(2017) LPELR-43315(CA)

Transcription

1 BUKA & ORS v. LAWAN CITATION: In the Court of Appeal In the Jos Judicial Division Holden at Jos ON WEDNESDAY, 2ND AUGUST, 2017 Suit No: CA/J/264/2016 UCHECHUKWU ONYEMENAM Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU ELFRIEDA OLUWAYEMISI WILLIAMS- DAWODU 1. ALHAJI ISA BUKA 2. UMAR GASHUWA 3. BABA GANA MALA Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) KAMSELEM LAWAN - Respondent(s) RATIO DECIDENDI

2 1. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court "The Appellants did not challenge in this appeal, either in their notice of appeal or in their brief of arguments, the finding of the lower Court that Alhayi Mala Ali Danhaya indeed divested his interest in the land by the registered deed of assignment, Exhibit B, in favour of Alhaji Umara Bolori. The law is that this finding is binding on the parties and on this Court and it cannot be interfered with by this Court - Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Governor of Ekiti State Vs Olayemi (2016) a NWLR (Pt 1501) 1 and Braithwaite Vs Dalhatu (2016) 23 NWLR (Pt 1528) 32."Per ABIRU, J.C.A. (Pp , Paras. F-C) - read in context 2. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in civil cases; whether a plaintiff must succeed on the strength of his case and not on the weakness of the defence "It is long settled and rather elementary now that, burden of proof in civil matters is on the party who asserts a fact and has to prove same. Standard of proof is preponderance of evidence and balance of probabilities. See the cases of KALA V POTISKUM (1998) 3 NWLR (PT. 540) P. 1, DAODU V. NNPC (1998) 2 NWLR (PT. 538) 355, ITAUMA V. AKPE-IME (2007) 7 SC (PT. 11) 24, LONGE V FBN PLC (2006) 3 NWLR (PT. 967) P. 2288, ACCELERATED EDUCATION SERVICES LTD. & ANOR V. PRINCE EKPO OKANG & ANOR (2012) LPELR-CA/C/77/2010 AND WALTER ASUQUO BONNIE V. MRS BERTY FINE AGI (2013) LPELR- CA/C/56/2011. A Plaintiff has to first prove his own case with cogent and credible evidence before the burden or onus shifts to the Defendant. He who asserts must prove. See the cases of ELIAS V. DISU (1962) 1 ALL NLR 214 and OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT. 147) P.723. Plaintiff cannot rely on the weakness of the Defendant's case except where the Defendant's case supports his. See the cases of IHEKORONYE V. HART (2000) 15 NWLR (PT. 692) 840, IMAM V. SHERIFF (2005) 4 NWLR (PT. 914) P.80, ELIAS V. OMO-BARE (1932) 2 SC P.25 and AGBI V. OGBEH (2006) 11 NWLR (PT. 990) P. 65."Per WILLIAMS-DAWODU, J.C.A. (Pp. 8-9, Paras. A-A) - read in context

3 3. EVIDENCE - PROOF OF TITLE TO LAND: Ways by which ownership/title to land may be proved; whether a plaintiff needs to prove all the five ways "It has since been settled by plethora of authorities that there are five recognized ways of establishing title to land and a Plaintiff who seeks a declaration of title to land has the burden to prove same. The five ways are hereunder listed: 1. By traditional evidence. 2. By production of documents of title 3. By acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the owner. 4. By proof of ownership of connected or adjacent land would be the true owner of the land. 5. By acts of long possession and enjoyment of the land. See the locus classicus case of IDUNDUN V. OKUMAGBA (1976) 6-9 SC 227 as well as the cases of ATANDA V. AJANI (1989) 3 NWLR (PT. 111) 512 and KYARI V. ALKALI (2001) FWLR (PT. 60) The five ways are independent and separate. Title to land may be proved by any one or more of the stated five methods. See the cases of EKPO V. ITA (1932) 11 NLR 68, DIVINE IDEAS LTD. V. UMORU (2007) LPELR-CA/A/196/2004, ADEWUYI V. ODUKWE (2005) 7 SC (PT. II) P.1 and ASHIRU v. OLUKOYA (2005) 11 NWLR (PT. 990) P. 1"Per WILLIAMS-DAWODU, J.C.A. (Pp. 9-10, Paras. A-A) - read in context 4. EVIDENCE - UNCHALLENGED/UNCONTROVERTED EVIDENCE: Duty of Court where evidence is unchallenged and uncontroverted "It is trite law that a Court of law is obligated to rely and act on unchallenged and un-contradicted evidence which is credible - Bature Vs NDIC (2016) 11 NWLR (Pt 1523) 287, Godsgift Vs State (2016) 13 NWLR (Pt 1530) 444. The reliance place by the lower Court on the oral evidence led by the Respondent and his witness to find that the Respondent proved ownership of the land in dispute cannot be faulted."per ABIRU, J.C.A. (P. 23, Paras. A-D) - read in context 5. LAND LAW - ROOT OF TITLE: Effect of successfully establishing primary root of title "The law is trite that where the Claimant's root of title is established as herein, any consequential acts following thereon can then properly qualify as acts of ownership. See the case of REGISTERED TRUSTEES OF THE DIOCESE OF ABA V. NKUME (2002) FWLR (PT. 90) 1270."Per WILLIAMS-DAWODU, J.C.A. (P. 14, Paras. C-D) - read in context

4 6. LAND LAW - POSSESSION OF LAND: Who does the law ascribe possession to where two parties claim to be in possession of a land "The task before the lower Court in this matter was to determine who between the Respondent and the Appellants led better evidence on the ownership of the shop and land in dispute - Arase Vs Arase (1981) 5 SC 33 at 35 and Davies Vs Ajibona (1994) 5 NWLR (Pt 343) 234 at 258F, Nteogwuija Vs Ikuru (1998) 10 NWLR (Pt 569) 267. Where there are two claimants to a parcel of land, declaration of ownership is made in favour of the party that proves better title - Adole Vs Gwar (2008) 11 NWLR (Pt 2099) 562."Per ABIRU, J.C.A. (P. 17, Paras. C-E) - read in context

5 7. LAND LAW - DOCUMENT OF TITLE: Whether a party who relies on document of title and fails to produce same at the trial will lose "...there is no rule of law or evidence that debars a person from giving oral evidence of a transaction of sale of land in which he participated and/or nothing prevents a Court of land from relying on such oral evidence to make a finding. This point was succinctly made by the Supreme Court in the case of in Atunrase Vs Phillips (1996) 1 NWLR (Pt 427) 637 by Ogundare, JSC at pages C-A thus: "In paragraph 4 of their Statement of Claim, the plaintiffs pleaded: 'The plaintiffs aver that the said hereditament (hereinafter referred to as the land in dispute) originally belonged to the Oloto Chieftaincy Family of Lagos, from time immemorial under native law and custom; and that the said Oloto family sold the land in dispute to one Bello Bashorun by virtue of a deed of Conveyance registered as No 66 at page 169 Volume 134 at Lagos Registry and dated 19th of January The deed of conveyance referred to therein was not produced in evidence. But evidence was led - and the trial Judge accepted the evidence of the sale by the Oloto family to Bello Bashorun. Furthermore, the recital of the said sale in Exhibit F was relied on as raising a presumption of sale under Section 130 of the Evidence Act. It is the contention of the defendants that having failed to produce in evidence the 1910 deed of conveyance from the Oloto family to Bello Bashorun, the plaintiffs' claim must be dismissed as they could not rely on any method, other than as pleaded, in proof of their title. Attractive as this argument appears to be, I regret I cannot accept it. From the pleadings it cannot be doubted that the 1st plaintiff (through whom the other plaintiffs claim title) predicated his root of title on sale by the Oloto family, the radical owners of the land in dispute, to Bello Bashorun.... The plaintiffs went on to plead a deed of conveyance from the Oloto family to Bello Bashorun. This presupposes that he is relying on the second method of proving title as laid down by this Court in Idundun Vs Okumagba... Surely, documents of title are evidence of transactions between the parties thereto such as sale, grant etc. relating to the land. It cannot, in my humble view, be the law that where a plaintiff who relies on document of title fails or is unable to produce same at the trial, he must necessarily lose. In appropriate cases where secondary evidence can be given of the contents of the document, such evidence, if sufficient and accepted by the Court, will suffice.... The plaintiffs in the instant case relied on sale and proved same to the satisfaction of the trial Court."Per ABIRU, J.C.A. (Pp , Paras. D-E) - read in context

6 ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment): The High Court of Justice of Borno State Maiduguri, by Hon. Justice H. Y. Mshelia on June 14th 2016, gave judgment to the Respondent (Plaintiff at the Court below) in all the reliefs sought wherein, the Respondent was declared the rightful holder of the right of occupancy covered by the certificate of occupancy No.BO/ The following were the reliefs sought at the Court below: 1. A declaration that the certified true copy of certificate of occupancy No. BO/4863 being issued to Alhaji Mala Danhaya dated 14th October 1981 is valid and subsisting. 2. An order to direct the Defendant to surrender the original Certificate of Occupancy No BO/4863 to the Plaintiff immediately to avoid further deceit of members of the public. 3. An order to declare the Claimant as the rightful and lawful owner of the land in dispute. 4. An order to restrain the Defendant either by themselves or through their agents, privies or whoever acting on their behalf from further trespassing upon the land of the Claimant. 5. An order to direct the 1

7 defendant jointly and severally to pay the claimant, the sum of five million naira (N5, 000, ) as general and consequential damages for trespass upon the land of the claimant. 6. Cost of this suit. The Appellant (the Defendant at the Court below), dissatisfied with the said judgment have approached this Court with their Notice of Appeal together with the three (3) Grounds of Appeal dated June 22nd Parties exchanged as required by the Rules of this Court their briefs of argument. The Appellants dated February 25th 2017 was filed on March 6th 2017, the Respondent s dated March 14th 2017 was filed March 28th 2017 to which the Appellants filed a Reply dated May 18th 2017 and filed May 24th RELIEFS BEING SOUGHT A. Allow the appeal B. Set aside the decision of the lower Court. C. Dismiss the Respondents claim in the lower Court ISSUES FOR DETERMINATION APPELLANT S SOLE ISSUE Whether the lower Court was right when it came to the conclusion that on the basis of the evidence the Respondent has established title to the land. (Grounds 1, 2 and 3) RESPONDENT'S ISSUES The 2

8 Respondent adopted the sole issue raised by the Appellant and also raised another issue as follows: Whether an original certificate of occupancy would be regarded valid and subsisting while a certified true copy to that regard was issued on the event of lost (sic) or destruction. Carefully going through the parties sets of issues, one finds that they are similar in substance and that the sole issue by the Appellants in my view and humbly will adequately, fairly and justly determine this appeal. Therefore, the sole issue by the Appellants is hereby adopted for the resolution of this appeal. SUBMISSIONS FOR THE PARTIES Mr. N. A. Dammo Esq., learned Appellants' Counsel, submitted that, the Respondent who relied on documents of title in proof of his case, failed to satisfy the Court in the five (5) ingredients expected in that regard. That, the document of title he sought to establish ownership of the land through were rejected by the Court in view of the Lands Registration Law of Borno State 1994, Section 15 thereof, for being inadmissible, leaving him with only three (3) documents, Exhibit A, the certified true copy of the 3

9 Certificate of Occupancy No. BO/ 4863 in respect of the land, Exhibit B, the deed of assignment duly registered between Alhaji Mala Ali Danhaya and Alhaji Umara Bolori and Exhibit C, the letter from the Ministry of Lands and Survey confirming the certification of Exhibit A. He argued that, with the foregoing documents admitted by the Court, the Respondent could not have established his title to the land in dispute, as the evidence before the Court showed that none of the said persons transferred title to the Respondent. In support, he cited the case oflawson V. AFANI CONTINENTAL CO. NIG. LTD. (2002) FWLR (PT. 109) p He submitted that, the Court below was wrong to have held that the Respondent established equitable title to the land in issue and to have entered Judgment in his favour. He argued that, the Respondent's alleged predecessors in title did not have the capacity to transfer or confer title on his brother, the said Alhaji Modu Lawan or any other person for that matter. There was therefore a miscarriage of justice to the Appellant, he added In conclusion, he submitted that, the Respondent having failed to prove title by his chosen 4

10 method of production of documents of title, his claim ought to have failed and cited the case of MATANMI V. DADA (2013) ALL FWLR (PT.683) P He urged in consequence that the appeal be allowed and the Judgment of the Court below set aside. In opposition, the learned Counsel for the Respondent, Mr. B. G. Mohammed Esq. submitted that, the Respondent established title to the property in dispute by all the five recognized ways of proving title to land and cited in support the cases of IDUNDUN V. OKUMAGBA (1976) 1 WMMCR 200 and MBANI V. BOSI (2005) 11 NWLR (PT. 400) 412. That, he produced and tendered documents in proof, showed acts of leasing, entering which extended over a sufficient period of time and longpossession and cited in support, the cases of AJIBOYE V. ISHOLA (2006) 11 MJSC (PT.216) P. 191 and AWARA V. ALALIBO (2003) 3 MJSC (PT ) P He argued that, none of the testimonies of the Respondent and his witnesses was impeached during cross-examination, therefore, he submitted that the Court must uphold such evidence in favour of the Respondent and cited in that regard the case of NASIR V. C.S.C. KANO STATE (2010) NWLR (PT. 1190) 5

11 253. Further contended that, the rejection of some of the documents tendered at trial would not deny him ownership of the land in dispute as he is owner in equity subject to regularization and cited the cases of NSIEGBE V. MGBEMENA (2007) 10 NWLR (PT. 1042), UGWUNZE V. ADELEKE (2008) ALL FWLR (PT.408) P.327 and BRIGGS V. CHIEF LAND OFFICER, RIVER STATE (2005) ALL FWLR (PT. 258) P He submitted that, the Court below ought not to have rejected the sales agreement documents though it eventually arrived at a just decision and cited the case of ABUBAKAR V. CHUKS (2008) 2 MJSC (PT ) P. 90. The fact that the 3rd Appellant s father had in 1993 assigned the property was in favour of the Respondent in spite of the rejection of the said documents, he added. He submitted that, the Court was not bound to attach weight to the original certificate of occupancy since the certified true copy, issued, was already in use and cited in support the case of AUTA V. IBE (2003) 11 MJSC (PT ) P. 128 and Section 146 (1) of the Evidence Act Therefore, Exhibit D had no evidential value he submitted. He argued that, from the finding at the Lands registry that 6

12 the property had been assigned to Alhaji Umara Bolori, the 3rd Appellant was fraudulent to have gone ahead to sell the same land to the 1st Appellant and cited in support the case of BURAIMOH V. AKANDE (2000) 15 NWLR (PT. 690) P.260. He urged conclusion that, this appeal be dismissed with substantial costs and the Judgment of the Court below be affirmed. THE COURT The Respondent's claim was that, he acquired the land in dispute by purchase from his brother, one Alhj. Modu Lawan, who bought from one Alhj. Baba Musami who had in turn bought from one Alhj. Umara Bolori who acquired it from the original owner one Alhj. Mala Danhaya, by registered deed of assignment dated August 4th The Appellant on the other hand, claimed to have bought the same land from the family of the original owner, Alhj. Danhaya and that he was given the original certificate of occupancy. I shall now proceed to determine the sole issue herein, which is reproduced hereunder for ease of reference having very carefully read all the briefs by the parties and the Record before this Court: Whether the lower Court was right when it came to the conclusion that on the 7

13 basis of the evidence the Respondent has established title to the land. It is long settled and rather elementary now that, burden of proof in civil matters is on the party who asserts a fact and has to prove same. Standard of proof is preponderance of evidence and balance of probabilities. See the cases of KALA V POTISKUM (1998) 3 NWLR (PT. 540) P. 1, DAODU V. NNPC (1998) 2 NWLR (PT. 538) 355, ITAUMA V. AKPE-IME (2007) 7 SC (PT. 11) 24, LONGE V FBN PLC (2006) 3 NWLR (PT. 967) P. 2288, ACCELERATED EDUCATION SERVICES LTD. & ANOR V. PRINCE EKPO OKANG & ANOR (2012) LPELR- CA/C/77/2010 AND WALTER ASUQUO BONNIE V. MRS BERTY FINE AGI (2013) LPELR- CA/C/56/2011. A Plaintiff has to first prove his own case with cogent and credible evidence before the burden or onus shifts to the Defendant. He who asserts must prove. See the cases of ELIAS V. DISU (1962) 1 ALl NLR 214 and OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT. 147) P.723. Plaintiff cannot rely on the weakness of the Defendant's case except where the Defendant's case supports his. See the cases of IHEKORONYE V. HART (2000) 15 NWLR (PT. 692) 840, IMAM V. SHERIFF (2005) 4 NWLR (PT. 914) P.80, 8

14 ELIAS V. OMO-BARE (1982) 2 SC P.25 and AGBI V. OGBEH (2006) 11 NWLR (PT. 990) P. 65. It has since been settled by plethora of authorities that there are five recognized ways of establishing title to land and a Plaintiff who seeks a declaration of title to land has the burden to prove same. The five ways are hereunder listed: 1. By traditional evidence. 2. By production of documents of title 3. By acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the owner. 4. By proof of ownership of connected or adjacent land would be the true owner of the land. 5. By acts of long possession and enjoyment of the land. See the locus classicus case of IDUNDUN V. OKUMAGBA (1976) 6-9 SC 227 as well as the cases of ATANDA V. AJANI (1989) 3 NWLR (PT. 111) 512 and KYARI V. ALKALI (2001) FWLR (PT. 60) The five ways are independent and separate. Title to land may be proved by any one or more of the stated five methods. See the cases of EKPO V. ITA (1932) 11 NLR 68, DIVINE IDEAS LTD. V. UMORU (2007) LPELR-CA/A/196/2004, ADEWUYI V. ODUKWE (2005) 7 SC (PT. II) P.1 and 9

15 ASHIRU v. OLUKOYA (2006) 11 NWLR (PT. 990) P. 1. The Court below, in its evaluation of the evidence before it found as follows on page 103 of the Record: "The Claimant in this case in addition to the viva voca evidence tendered Exhibit (sic) A, B and C. Exhibit A is a certified true copy of the original certificate issued to the original grantee of the land in dispute. Exhibit B is a Deed of Assignment duly registered between the original holder and one Alhaji Umara Bolori for the transfer of the land in dispute to the later (sic). Exhibit C is letter from Deed Registrar confirming that the holder of certificate of occupancy BO/4863 requested and obtained Exhibit A (Certified true copy of certificate of occupancy BO/48631." That finding was correct and particularly when the learned Court proceeded thus still on page 103 of the Record in its analysis and consideration: "Exhibit B was executed in 1983 by the original holder of the certificate of occupancy BO/4863. The 2nd Defendant denied Exhibit B on the ground that his father the original holder of the certificate did not tell, him that he sold the land. Can this denial without more 10

16 impeach and defeat Exhibit B? It is now more than 20 years from the date of execution of Exhibit B;.Section 162 of the Evidence Act 2011 as amended provides that facts contained in Deed which is 20 years or more shall be presumed to be sufficient proof of such facts. By this law, the content of Exhibit B, that the original holder transferred the land to Alhaji Umara Bolori is presumed true...i am not aware of any law that makes it mandatory for a man to inform his children of his transaction." The Court continued and concluded correctly in that regard in my view and humbly as follows: "...Throughout the years between the execution of Exhibit B and the death of the Assignor in 1994, there was no challenge or protest at the land registry over the transaction by the original holder. I therefore, found (sic) that Exhibit B is properly executed and registered by the Assignor. Accordingly, as at 1983, the right and interest of the original holder in the property covered by the certificate of occupancy BO/4063 has been transferred to Alhaji Umara Bolori. It follows therefore as at 1994 when the original holder died, he did not leave behind the said 11

17 land for the inheritance of his heirs." See page 104 of the Record. One could not agree more with that reasoning. The Court further found on page 104 of the Record as follows: "There is also oral evidence before the Court by all the Claimant (sic) witnesses that Alhaji Umara Bolori sold the said land to Alhaji Baba Musami who also sold same to Alhaji Modu A. Lawan. Alhaji Modu A. Lawan finally sold the land to the Claimant. These (sib) oral evidence by the Claimant on the sales agreement of the land in dispute from Alhaji Umara Bolori to him was not challenged or contradicted through cross examination by the Defendants...and same must be acted upon...therefore, the contention of the Defendants that because the written agreements were rejected in evidence as inadmissible on ground of non-registration, the claimant has failed to prove his interest in the land in dispute is wrong." It held therefore correctly in my considered view and humbly thus: "By these evidence, the Claimant has established an equitable interest in the land in dispute and such interest can only be displaced by a bona fide purchaser for value without 12

18 notice...the Defendants are not such purchasers in this case. " See page 104 of the Record. With regard to the position of the 2nd Respondent, the one who claimed to have bought the land in dispute as part of the inheritance to the 3rd Respondent and his siblings, the Court's position was as follows on page 104 of the Record: "Exhibit B, having displaced the interest of the 3rd Defendant in the land in dispute, the 2nd Defendant cannot be said to have acquired any interest in the property to enable them challenge the interest of the Claimant...and by the oral evidence before the Court, the possession has been transferred to the Claimant. The equitable interest, the Claimant has established and the possession can entitle him to the declaration of title over the land in dispute...for the above findings, the Claimant has establish (sic) his title over the land in dispute by credible evidence." From the foregoing, since by elimination based on the evidence before the Court, it concluded that the 2nd Appellant could not exercise any legal right over the property, that, the unchallenged oral evidence supported the Respondent's 13

19 claim, notwithstanding the documents in respect of the sales agreement that were rejected by the Court. Consequently, the Court was right when it held that, in equity, the Respondent was the owner of the land in dispute. At this juncture, it is important to state, as one agrees with the foregoing correct findings of the Court that, the Respondent by the unchallenged oral evidence before the Court, established his title which according to his pleading, was by sale as contained on pages 4-10 of the Record. The law is trite that where the Claimant's root of title is established as herein, any consequential acts following thereon can then properly qualify as acts of ownership. See the case of REGISTERED TRUSTEES OF THE DIOCESE OF ABA V. NKUME (2002) FWLR (PT. 90) One is able to agree with the conclusion of the Court and its position to the effect that, the Appellants should be ordered to surrender the original certificate of occupancy, particularly in the face of Exhibit C, the letter from the Deed Registrar, which confirmed the request for a certified true copy by the original owner, upon the assumed loss thereof. Therefore, the Court having 14

20 ordered that its Registrar should forward Exhibit D to the Deed Registrar in my humble opinion, was in order, to put a stop to any likelihood of further misuse or confusion that might arise therefrom. See page 105 of the Record. In the light of the foregoing, the sole issue is hereby resolved against the Appellants. In that light, this appeal fails and cannot for that reason be allowed. The Judgment of the Bornu State High Court delivered on June 14th 2016 by Hon. Justice Haruna Y. Mshelia, is accordingly hereby affirmed. UCHECHUKWU ONYEMENAM, J.C.A.: I read in draft the Judgment of my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA. His lordship has completely analyzed the sole issue on this matter and arrived at the right conclusion in disallowing the appeal. Appeal fails and is dismissed. I affirm the judgment of the High Court of Bornu State delivered on June 14, HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Elfrieda Williams-Dawodu, JCA. His Lordship has considered 15

21 and resolved the issues in contention in the appeal. I agree with the conclusion reached therein. I wish to make a few comments. This case arose from a land dispute. The land in dispute is the parcel of land known as Plot 52 Harrang/Anas Road, Maiduguri measuring approximately square meters. The parties agreed that the land in dispute originally belonged to one Alhaji Mala Ali Danhaya and was covered by a Certificate of Occupancy No BO/4863 dated the 14th of October It was the case of the Respondent that the said Alhaji Mala Ali Danhaya transferred his interest in the land to one Alhaji Umara Bolori by a regrstered deed of assignment dated the 4th of August, 1983 and that Alhaji Umara Bolori subsequenty sold the land to Alhaji Baba Musami on the 2nd of September 1991 by a Sale Agreement. It was the case of the Respondent that Alhaji Baba Musami too transferred his interest in the land to Alhaji Modu Lawan on the 19th of June, 2007 as evidenced by a Sale Agreement and that Alhaji Modu Lawan sold the land to him on the 17th of November 2007 also as evidenced by a Sale Agreement and that he went into possession of the land and deposited 16

22 building materials thereon. The Appellants denied that Alhaji Mala Ali Danhaya at any time sold the parcel of land to anyone and that any such purported sale was illegal, null and void and it was their case that the said parcel of land devolved on the heirs of Alhaji Mala Danhaya, including the third Appellant, on his death, and that the heirs sold the land to the second Appellant for N3.5 Million. It was their case that the second Appellant was put in possession of the land and has remained thereon. The task before the lower Court in this matter was to determine who between the Respondent and the Appellants led better evidence on the ownership of the shop and land in dispute - Arase Vs Arase (1981) 5 SC 33 at 35 and Davies Vs Ajibona (1994) 5 NWLR (Pt 343) 234 at 258F, Nteogwuija Vs Ikuru (1998) 10 NWLR (Pt 569) 267. Where there are two claimants to a parcel of land, declaration of ownership is made in favour of the party that proves better title - Adole Vs Gwar (2008) 11 NWLR (Pt 2099) 562. The Respondent called four witnesses in proof of his case and he tendered a certified true copy of the Certificate of Occupancy No BO/4863 dated the 14th 17

23 of October, 1981 and the registered deed of assignment dated the 4th of March, 1983 between Alhaji Bala Ali Danhaya and Alhaji Umara Bolori as Exhibits A and B. The Sale Agreements of the sale of the land by Alhaji Umara Bolori to Alhaji Baba Musami and of sale of the land by Alhaji Baba Musami to Alhaji Modu Lawan and also of the sale of the land by Alhaji Modu Lawan to the Respondent were rejected in evidence by the lower Court on the ground that they were not registered. The Appellants, on their part, called two witnesses in proof of their case and they tendered the original of the Certificate of Occupancy No BO/4863 as Exhibit D. The lower Court found that Alhaji Bala Ali Danhaya indeed divested his interest in the land by the registered deed of assignment, Exhibit B, and that there was sufficient unchallenged oral evidence confirming the subsequent sales of the land up till the sale of the land to Respondent. The lower Court found that the Respondent made out a better case of ownership of the land and it granted the claims of the Respondent. The Appellants did not challenge in this appeal, either in their notice of appeal or in their brief of 18

24 arguments, the finding of the lower Court that Alhayi Mala Ali Danhaya indeed divested his interest in the land by the registered deed of assignment, Exhibit B, in favour of Alhaji Umara Bolori. The law is that this finding is binding on the parties and on this Court and it cannot be interfered with by this Court - Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Governor of Ekiti State Vs Olayemi (2016) a NWLR (Pt 1501) 1 and Braithwaite Vs Dalhatu (2016) 23 NWLR (Pt 1528) 32. The contention of the Appellants in this appeal is that with the rejection in evidence of the Sale Agreements of the sale of the land by Alhaji Uman Bolori to Alhaji Baba Musami and of sale of the land by Alhali Baba Musami to Alhaji Modu Lawan and also of the sale of the land by Alhaji Modu Lawan to the Respondent, the Respondent failed to lead credible evidence of the devolution of title to the land to him from Alhaii Umara Bolori. This contention of the Appellant is totally misconceived and ill thought out. The unchallenged finding of the lower Court that Alhaji Mala Ali Danhaya divested his interest in the land to Alhaji Umara Bolori by Exhibit B effectively destroyed and 19

25 terminated whatever interest the Appellants pretended to have in the land in dispute. There was nothing for the heirs of Alhaji Mala Ali Danhaya, inclusive of the third Appellant, to inherit on his death and the heirs thus had nothing to sell and convey to the second Appellant. The Appellants are not claiming through Alhaji Umara Bolori and thus have no basis, no locus, for challenging the case of the Respondent that he derived his title from Alhaji Umara Bolori. It is AlhaJi Umara Bolori or his heirs, assigns and privies that can mount such a challenge. The contention of the Appellants amounts to their drinking analgesic for another person's headache. Further, there is no rule of law or evidence that debars a person from giving oral evidence of a transaction of sale of land in which he participated and/or nothing prevents a Court of land from relying on such oral evidence to make a finding. This point was succinctly made by the Supreme Court in the case of in Atunrase Vs Phillips (1996) 1 NWLR (Pt 427) 637 by Ogundare, JSC at pages C-A thus: "In paragraph 4 of their Statement of Claim, the plaintiffs pleaded: 'The plaintiffs aver 20

26 that the said hereditament (hereinafter referred to as the land in dispute) originally belonged to the Oloto Chieftaincy Family of Lagos, from time immemorial under native law and custom; and that the said Oloto family sold the land in dispute to one Bello Bashorun by virtue of a deed of Conveyance registered as No 66 at page 169 Volume 134 at Lagos Registry and dated 19th of January The deed of conveyance referred to therein was not produced in evidence. But evidence was led - and the trial Judge accepted the evidence of the sale by the Oloto family to Bello Bashorun. Furthermore, the recital of the said sale in Exhibit F was relied on as raising a presumption of sale under Section 130 of the Evidence Act. It is the contention of the defendants that having failed to produce in evidence the 1910 deed of conveyance from the Oloto family to Bello Bashorun, the plaintiffs' claim must be dismissed as they could not rely on any method, other than as pleaded, in proof of their title. Attractive as this argument appears to be, I regret I cannot accept it. From the pleadings it cannot be doubted that the 1st plaintiff (through whom the other 21

27 plaintiffs claim title) predicated his root of title on sale by the Oloto family, the radical owners of the land in dispute, to Bello Bashorun.... The plaintiffs went on to plead a deed of conveyance from the Oloto family to Bello Bashorun. This presupposes that he is relying on the second method of proving title as laid down by this Court in Idundun Vs Okumagba... Surely, documents of title are evidence of transactions between the parties thereto such as sale, grant etc. relating to the land. It cannot, in my humble view, be the law that where a plaintiff who relies on document of title fails or is unable to produce same at the trial, he must necessarily lose. In appropriate cases where secondary evidence can be given of the contents of the document, such evidence, if sufficient and accepted by the Court, will suffice.... The plaintiffs in the instant case relied on sale and proved same to the satisfaction of the trial Court." The Respondent led clear, concise and unchallenged evidence of the sale of the land by Alhaji Umara Bolori to Alhaji Baba Musami and by Alhaji Baba Musami to Alhaji Modu Lawan as well as of the sale of the land by Alhaji 22

28 Modu Lawran to him and his evidence was corroborated on all material particulars by the unchallenged of the second plaintiff witness, Bulama Mala Kachalla, the Village Head of the area of the land in dispute. It is trite law that a Court of law is obligated to rely and act on unchallenged and uncontradicted evidence which is credible - Bature Vs NDIC (2016) 11 NWLR (Pt 1523) 287, Godsgift Vs State (2016) 13 NWLR (Pt 1530) 444. The reliance place by the lower Court on the oral evidence led by the Respondent and his witness to find that the Respondent proved ownership of the land in dispute cannot be faulted. It is for these reasons and the fuller exposition of the law in the lead judgment that I too agree that this appeal lacks merit and I hereby dismiss same. I affirm the judgment of the High Court of Borno State delivered in Suit No BOHC/MG/CY/59/25 by Honorable Justice H. Y. Mshelia on the 14th of June, I award costs in the sum of N50, in favour of the Respondent. 23

29 Appearances: Mr. N.A. Dammo, Esq. For Appellant(s) B.G. Mohammed, Esq. For Respondent(s)