disagree with his submission that the trial Court held that the 1st Appellant tampered with Exhibit PW4B. This is so, as there is nowhere in the above excerpt or anywhere in the judgment under review the trial Court made such pronouncement as wrongly contended by the learned Appellants’ counsel. Now coming to the allegation of tampering with Exhibit PW4B as found by the trial Court, which the Appellants contended that it must be proved beyond reasonable doubt. To properly address this issue there is the need to understand the meaning of the term “Tamper” and to do that, recourse must be made to both English and Law Dictionaries for a clear definition. The GEDDES & GROSSET, English Dictionary New Edition, page 420. defines the word; thus: “Tamper means: To meddle (2018)(with); to LPELR-46397(CA) interfere (with). Also EDDESG & GROSSET, New English Dictionary and thesaurus, New
30 Edition, page 585 defines the word “tamper to mean: alter, conquer, dabble, damage, interfere, meddle; intrigue, seduce, suborn.” While the Black’s Law Dictionary 8th Edition defines the term Tamper to mean:- 1. “To meddle so as to alter (a thing); esp. to make changes that are illegal, corrupting or perverting. 2. To interfere improperly; to meddle. It further defines this word tampering to mean: 1. The act of altering a thing especially the act of illegally altering a document or product, such as written evidence or a consumer good....” From the foregoing definitions, the word “tamper” could simply be defined as to meddle, to alter, to make changes or to illegally alter a document, such as written evidence. By the inclusion of the words “corrupting, perverting, and illegally” in the definition of the term, “tamper” falls within the purview of crime. I agree with the Appellants’ submissions that allegation of crime even though in a civil matter such(2018) as this LPELR-46397(CA) requires prove beyond reasonable doubt. See: Section
31 138 of Evidence Act, 2011 (as amended). Going by the Respondent’s paragraphs 15, 16, 17, 22, 23 and 24 of his Amended Statement of Claim and paragraphs 15, 16, 17, 21, 22 and 23 of his Statement on Oath at pages 12, 13, 14 and 19-20 of the records respectively, the said allegation of criminal act is not directly in issue, and is not directed at any party in the matter or anyone at all as stated by the Appellants to require a proof beyond reasonable doubt as envisaged by Section 138 (1) (2). Considering the pleadings of the parties before the trial Court, particularly the referred paragraphs of the Respondent’s pleadings which were neither denied, rebutted nor challenged by the Appellants due to their failure to file Amended Statement of Defence to address the said paragraphs, the facts in the paragraphs under consideration are deemed admitted. The law is trite that what is admitted need not be proved and where evidence is led by a party and there is no contrary evidence from the other party, the evidence is deemed to be as true and accepted.(2018) OKOEBOR LPELR-46397(CA) V. POLICE COUNCIL (2003) 12
NWLR (PT. 834) 444;AKINLAGUN V. OSHOBOJA (2006) 12 NWLR
32 (PT. 993) 60; IBADAN L.G.P.C. LTD V. OKUNADE (2005) 3 NWLR (PT. 911) 45. In the instant case, the Appellants having admitted the issue of tampering with Exhibit PW4B coupled with the testimony of PW3, (a subpoenaed witness at page 23 of the records) which was not shaken under cross examination, one can safely conclude that the Respondent as Claimant had discharged the burden of proving beyond reasonable doubt that Exhibit PW4B was tampered with; and the burden of proving reasonable doubt shifted to the Appellants which they failed to do in line with the provision of Section 138 (3) of the Evidence Act, 2011 (as amended). Having said that, I hold the view that the trial Court was right in holding that Exhibit PW4B had been tampered with rendering the title of the Appellants invalid. I also hold that the trial Court discharged its primary duty of evaluating the evidence adduced before it vis-a-vis the pleadings of the parties before reaching its conclusion.
MOGAJI V. ODOFIN (supra); AKINSANYA VS SOYEMI (supra).(2018) Furthermore, LPELR-46397(CA) it is my view that the Appellants have not shown that the trial Court’s findings based on the
33 evidence before it are perverse or has occasioned a miscarriage of justice to warrant the interference of this
Court. OKEKE V. EZIKE (1993) 4 NWLR (PT. 290) 751;
LAWAL V. DAWODU (1972) 8 & 9 SC 83; FASHANU V. ADEKOYA (1974) 6 SC 83; ASARIYU V. THE STATE (1987) 4 NWLR (PT. 67) 709;AMUNEKE V. THE STATE (1992) 1 NWLR (PT. 217) 338. Having said this, issue No. 1 is therefore resolved in favour of the Respondent.
SUBMISSIONS ON ISSUE NO. 2 Whether having regards to the pleadings of the parties, and the circumstances of the case, the trial Court is under a duty to appraise and evaluate the totality of the evidence adduced before it and all the documents tendered by Counsel on both sides with a view to determining the matter one way or the other?
The learned counsel for the Appellants submitted that it is the primary(2018) duty of LPELR-46397(CA)a trial Court to evaluate and appraise all the evidence both oral and documentary placed before it before arriving at a conclusion. He contended that the trial Court’s failure to properly evaluate the evidence before it amounted to denial of fair hearing as enshrined in Section 36
34 (1) of the Constitution of the Federal Republic of Nigeria
1999 as amended. He referred to: GEORGE V. FRN
(2004) 5 NWLR (PT. 1399) 1; AREGBESOLA V. OLAGUNSOYE (2011) 9 NWLR (PT. 1253) AT 458.
The learned counsel further submitted that all the documents tendered and admitted before the Court became part and parcel of the evidence to be considered by the trial Court in the determination of the issues before it but that the trial Court failed to consider the same. He argued that the trial Court rather restricted itself to Exhibits PW4B and DW2B and based its decision on them despite the Respondent’s admission that the house was sold to the 1st Appellant. He urged the Court to hold that the trial Court’s failure to consider all the evidence renders its decision perverse and the same amounts to denial of fair hearing based on Section 31 (1) of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended). He cited: EKONG
V. OTOP (2004) 11 NWLR (PT. 1419) 549; ADEBAYO V. SHOGO(2018) (SUPRA); LPELR-46397(CA) SBN PLC V. CBN (2009) 6 NWLR (PT. 1137).
He urged the Court to resolve this issue in favour of the Appellants.
35 Responding, Mr. Hala, the learned counsel for the Respondent contended that the Respondent never admitted explicitly that the house belongs to the 1st Appellant. He argued that the Respondent only stated that he discovered the house in issue was wrongly sold to the 1st Appellant in 2003 as a result of which he wrote a request letter for arbitration. That the outcome of the arbitration led to the reversal of the sale to the 1st Appellant and a subsequent sale of the house in dispute to the Respondent based on owner-occupier policy since the Respondent was the person who was and had been in occupation of the house. He referred to paragraphs 6-13 of his Statement of Claim and paragraphs 5-11 of his Statement on Oath at pages 11-12 and 17-18 of the records of appeal. The learned counsel further submitted that before a Court can decide whether there is an admission or not in a statement of claim, statement of defence or reply, the whole pleadings and not one paragraph in isolation of the other paragraphs, must be considered. He cited: NGIGE V. OBI (2006) ALL FWLR
(PT. 330)(2018) 1041; BUHARI LPELR-46397(CA) V. OBASANJO (2005) ALL FWLR (PT. 273) 1; CAPPA V. AKINTILO (2003) 6 MJSC 62.
36 It was further submitted on behalf of the Respondent that the trial Court is not duty bound to consider, appraise and evaluate all documentary evidence tendered before it in the course of its judgment but is only bound to consider those useful documentary evidence that supports the case made by parties. He cited: NNEJI V. ZAKHEM CON. (NIG.) LTD
(2006) ALL FWLR (PT. 330) 1021; BAMGBEGBIN & ORS. V. ORIARE & ORS. (2009) 6 MJSC 149.
The learned counsel submitted that where contending parties in a land matter are shown to have derived their titles from the same source, the issue is to determine who has a better title. He maintained that the position is the same where the contending parties claim to be in possession of the same land. He cited: ADESINA V.
AFOLABI (2002) FWLR (PT. 105) 748; OYEROGBA V. IDO LGA (2001) FWLR (PT. 36) 928; APENA V.
AILERU (2015) ALL FWLR (PT. 790) 1256.
The learned(2018) counsel LPELR-46397(CA) urged the Court to hold that the trial Court had properly appraised, evaluated and ascribed probative value to all the relevant documentary evidence before it in the course of its judgment and to also resolve the
37 issue in favour of the Respondent.
While responding in his reply brief, the learned counsel for the Appellants submitted on this issue that admission is admission and there is no two ways about it, that the facts that the Respondent admitted that the said house originally belonged to the Borno State Government and that the State Government sold it to the 1st Appellant as stated in paragraph 11 of the Respondent’s Amended Statement on Oath is enough admission against interest as the law is trite that facts admitted need no prove. He cited : ALHASSAN
V. ISHAKU (2016) 10 NWLR (Pt. 1520) 230; KAYILI V. YILBUK (2015) 7 NWLR (Pt. 457) 26.
He concluded his submission on this issue that the purpose of pleadings is to narrow down the dispute of the parties as to what are admitted and what are joined issues. He relied on: AFRICAN CONTINENTAL BANK LTD. V. ALH.
UMARU GWAGWADA (1994) 5 NWLR (PT. 342) 25 to urge the(2018) Court to LPELR-46397(CA) resolve the issue in favour of the Appellant.
RESOLUTION OF ISSUE NO. 2 The contention of the learned counsel for the Appellants on this issue was that the Respondent admitted that the house
38 was sold to the 1st Appellant by the Borno State Government in 2002. He submitted that the trial Court was duty bound to consider all the evidence adduced by the parties and to limit itself to the pleadings of the parties; and as such ought to have found for the Appellants based on the Respondent’s admission.
It is correct as submitted by the learned counsel for the Appellants that the evaluation and assessment of the evidence adduced by parties before a Court is the primary duty of the trial Court and that the Court and the parties are bound by the pleadings of the parties placed before the
Court. BASHAYA V. STATE (1998) 5 NWLR (PT. 550)
351 SC; ELENDU V. EKWOABA (1998) 12 NWLR (PT. 578) 320. However, in the instant case, as I earlier stated somewhere in this judgment that the contention of the learned counsel for the Appellants that by paragraphs 9 and 10 of the Respondent’s Amended Statement of Claim, he admitted that the house in dispute was sold to the 1st Appellant(2018) by the Borno LPELR-46397(CA) State Government in 2002 does not amount to admission that the disputed house belongs to the 1st Appellant given the circumstances in which the said perceived admission was made.
39 Accordingly, I will not revisit the said issue. Having said this, I hold the view that considering the entire pleadings of the Respondent, there was no admission against interest by the Respondent to warrant the trial Court giving judgment in favour of the Appellants. With regard to evaluation of evidence, I agree with the submission of the learned counsel for the Respondent that the trial Court is not duty bound to consider and evaluate all the documentary evidence adduced by the parties before it arrives at its decision, rather evaluation of relevant and material evidence before the Court and ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. This is particularly so, because the law is trite that admission of document in evidence in the course of trial is one thing, while the requirement of their consideration in the judgment depends entirely on their relevance to the issue before the Court.
ABALOGU V. SHELL PET. DEV. (NIG) LTD (1999) 8
NWLR (PT.(2018) 613) 12; LPELR-46397(CA) AGBI V OGBEH (2006) 11 NWLR (PT. 990) 65 SC; OJOKOLOBO V. ALAMU (1998) 9
40 NWLR (PT. 565) 226 SC, SHA V. KWAN (2000) 5 SC 178. In the instant case, the parties led evidence and tendered several documents which were admitted in evidence all of which formed part and parcel of the evidence placed before the Court for consideration. The trial Court, however, focused its attention on the evaluation of the relevant and material documents such as Exhibit PW2B and Exhibit PW4B and ascribed probative value to both oral and documentary evidence it considered relevant to the issue before it before arriving at its decision. Thus I cannot fault the trial Court for rightly discharging its primary function. The law is settled that once there is proper evaluation of evidence by a trial/lower Court, an appellate Court has no business interfering, unless the decision is perverse and has occasioned a miscarriage of justice. IHEANACHO V. EJIOGU (1995) 4 NWLR (PT.
389) 324 AT 339; NWACHUKWU V. NWOSU (1990) 7 NWLR (PT. 160) 72; BALOGUN V. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66. The trial Court having considered the relevant(2018) documents LPELR-46397(CA) and material evidence that are in tune with the issues before it and ascribed probative values to the evidence, I hold the view
41 it properly evaluated the evidence placed before it by the parties before arriving at its decision. Therefore, this Court has no business interfering with its findings the judgment having not been shown by the Appellants to have occasioned a miscarriage of justice. The law is trite that when a trial Court expresses that the case of the Plaintiff is preferred to that of the Defendant or vice-versa, that Court is deemed to have engaged on an assessment of the respective strength of the cases of the parties in a relative sense. OKEKE V. EZIKE (1993) 4 NWLR (PT. 290) 751. In the instant case, I hold that the trial Court after proper evaluation of the evidence and upon assessment of the respective strength of the cases of the parties before it, rightly declared that the Respondent herein has a better and valid title of the said property. This issue is resolved in favour of the Respondent.
ARGUMENTS ON ISSUE NO. 3 Whether the trial Court was right to have raised and determined(2018) suo motuLPELR-46397(CA) the issue of taking judicial notice of the fact that Governor Mala Kachalla was not the Governor of Borno State on 26th June, 2003, a fact not raised by both parties.
42 Mr. Faruk, the learned counsel for the Appellants submitted that our adversarial system of justice frowns at the trial Court’s attitude of jumping into the arena of trial, as litigation is not that of the Court, but of the parties and where a Court raises an issue suo motu without inviting parties to address it on the issue, it has removed itself from its exalted position to flirt with the parties and in the course get itself soiled. He argued that even though the Court has the power to raise issue suo motu, it must invite the parties to address it on the issue so raised, except where the issue raised suo motu is an issue of jurisdiction.
He cited: USMAN V. SOLANKE (2016) 4 SQLR (PT. 1)
30-31; OBUMSELI V. UWAKWE (2008) 8 NWLR (PT. 1143) 55; AJAO V. ALAO (1986) 5 NWLR (PT. 45) 802.
The learned counsel referred to the judgment of the trial Court at page 173 lines 26-28 of the record and contended that the trial Court misperceived the position of the Appellants,(2018) in that the LPELR-46397(CA) Appellants did not seek any relief to be enforced, but the Respondent did. He submitted that the reliefs sought by the Respondent at paragraph 26 (b)
43 is not tenable as the Court lacks the jurisdiction to make same as Borno State Government is not a party to the case.
He relied on:CARNAL INV. LTD. V. T.C.R. LTD. (2017)
3 NWLR (PT. 553) 460. He urged the Court to allow the appeal, set aside the decision of the trial Court and dismiss the claims of the Respondent for failure to prove his claims for declaration of title.
Responding on this issue, Mr. Hala, the learned counsel for the Respondent reiterated the position of the law that where a Court raises an issue suo motu, it ought to call on the parties involved to address it on the issue. He noted however that, that is the general rule which is not without exceptions. He went ahead to list and stated the 3 exceptions amongst which is “where both parties are/were not aware or ignored a statute which may have a bearing on the case i.e. by virtue of a statutory provision, the judge is expected to take judicial notice. Referring to Section 73 of the Evidence Act now Section 122 (2) of the Evidence
Act, 2011(2018) (as amended). LPELR-46397(CA) He also cited: TUKUR V. GOVT
OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517; OMOKUWAJO V. FRN
44 (2013) 9 NWLR (Pt. 1359) 300; OMONIYI V. ALABI (2015) ALL FWLR (Pt. 774) 181; EFFIOM V. CROSS RIVERS STATE INDEPENDENT ELECTORAL COMMISSION (2010) ALL FWLR (PT. 552) 1610.
The learned counsel referred to paragraphs 15, 16, 17 , 22, 23 and 24 of the Respondent’s Amended Statement of Claim as well as paragraphs 15, 16, 17, 21, 22 and 23 of this Statement on Oath at pages 12, 13 14; and pages 19-20 of the records to contend that the issue of tampering with Exhibit PW4B has been pleaded and evidence led, but was not responded to by the Appellants in their statement of defence and that the trial Court was fortified by the 2nd leg of the exceptions to the general rule stated above. He argued that the trial Court took judicial notice of the facts contained in the said Exhibit PW4B to arrive at its decision. He submitted that the aforesaid general rule applies mainly to issue of fact and to warrant an appellate Court’s reversal of the decision, the Appellants must go further to show that the failure(2018) to hear LPELR-46397(CA) him on the point occasioned a miscarriage of justice. And that the issues so raised suo motu was not
45 covered in the pleadings at the trial or on appeal do not form part of the grounds of appeal or issues for determination. He cited: DAIRO V. UBN (2007) 11 MJSC
74; EFFIOM V. C.R.O.S.I.E.C (supra).
The learned counsel for the Respondent urged the Court to hold that the trial Court has the power to take judicial notice of the fact of assumption of office of a State Governor under Section 122 (2) (d) of the Evidence Act, 2011 and resolve the issue in favour of the Respondent, dismiss the appeal and affirm the judgment of the trial Court.
In his reply brief, the learned counsel for the Appellants submitted that all the documents tendered form part of the evidence before the trial Court to which the Court is duty bound to appraise, evaluate and state the issues in controversy between the parties and resolve them on the basis of relevant laws. He argued that it is not for the Court to make (2018)case for any LPELR-46397(CA) of the parties and failure of the Court to consider all the issues before it amounted to denial of fair hearing. He cited:BUKAR V. BASHIR (2014) 11
NWLR (PT. 1417) 68; ADENIJI V. ADENIJI (2003) 15 NWLR (PT. 376) 102; KAYILI V. YILBUK (supra).
46 He urged the Court to resolve all the issues in favour of the Appellants, allow the appeal, set aside the judgment of the trial Court.
RESOLUTION OF ISSUE 3 I agree with the learned counsel for the Appellants’ submission that a Court of law has no power to raise an issue suo motu and go ahead to resolve it without inviting the parties to address it on the so raised issue. This however is the general rule which has 3 exceptions as were rightly listed by the learned counsel for the Respondent as enumerated by the Supreme Court in the case of
OMOKUWAJO V. F.R.N (2013) 9 NWLR (PT. 1359) 300
AT 332 PARAS. B-F. A trial Court has the powers to raise an issue suo motu, and proceed to determine the same without inviting the parties to address it, if: (a) The issue relates to the Courts own jurisdiction;
(b) If both parties are or were not aware or ignored a statute which may have bearing on the case. This is to say where, (2018)by virtue ofLPELR-46397(CA) statutory provision, the Court is expected to take judicial notice underSection 73 of the Evidence Act.
47 (c) On the face of the record, serious questions of the fairness of the proceedings is evident. In the instant case, the learned trial Judge had in the process of evaluating and assessing Exhibit DW2B which is the Certificate of Occupancy relied upon by the Appellants as their root of title and Exhibit PW4B which is the file containing the Appellants’ application for the grant of the said house in dispute, the Governor’s approval etc., discovered material contradictions in the dates which necessitated the trial Court to take refuge in Section 122 (1) (d) of the Evidence Act, 2011 (as amended) by taking judicial notice of the assumption of office of the President, and a state Governor. Consequently, it drew inference that the then Executive Governor (Late) Mala Kachallah whose supposed signature appeared on the exhibits would not have signed the supposed approval letter on 26th June, 2003, by which time, he was no longer the Governor of Borno State, but Gov. Modu Sheriff who was sworn in on 29th May, 2003. For that he held that the Appellants’ title is invalid,(2018) null and void. LPELR-46397(CA) The law is settled that a judge by the nature of his
48 adjudicatory functions can draw inferences from stated facts in a case and by such inferences, the judge can arrive at conclusions. It will be wrong to say that inference legitimately drawn from facts and documentary evidence in a case amount to raising an issue suo motu. Equally, where a Judge refers to a piece of legislation or rule of Court which assists him to arrive at a decision one way or the other, he cannot be queried for introducing the rule of
Court or statute suo motu. OLORUN KUNLE V. ADIGUN
(2012) 6 NWLR (PT. 1297) 407; IKENTA BEST (NIG.) LTD V. A.G.RIVERS STATE (2008) 6 NWLR (PT. 1084) 612. The learned counsel for the Appellants was wrong in his submissions on the trial Court’s taking judicial notice of the assumption of office of a Governor of a State envisaged under Section 122 (1) (d) of the Evidence Act, 2011 (as amended); when he equated the same as raising an issue suo motu. The learned trial Judge took judicial notice by virtue of Section 122 (1) (d) that assisted him in drawing inferences from stated facts to arrive at his decision that Governor(2018) Mala Kachallah LPELR-46397(CA) could not have signed Exhibit PW4B, that gave rise to Exhibit DW2B.
49 Consequently, he held that the title of the 1st Appellant in Exhibit DW2B is invalid making the purported transfer of same to the 2nd Appellant null and void, as the 1st Appellant had no title to assign to the 2nd Appellant. I therefore resolve issue No. 3 in favour of the Respondent.
From the foregoing, I hold that the appeal is unmeritorious. The same hereby fails and is accordingly dismissed. I affirm the judgment of the High Court of Borno State, Maiduguri delivered on 14th September, 2017 in suit No BOHC/MG/CV/06/2017. I award a cost of N100,000.00 in favour of the Respondent.
TANI YUSUF HASSAN, J.C.A.: I agree.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, UCHECHUKWU ONYEMENAM, JCA obliged me with the draft of the lead judgment just delivered. I agree with the reasoning leading to the conclusion that the appeal(2018) is unmeritorious LPELR-46397(CA) and should be dismissed.
I also dismiss the appeal and abide by the consequential orders contain in the lead judgment including that for cost.
50 Appearances:
M.U. Faruk, Esq. with him, A.M. Shuwa, Esq. For Appellant(s)
H. Hala, Esq. For Respondent(s)
(2018) LPELR-46397(CA)