ABDULLAHI v. LAKISAI

CITATION: (2018) LPELR-46669(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON TUESDAY, 11TH DECEMBER, 2018Suit No: CA/K/68/2017

Before Their Lordships:

OBIETONBARA O. DANIEL-KALIO Justice, Court of AppealOLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice, Court of AppealJAMES GAMBO ABUNDAGA Justice, Court of Appeal

BetweenHAJIYA MURJANATU TSOHO ABDULLAHI - Appellant(s)

AndHAJIYA DELU HARUNA LAKISAI - Respondent(s)

RATIO DECIDENDI

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1. ACTION - CAUSE(S) OF ACTION: How the Court determines the date a cause of actionarose"Section 4 of the Limitation Law, Laws of Kaduna State Cap 89 Laws of Kaduna State1991, provides as follows:"No action shall be brought by any person to recover any land after the expiration of tenyears from the date on which the right of action accrued to him or, if it first accrued tosome other persons through whom he claims, to that person." To determine the date onwhich the right of action accrued, it is settled law that the Court examines theoriginating process, statement of claim, together with the evidence on record wherethat has taken place, to know when the wrong in question occurred and compares itwith the date the originating process was filed in Court. See Asaboro v Pan Ocean OilCorporation (Nigeria) Ltd (2017) 7 NWLR Part1563 Page 42 at 68 Para A per Peter-Odili JSC; Woherem v Emereuwa (2004) 13 NWLRPart 890 Page 398; Akibu v Azeez (2003) 5 NWLR Part 814 Page 643. It is true, assubmitted by learned Appellant's Counsel, that in determining limitation, one is confinedto the Plaintiff's pleadings, without recourse to the Statement of Defence, deposition onoath of the Defendant's witness or any other document or process. See Mulima v Usman(2014) 16 NWLR Part 1432 Page 160 at 199 Para A-B per Okoro JSC; at 208 Para B-C perRhodes-Vivour JSC. Where, however, the matter has gone to trial and evidence taken,the lower Court will determine from the evidence given when the cause of actionaccrued and will compare it with the date the originating process was filed in Court. SeeAsaboro v Pan Ocean Oil Corporation (Nigeria) Ltd Supra..." Per ADEFOPE-OKOJIE, J.C.A.(Pp. 9-10, Paras. E-D) - read in context

2. COURT - POWER OF COURT: Power of the Court of Appeal as provided for underSection 15 of the Court of Appeal Act"... This Court is empowered by Section 15 of the Court of Appeal Act 2004 to make anyorder which the trial Court should have made. See Egbuchu vs Continental MerchantBank Plc (2016) 8 NWLR Part 1513 Page 192 at 209 Para C - D per Kekere-Ekun JSC."PerADEFOPE-OKOJIE, J.C.A. (P. 33, Para. A) - read in context

3. EVIDENCE - PROOF OF TITLE TO LAND: Ways by which ownership/title to land maybe proved; whether a plaintiff needs to prove all the five ways"It is settled that there are five ways to which ownership of land may be proved:1. By traditional evidence;2. By production of documents of title which must be duly authenticated in the sensethat their due execution must be proved;3. Acts of ownership extending over a sufficient length of time and numerous andpositive enough to warrant the inference that the person is the true owner;4. Acts of long possession and enjoyment of land which may be prima facie evidence ofownership of the particular piece or parcel of land or quantity of land;5. Proof of possession of connected or adjacent land in circumstances rendering itprobable that the owner of such connected or adjacent land, would in addition be theowner of the land in dispute.See Idundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45per Fatayi-Williams JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330Para H-A per Peter-Odili JSC; Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561 Page224 at 264-265 Para H-C per Galinje JSC; Addah v. Ubandawaki (2015) 7 NWLR Part1458 Page 325 at 343-344 Para C-A; (2015) All FWLR Part 775 Page 200 at 211 Para C-GperFabiyi JSC; Ajiboye v. Ishola (2006) 13 NWLR Part 998 Page 628 per Onnoghen JSC (ashe then was).All modes of proof of title are independent and none is superior to theother. It is sufficient if only one of the ways is proved. See Onovo v. Mba (2014) 14NWLR Part 1427 Page 391 at 420-421 Para F-D per Ogunbiyi JSC; Owhonda v. Ekpechi(2003) 17 NWLR Part 849 Page 326 at 354 Para A-B; 367 Para D-F per Musdapher JSC(as he then was)."Per ADEFOPE-OKOJIE, J.C.A. (Pp. 18-19, Paras. A-B) - read in context

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4. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Burden of proof in land matters"... both parties claim title to the land. The burden thus rests on both of them to provetheir various titles. In so doing, the law is that they cannot rest on the weakness of theother party but must prove their claim on the balance of probabilities, to see on whichside the evidence preponderates - Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561Page 224 at 264 Para D-H per Galinje JSC; Momoh v. Umoru (2011) 15 NWLR Part 1270Page 217 at 281 Para C per Adekeye JSC; Adeleke v. Iyanda (2001) 13 NWLR Part 729Page 1 at 21-22 Para H-D per Uwaifo JSC."Per ADEFOPE-OKOJIE, J.C.A. (P. 25, Paras. A-C)- read in context

5. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Requirements of the law fortraditional evidence to be satisfactorily proved"For traditional evidence to be satisfactorily proved, the following must be present:1. Who founded the land;2. How he founded it; and3. The persons on whom the land devolved from its founder to the Plaintiff.The pleading of the devolution as well as the evidence in support must be reliable andcredible, with no missing link, otherwise the claim for title will fail. See Awodi v. Ajagbe(2015) 3 NWLR Part 1447 Page 578 at 613 Para B-E; (2015) All FWLR Part 769 Page1129 at 1155 Para E-H per Ngwuta JSC; Anyafulu v. Meka (2014) 7 NWLR Part 1406 Page396 at 411 Para D-F per Aka'ahs JSC; Addah v. Ubandawaki (2015) 7 NWLR Part 1458Page 325 at 344 Para C-E; (2015) All FWLR Part 775 Page 200 at 212 Para B-C per FabiyiJSC."Per ADEFOPE-OKOJIE, J.C.A. (Pp. 25-26, Paras. F-C) - read in context

6. EVIDENCE - DOCUMENTARY EVIDENCE: Effect of the failure of a party to object tothe reception of a document in evidence when it is being tendered"The Appellant has also tendered a sales agreement in proof of the sale to him by hispredecessor in title. The Respondent's Counsel has complained that it is inadmissible asit is a photocopy. The proceedings of the Court, prior to tendering the receipt, at Page140 of the Record was:"PW1: A receipt was issued to me after purchasing it. I can identify this receipt throughmy signature. This is the receipt. The original is with the people I bought for.Adedokun: We seek to tender it and its English translation.U. U. Buhari: No objection.Court: Admitted as Exhibit 1 and 1A respectively."As is clear from the proceedings, there was no objection from Counsel, in consequenceof which it was received by the Court. This is not a document requiring a certified copyand no other evidence, as contemplated in Section 91(1)(c) of the Evidence 2011, but isa private document. As held by this Court in the case of Isitor v Fakarode (2008) 1 NWLRPart 1069 Page 602 at 626, Para E-F per Jega JCA (of blessed memory), what is requiredis an explanation to the satisfaction of the Court to enable the admissibility of secondaryevidence and not a justification. Putting a finality on this contention by Counsel, theSupreme Court in the recent decision ofAnagbado v Faruk (2018) LPELR-44909(SC) held,per Sanusi JSC at Page 16 Para D-F, that:"The law is trite and well settled too, that if party fails to raise objection to theadmissibility of a document tendered by an opposite party, the person/party who fails toobject to the admission of such document, cannot later raise the issue of admission ofthe document by the trial Court at the appellate Court. See Alade vs Olukade (1976) 2SC 183 at 119; Raimi v Akintoye (1986) 3 NWLR (Pt. 26) 97. The doctrine of estopped byconduct is even applicable on that."The Respondent, having waived any objection to this document, cannot be heard toimpugn the same, I hold. This document shall thus be given the weight it deserves." PerADEFOPE-OKOJIE, J.C.A. (Pp. 26-28, Paras. D-B) - read in context

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7. EVIDENCE - ADMISSIBILITY OF UNREGISTERED REGISTRABLE INSTRUMENT:Whether a registrable instrument that has not been registered is admissible to proveequitable interest"It is correct, as contended by the Respondent's Counsel, that the sales agreementrelied upon by the Respondent, being an instrument affecting and transferring rights totitle and interest in land, was not registered as required by Section 15 of the LandInstrument Registration Law of Kaduna State. It has however been held in the caseofAgboola v United Bank for Africa Plc (2011) 11 NWLR Part 1258 Page 375 at 415 ParaF-H per Adekeye JSC, that a purchaser of land who has paid and taken possession of theland by virtue of a registrable instrument which has not been registered, acquires anequitable interest which is as good as a legal estate. Such equitable interest can only bedefeated bya purchaser for value without notice of the prior equity. See also Dauda v. Bamidele(2000) 9 NWLR Part 671 Page 199 at 211 Para F-G per Mangaji JCA; Nsiegbe v.Mgbemena (1996) 1 NWLR Part 426 Page 607 at 622 Para B-E per Edozie JCA (as hethen was). Again putting a finality to this question is the decision of the Supreme Courtin the case of Anagbado v Faruk Supra per Eko JSC at Pages 31-33, Paras. E-C where heheld as follows:"The Appellant had made an issue of whether Exhibit P2, the letter of offer issued to theRespondent, was a registrable document which must be previously registered under theKaduna State Lands Registration Law Cap 85 Laws of Kaduna State, 1991 before itwould be admissible in evidence. Section 15 of the said Law, Cap, 85, provides:"No instruments shall be pleaded or given in evidence in any Court as affecting any landunless the same shall have been registered in the proper office as specified in Section3."The purport of this law, as argued by the Appellant, is that a registrable land instrument,which though is a material and relevant piece of evidence under the Evidence Act, 2011which has not been so registered under the Law Cap 85 is not admissible in evidence inany Court of Law. The argument neither impresses nor convinces me. The Law Cap. 85of Kaduna State (Section 15 thereof), in so far as it purports to render inadmissible anymaterial and relevant piece of evidence that is admissible in evidence under theEvidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by theNational Assembly pursuant to the powers vested in it by Section 4(2) of theConstitution and Item 23 of the Exclusive Legislative List set out in Part I of the SecondSchedule to the Constitution. Evidence is Item 23 in the Exclusive Legislative List. I amof the firm view that, in view of Section 4(5) of the Constitution read with Section 4(2)and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule tothe Constitution, in the event of Section 15 of the Law Cap. 85 of Kaduna State being inconflict or inconsistent with any provisions of the Evidence Act, the provisions of theEvidence Act shall prevail. The sum total of all I am saying, on this issue, is that Section15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 whichevidence is material, relevant and admissible in evidence under the Evidence Act, 2011.A piece of evidence admissible in evidence under the Evidence Act cannot be renderedinadmissible in evidence by any law enacted by the House of Assembly of any State."Underlining mine It is therefore clear that Exhibit A and A1 were rightly admitted by thetrial Court and are admissible in proof of title of the deceased. The equitable interestacquired by the Appellant, who by the evidence of her witnesses, had taken overpossession of the land, is as good as a legal estate, I hold, which can only be defeatedby a purchaser for value without notice of the prior equity. See Agboola v UBASupra."Per ADEFOPE-OKOJIE, J.C.A. (Pp. 28-31, Paras. C-D) - read in context

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OLUDOTUN ADEBOLA ADEFOPE- OKOJIE,

J.C.A.(Delivering the Leading Judgment): This suit was

instituted in a representative capacity by Alhaji Ayuba

Tsoho Abdullahi before the High Court of Kaduna State,

sitting in Zaria, for and on behalf of the heirs of Late Tsoho

Abdullahi, his younger brother. Upon Ayuba Tsoho’s death,

the present Appellant, a biological daughter of Late Tsoho

Abdullahi, was substituted in his stead, as representing the

other heirs of Tsoho Abdullahi, hereafter referred to as “the

deceased” .

The suit was in respect of a piece of land purchased by the

deceased, measuring 1.03 Acres (0.417 Hectares), with

stated dimensions, at an area called Tukur-Tukur under

Zaria Local Government Area of Kaduna State.

The case of the Appellant, as Plaintiff before the lower

Court, is that during the life-time of the deceased, the

Respondent attempted to trespass on the land but was

repelled by the deceased. Shortly after his death, taking

advantage of the young age of his heirs, again trespassed

on the land, causing the institution of a case of criminal

trespass against her before the Sharia Court in Zaria.

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The Respondent, to frustrate the case, instituted a suit

before the High Court, seeking an order of Certiorari to

quash the suit on the ground that the Sharia Court had no

jurisdiction to adjudicate on the land, being in an urban

area. The application was granted and the suit quashed.

The present suit was thence instituted in which the

following reliefs were sought:

1. A declaration that the Plaintiff is the owner of the

land situate lying in the area known as Tukur-Tukur,

Zaria Local Government Area of Kaduna State and it

bounded as follows:

i. In North – the land is bounded by the farm of

Babajo;

ii. East – bounded by farm of Mallam Zubairu.

iii. South – bounded by the farm land of Mallam

Yakubu Tanko, and in the West it is bounded by the

famous Traditional wall of Tukur-Tukur and a bush,

all measuring 1.03 Acre or 0.417 Hectares.

2. A perpetual injunction restraining the defendant

whether by herself, her servants, agents and/or

privies from entering into the piece of land afore

described in paragraph 1 above or dealing with it in

any manner that may be detrimental to the interest of

the Plaintiff.

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3. N500,000 General Damages against the defendant

for act of trespass on the land afore mentioned.

Two witnesses testified for the Appellant and a receipt of

purchase was tendered.

Opposing the claim, the Respondent filed a Statement of

Defence, in which she averred that the land in dispute

measured 0.422 Hectares (1.042778 acres). It was her case

that the land originally belonged to one Abubakar Musa,

who sold the same to her husband, Alhaji Haruna Lakasai,

now deceased, on 7/6/89. On his death, she inherited the

land. Both she and her husband, in his life-time, have been

loaning the land out for farming. She denied that she was

ever challenged on the land by the deceased’s brother. She

also denied encroachment, as the land is hers. She pleaded

a Zaria Local Government Certificate of Occupancy issued

to her husband and a Sale Agreement between Abubakar

Musa and her husband.

She counter-claimed for the following:

14. Whereof, the Defendant claims against the

Plaintiff as follows:

a) A declaration that the Defendant is the owner of

the land situated and lying in the area known as

“Gidan

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Ganye” Tukur-Tukur Zaria in Zaria Local Government

covered by Zaria Local Government Area Certificate of

Occupancy No. ZAK/A/06637.

b) A perpetual injunction restraining the Plaintiff

either by himself, agents, servants, privies, assigns or

whomsoever acting or claiming on behalf of the

plaintiff from entering or in any way dealing with the

land described above.

c) An order dismissing the Plaintiff‟s claim.

d) N500,000 of general damages against the plaintiff.

e) Cost of this action.

Three witnesses testified in proof of her claim

On conclusion of trial and exchange of written addresses,

the trial Court, in a judgment delivered on 30/9/14,

dismissed the Appellant’s case for lack of jurisdiction, on

the ground that the suit was statute barred. It entered

judgment for the Respondent in terms of her Counter-

Claim.

Aggrieved, the Appellant appealed to this Court by Notice

of Appeal filed on 17/10/14. The Appellant’s Brief, filed on

16/3/17, was settled by Dr. K.A. Adedokun of K.A.

Adedokun & Co., in which 4 issues were formulated, to wit:

1. Whether the learned trial judge rightly declared

the plaintiff’s action as statute barred.

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2. Considering the pleading and evidence led thereto

by the defendant, whether the learned trial Court

rightly entered judgment for the defendant as per her

counter-claim.

3. Whether the failure of the learned trial judge to

consider the plaintiff’s “reply on point of law” to the

respondent’s new issues of law in her final written

address occasioned a miscarriage of justice.

4. Whether considering the strength of the pleading

and evidence led by the Appellant she has established

and proved her case on preponderance of evidence.

On behalf of the Respondent, A.Y. Musa Esq. of A.Y. Musa

& Co filed a Respondent’s Brief on 6/2/18, in which a sole

issue for determination was formulated, to wit:

The 1st issue for determination is:

Whether the Appellant has proved title to the land

claimed vide purchase to warrant the declaration of

title to her.

The sole issue for determination formulated by the

Respondent is the same as the Appellant’s 2nd issue. I shall

adopt as the issues that arise for determination in this

appeal, the 1st, 2nd and 4th issues distilled by the

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Appellant, slightly amended for clarity.

The 1st issue for determination is:

Whether the learned trial judge rightly declared the

Appellant’s action as statute barred.

Arguing this issue, learned Appellant’s Counsel has

submitted that the determining factor on whether an action

is statute-barred or not is the averment in the plaintiff’s

writ of summons and statement of claim, in view of several

authorities that the period of limitation is determined by

looking at the Statement of Claim to ascertain the date the

alleged wrong took place and comparing this with the date

the action was instituted. He cited the case of Egbe vs

Adefarasin (1987) 1 NWLR (Part 47); and Goodwill

Co. Ltd vs Calabar Cament Co. Ltd. (2010) ALL FWLR

(Part 544) 34 @ 48 Paras E-F; Woherem vs Emereuwa

(2004) 13 NWLR (Part 890); Eboigbe v NNPC (1994) 5

NWLR Part 347 Page 649. He submitted that a cause of

action cannot be computed from the Statement of Defence

or Defendant’s witness deposition on oath. The lower Court

was thus in error to have relied on the deposition on oath of

DW2 to make a finding that the Appellant’s action was

statute barred.

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Pointing out the date the cause of action arose from the

Statement of Claim and the date of institution of the action,

he submitted that the action was filed within the time

stipulated in Section 4 of the Limitation Law of Kaduna

State. He pointed out discrepancies in the date the cause of

action allegedly arose in the witness statement on oath of

DW2 and the erroneous finding of the Court based thereon.

Learned Counsel further contended that Order 17 Rule 7(2)

of the Kaduna State Civil Procedure Rules, 2007, mandates

the Respondent to specifically plead Limitation Law to be

able to be availed of the same, which was not done.

Learned Counsel to the Respondent submitted that the

lower Court rightly declared the Appellant’s case statute

barred as the Respondent and her husband had been in

possession of the land for over 10 years.

Citing the case of Nasir vs CSC Kano (2010) Vol.2 MJSC

Page 1 @ 24 Paras D-E, he submitted that the issue of

limitation is a question of jurisdiction and competence of

the Court that can be raised at any time. Also citing Orders

17 Rule 8 and Order 5 Rule 1(2) of the Kaduna State (Civil

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Procedure) Rules Supra, he submitted that the failure to

plead the Limitation Law is a mere irregularity which ought

not to nullify a proceeding.

The lower Court, on the issue of statute bar, held:

“This action is instituted by the Plaintiff on 3rd day of

April, 2007. From the evidence of the Defendant and

her witnesses (sic). The evidence of DW2 shows that

he was on the land since 1987 and the Plaintiffs have

done nothing until 2007 a period of 20 years.

A plea that an action is statute barred is one which

raises the issue of jurisdiction. See Adekoya v

FHA (2008) 11 NWLR (1099) 539.

Issue of jurisdiction can be raised at any stage of the

proceedings even before the Supreme Court. A careful

look at the writ and statement of claim shows that the

Plaintiff took up the writ of action 20 years after its

acquiring.

When an action is statute barred, the Plaintiff who

might have had a cause of action loses the right to

enforce the cause of action by judicial process

because the period of limitation had elapsed. The

action is not maintainable i.e. when a statute of

limitation prescribes a period within which an action

must be

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initiated legal proceedings cannot be properly and

validly instituted after the expiration of the

prescribed period. See Hassan vs Aliyu (2010) 17

NWLR (1223) 547.

The Plaintiff in this action has lost the right to

enforce his cause of action by judicial process

because the time for instituting such an action has

lapsed. See Odubeko vs Fowler (1993) 7 NWLR 308)

637.”

Section 4 of the Limitation Law, Laws of Kaduna State Cap

89 Laws of Kaduna State 1991, provides as follows:

“No action shall be brought by any person to recover

any land after the expiration of ten years from the

date on which the right of action accrued to him or, if

it first accrued to some other persons through whom

he claims, to that person.”

To determine the date on which the right of action accrued,

it is settled law that the Court examines the originating

process, statement of claim, together with the evidence on

record where that has taken place, to know when the

wrong in question occurred and compares it with the date

the originating process was filed in Court. See Asaboro v

Pan Ocean Oil Corporation (Nigeria) Ltd (2017) 7

NWLR Part

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1563 Page 42 at 68 Para A per Peter-Odili JSC;

Woherem v Emereuwa (2004) 13 NWLR Part 890 Page

398; Akibu v Azeez (2003) 5 NWLR Part 814 Page

643.

It is true, as submitted by learned Appellant’s Counsel, that

in determining limitation, one is confined to the Plaintiff’s

pleadings, without recourse to the Statement of Defence,

deposition on oath of the Defendant’s witness or any other

document or process. See Mulima v Usman (2014) 16

NWLR Part 1432 Page 160 at 199 Para A-B per Okoro

JSC; at 208 Para B-C per Rhodes-Vivour JSC.

Where, however, the matter has gone to trial and evidence

taken, the lower Court will determine from the evidence

given when the cause of action accrued and will compare it

with the date the originating process was filed in Court.

See Asaboro v Pan Ocean Oil Corporation (Nigeria)

Ltd Supra.

In the instant case, the pleading of the Appellant in

Paragraphs 9 and 10 of the Statement of Claim, at Page 28

of the Record, is as follows:

9. The Plaintiff pleads further that during the lifetime

of his younger brother, the defendant attempted

trespassing into the land in dispute but the deceased

resisted same; but shortly after his

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younger brother‟s demise, the defendant rekindled

her attempt knowing that some of the heirs of his

deceased brother are minors and the only adult one is

abroad.

10. The Plaintiff avers that on noticing the

defendant‟s move, he instituted a case before Sharia

Court No. 1, Zaria City in the criminal Case No.

SC1/ZC/144C/002/05 between the Plaintiff (as the

complainant thereat) and the defendant (as the

Accused thereat) for criminal trespass contrary to

Section 180 of the Sharia Penal Code of Kaduna

State.

Joining issues, the Respondent averred in Paragraph 12 of

the Statement of Defence, at Pages 44-45 of the Record, as

follows:

12. In answer to paragraphs 10 and 11 of the

Plaintif's statement of claim the Defendant avers that

the Plaintiff took her to the said Sharia Court of Zaria

city in the guise of criminal trespass and the case has

not even reached defence stage when she realizes

that the said Sharia Court has no jurisdiction and

what the Plaintiff sought is declaration of title and

the High Court No. 3 Zaria quashed the whole

proceeding for absence of jurisdiction and for the

breach of fair hearing among others.

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It is thus clear from the Statement of Claim and Statement

of Defence that the action leading to the institution of the

action for criminal trespass before the Sharia Court took

place in 2005. There is no contrary date indicated by the

Respondent in her Statement of Defence, I note.

The trial Judge, in determining the date the cause of action

accrued relied on the deposition of DW2 and held:

“The evidence of DW2 shows that he was on the land

since 1987 and the Plaintiffs have done nothing until

2007 a period of 20 years”

The witness statement of this witness, Alhaji Isah

Abdullahi, is at Page 101 of the Record, where he deposed,

in Paragraph 5, as follows:

5. That I sought for a land from the defendant’s

deceased husband on loan and he gave me the land in

dispute wherein I farmed/cultivated for 9 years until

1991 when the defendant’s husband died and his

estate was to be shared whereupon I was called upon

to and I surrendered same to the family.

The Appellant’s Counsel has contended that it is not

possible for this witness to have been loaned the land for

cultivation by the husband of the Respondent for 9 years

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“until 1991” when he surrendered it, as from Paragraph 5

of the Statement of Defence and the deposition of the

Respondent, the land was purchased by her husband in

1989. As calculated by the Appellant’s Counsel, nine years

from 1991 is 1982. How is it possible, he asked, and I agree

with him, for land to be loaned to DW2 by the Respondent’s

husband seven years before he purchased it? This is clearly

anomalous, I hold, and cannot by any stretch of imagination

be relied upon as the basis of computing the date the cause

of action arose.

Indeed one wonders where the lower Court got the date

“1987” as the date of accrual of cause of action.

Furthermore, and as rightly submitted by the Appellant’s

Counsel, incidents showing ownership and possession of

land must be pleaded. In the absence of pleading of this

fact, the same cannot be surreptitiously introduced in a

witness statement.

The lower Court was thus in patent error, I hold, to rely on

a date which was not pleaded by the defence as a date the

cause of action accrued and which date was patently false,

rather than to rely on the date pleaded in the

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Statement of Claim and which date was conceded by the

Respondent.

From the state of the pleadings of both parties, the cause of

action accrued in 2005, which was the year the Appellant’s

representative, on observing the trespass, instituted the

case of criminal trespass against the Respondent.

A simple subtraction of 2005, when the cause of action

arose, from 2007, when the Writ of Summons was filed,

shows that the suit was instituted well within the time

stipulated in the Limitation Law Supra.

The trial Judge, I accordingly hold, was in clear error to

have declared the Appellant’s suit as statute barred.

I resolve the 1st issue for determination in favour of the

Appellant.

I shall take the 2nd and 3rd issues for determination

together, namely:

2nd Issue

Considering the pleading and evidence led thereon by

the Respondent, whether the learned trial Court

rightly entered judgment for the Respondent as per

her counter-claim.

3rd issue

Whether, considering the strength of the pleading

and evidence led by the Appellant, she has

es tab l i shed and proved her case on the

preponderance of evidence.

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On the 2nd issue, the learned Counsel to the Appellant has

submitted that it is incumbent on the Respondent to place

before the trial Court convincing, credible and cogent

evidence to prove her counter claim as provided for under

Section 134 of the Evidence Act 2011. Even though the

Appellant did not file a defence to the counter claim of the

Respondent, all issues raised with regard to the counter

claim were met in the Appellant’s pleading. Judgment could

not therefore have been entered for the Respondent on the

Counter-Claim without considering evidence led in respect

of the facts pleaded by the Appellant. In addition, this does

not take away the onus placed on the Counter Claimant to

prove her case. He cited the cases of Dabup vs Kolo

(1993) 9 NWLR (Part 317) 254 at 270, 281 and

Ogbonna vs A.G. Imo State (1992) 1 NWLR (Part 220)

647.

Learned Counsel further submitted that for the

Respondent’s Counter- Claim to succeed, based on title to

land, she had to prove her case in any of the modes

stipulated inIdundun vs Okumagba and Adda vs Jassen

(2004) ALL FWLR (Part 230) 1011 @ 1014.

He also pointed to the evidence of PW2 that the land

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being claimed by the Appellant is different from the one

being claimed by the Respondent. He urged the Court to

take note of the fact that the Zaria Local Government

Council C of O No ZAK/A/06637 pleaded was not tendered

by the Respondent, submitting that the Respondent did not

lead sufficient and cogent evidence in proof of title to the

land in dispute. The Respondent, he said, could not even

identify the land she was claiming, neither could she or her

witnesses establish how her husband’s vendor, Malam

Abubakar Musa, came to have title vested in him, instead

attempting to rely on long possession. He cited the cases of

Mogaji vs Cadbury Nig Ltd (1985)2 NWLR (Part 7)

393 @ 395 and Anukam vs Anukam (2008) ALL FWLR

(Part 413) 1255 @ 1270 Paras E-F.

Arguing the 3rd issue for determination, the learned

Appellant’s Counsel submitted that when a party seeks any

declaratory relief from the Court such a party must show

and lead cogent and convincing evidence to warrant the

grant of the relief sought, which the Appellant has

successfully done. He pointed to the Sale Agreement,

Exhibit 1 and 1A, submitting that the testimony of PW1 and

PW2 were not

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discredited under cross-examination, thereby discharging

the onus placed on them by tracing the Appellant’s root of

title and by preponderance of evidence.

The Respondent’s Counsel submitted that the Appellant

failed to prove their case and that the Court rightly

dismissed it. A plethora of authorities abound, he said, on

what a claimant of land who traces his title to purchase

must establish, citing the cases of Idundun vs Okumagba

(1976) 9 & 10 SC 277 @ 246-250 and Alli vs

Alesinloye (2000) 4 SC (Part 1) Page 111 @ 125 lines

1-25.

Learned Counsel contended further that the Appellant

tendered a photocopy of a purported sales agreement in

proof of his title without compliance with the provision as

to tendering of secondary evidence, citing Section 89 (1) of

the Evidence Act, 2011 Cap E14 LFN. Exhibit A, being a

photocopy is ab initio inadmissible being a registerable but

unregistered document and ought not to have been

admitted in evidence in the first place, citing Section 15 of

the Kaduna State Land Instrument Registration Law Cap.

85 Laws of Kaduna State 1991 and Section 2 of the same

law.

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It is settled that there are five ways to which

ownership of land may be proved:

1. By traditional evidence;

2. By production of documents of title which must be

duly authenticated in the sense that their due

execution must be proved;

3. Acts of ownership extending over a sufficient

length of time and numerous and positive enough to

warrant the inference that the person is the true

owner;

4. Acts of long possession and enjoyment of land

which may be prima facie evidence of ownership of

the particular piece or parcel of land or quantity of

land;

5. Proof of possession of connected or adjacent land

in circumstances rendering it probable that the owner

of such connected or adjacent land, would in addition

be the owner of the land in dispute.

See Idundun v. Okumagba (1976) 10 NSCC Page 445

at 453 Line 42; Page 457 Line 45 per Fatayi-Williams

JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page

290 at 329-330 Para H-A per Peter-Odili JSC; Orianzi

v. A/G Rivers State (2017) 6 NWLR Part 1561 Page

224 at 264-265 Para H-C per Galinje JSC; Addah v.

Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at

343-344 Para C-A; (2015) All FWLR Part 775 Page

200 at 211 Para C-G per

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Fabiyi JSC; Ajiboye v. Ishola (2006) 13 NWLR Part 998

Page 628 per Onnoghen JSC (as he then was).

All modes of proof of title are independent and none is

superior to the other. It is sufficient if only one of the ways

is proved. See Onovo v. Mba (2014) 14 NWLR Part

1427 Page 391 at 420-421 Para F-D per Ogunbiyi JSC;

Owhonda v. Ekpechi (2003) 17 NWLR Part 849 Page

326 at 354 Para A-B; 367 Para D-F per Musdapher

JSC (as he then was).

The witnesses in this case testified by adoption of their

Witness Statements and were subsequently cross examined

by opposing Counsel.

In proof of the title of the deceased Alhaji Dogara Wuciciri,

testifying as PW1, described the boundaries of the land in

dispute with its boundaries as follows:

“East – The farm of Mallam Zubairu

West Ganuwan (i.e. Tukur-Tukur famous traditional wall an

bush).

North – Babajo’s farm.

South – Mallam Yakubu Tanko’s farmland.”

Further deposing to incidents of ownership, he gave the

history of the land, tracing the same from the grandfather

of one Dan Isa, the Senior Brother to the Emir of Zazzau,

which

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grandfather “first cleared and settled on the land”. Dan Isa

inherited the land from his father and in turn sold to

Gambo Lemu. It was he (PW1) that negotiated the purchase

price between Gambo Lemu and the deceased Tsoho

Abdullahi and also witnessed the Sale Agreement. His

further evidence is that he was “physically present when

late Tsoho Abdullahi took over possession of the land in

dispute.” He also “knows as a fact that the Late Tsoho

Abdullahi bought the land in dispute over 20 years

ago for the sum of N6,000.00 and the land is over one

acre”.

The witness tendered, without objection, the photocopy of a

Sales Agreement made on 10/7/83 from Gambo Lemu to

Alhaji Tsoho Abdullahi. The Hausa and English translations

were received in evidence as Exhibits 1 and 1A

respectively.

Under cross examination, he stated that he signed the

purchase agreement though he cannot recognize his

signature. He also knows both Dan Isa, the brother of the

Emir of Zazzau, and Gambo Lemu, though he was not a

witness to the sale between Gambo Lemu and Dan Isa. He

was however informed of the transaction. He reiterated

that

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he negotiated for the purchase of the land. He also

reiterated the boundaries as stated in his witness

statement.

The 2nd witness for the Appellant is Mallam Muktar

Samaila, PW2. He stated the same boundaries as PW1. He

confirmed that the land belongs to late Tsoho Abdullahi and

that he purchased the same from Gambo Lemu, now

deceased. Before Gambo Lemu sold the disputed land to

the Appellant, his (PW2) grandfather used to farm on the

land and he would accompany him. On the death of his

grandfather, the land reverted to Gambo Lemu who sold

the land to the deceased Tsoho Abdullahi, through PW1.

The land was given to him by the deceased to farm on since

1986. He stated further that the land of the Respondent’s

late husband is not the same as that of the deceased though

it is close to it.

The witness also stated that the land bought by the

Respondent’s husband was being farmed by the late

Mallam Isa, the Sankira of Tukur Tukur, before the land

was then sold to the Respondent’s husband. When the

Respondent trespassed on to the land of the deceased, the

late Sarki Tukura of Anguwan Bisa, Tukur Tukur, under

whose keep the

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land was, informed the Respondent that the disputed land

was not owned by the Respondent’s husband.

Under a brief cross-examination, the witness reiterated:

“The land being claimed by the Plaintiff is different

from the one being claimed by the Defendant. I don‟t

know the person who succeeded Isa Sankira.”

He was not cross-examined on his affirmation of the

ownership of the land in dispute by the Appellant and the

fact that the Respondent’s land is different from the land in

dispute.

The deposition of the Respondent, who testified as PW1 is

that the land in dispute measures 0.422 hectares (1.042778

acres), as described in a sketch plan attached to Zaria

Local Government Certificate of Occupancy No.

ZAK/A/06637, which land was sold to her husband by

Abubakar Musa on 7/6/89. She inherited the land following

the death of her husband in 1991. When the land devolved

to her, she used to give it out on loan to people for farming

purposes. Under cross examination, she agreed that she

was not present when her husband bought the land. She

however does not know how her husband’s vendor came to

own the land. She

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further stated “I cannot say the boundaries of the land

when we go there I can show you”.

DW2 and DW3 are persons to whom the land was allegedly

given on loan. I shall however, set no store by the evidence

of DW2 for the reasons given above by me under the

determination of issue no. 1, as this witness was clearly

untruthful in stating that the land was given to him to farm

by the Respondent’s husband nine years before 1991, viz

1982, when the evidence of the Respondent is that her

husband only purchased the land in 1989.

With regard to DW3, Muhammad Bello Isa, his deposition is

that sometime in 2001, the Respondent loaned the land to

his father and that both he and his father farmed on it for

four years from 2001 to 2004. They used to pay “gallah”

(tribute) to the Respondent. He will identify the land if

called upon to do so. Under cross examination, both DW2

and DW3 said they were not there when the Respondent’s

husband bought the land and don’t know how he got the

land.

The lower Court, following his dismissal of the Appellant’s

case for being statute barred, in a couple of paragraphs

held:

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“The Defendant has led evidence to show that

together with her late husband, before she inherited

him, to inheriting him(sic) have been on the land for

20 years before the Plaintiff instituted this action. All

these years they were in possession giving it out on

loan and Galla being paid to them.”

I hold that the counter-claim of the defendant

succeeds. Judgment is hereby entered for the

Defendant against the Plaintiff. It is ordered as

follows:

1. The Defendant is the owner of the land situate and

lying in the area known as "Gidan Ganye" Tukur-

Tukur, Zaria in Zaria Local Government covered by

Zaria Local Government Area Certificate of

Occupancy No. ZAK/A/06637.

2. A perpetual injunction restraining the Plaintiff

either by herself, agents, servants, privies, assigns or

whomsoever acting or claiming on behalf of the

Plaintiff from entering or in any way dealing with the

land described above.

3. The Plaintiff’s claim is hereby dismissed.

4. N500,000.00k damages to the Defendant to be paid

by the Plaintiff.

5. Cost of fling this action to be assessed by the

Registrar of this Court.

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As aforesaid, both parties claim title to the land. The

burden thus rests on both of them to prove their various

titles. In so doing, the law is that they cannot rest on the

weakness of the other party but must prove their claim on

the balance of probabilities, to see on which side the

evidence preponderates - Orianzi v. A/G Rivers State

(2017) 6 NWLR Part 1561 Page 224 at 264 Para D-H

per Galinje JSC; Momoh v. Umoru (2011) 15 NWLR

Part 1270 Page 217 at 281 Para C per Adekeye JSC;

Adeleke v. Iyanda (2001) 13 NWLR Part 729 Page 1 at

21-22 Para H-D per Uwaifo JSC.

Having held that the lower Court was wrong to dismiss the

Appellant’s case, I shall put both sides on an imaginary

scale to see on which side the evidence preponderates.

On the side of the Appellant, traditional evidence has been

pleaded and given of how the grandfather of Dan Isa was

the first settler on the land. His son, the father of Dan Isa,

inherited the same, which land devolved to Dan Isa, who

subsequently sold to Gambo Lemu and later to the

Deceased.

For traditional evidence to be satisfactorily proved, the

following must be present:

1. Who founded the land;

2. How he founded it; and

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3. The persons on whom the land devolved from its founder

to the Plaintiff.

The pleading of the devolution as well as the evidence in

support must be reliable and credible, with no missing link,

otherwise the claim for title will fail. See Awodi v. Ajagbe

(2015) 3 NWLR Part 1447 Page 578 at 613 Para B-E;

(2015) All FWLR Part 769 Page 1129 at 1155 Para E-

H per Ngwuta JSC; Anyafulu v. Meka (2014) 7 NWLR

Part 1406 Page 396 at 411 Para D-F per Aka'ahs JSC;

Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page

325 at 344 Para C-E; (2015) All FWLR Part 775 Page

200 at 212 Para B-C per Fabiyi JSC.

This, I hold, has been satisfied in this case by the Appellant.

The Appellant has also tendered a sales agreement in proof

of the sale to him by his predecessor in title. The

Respondent’s Counsel has complained that it is

inadmissible as it is a photocopy.

The proceedings of the Court, prior to tendering the

receipt, at Page 140 of the Record was:

“PW1: A receipt was issued to me after purchasing it.

I can identify this receipt through my signature. This

is the receipt. The original is with the people I bought

for.

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Adedokun: We seek to tender it and its English

translation.

U. U. Buhari: No objection.

Court: Admitted as Exhibit 1 and 1A respectively.”

As is clear from the proceedings, there was no objection

from Counsel, in consequence of which it was received by

the Court. This is not a document requiring a certified copy

and no other evidence, as contemplated in Section 91(1)(c)

of the Evidence 2011, but is a private document.

As held by this Court in the case of Isitor v Fakarode

(2008) 1 NWLR Part 1069 Page 602 at 626, Para E-F

per Jega JCA (of blessed memory), what is required is an

explanation to the satisfaction of the Court to enable the

admissibility of secondary evidence and not a justification.

Putting a finality on this contention by Counsel, the

Supreme Court in the recent decision of Anagbado v

Faruk (2018) LPELR-44909(SC) held, per Sanusi JSC at

Page 16 Para D-F, that:

“The law is trite and well settled too, that if party fails

to raise objection to the admissibility of a document

tendered by an opposite party, the person/party who

fails to object to the admission of such document,

cannot later raise the issue of admission of the

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document by the trial Court at the appellate Court.

See Alade vs Olukade (1976) 2 SC 183 at 119; Raimi v

Akintoye (1986) 3 NWLR (Pt. 26) 97. The doctrine of

estopped by conduct is even applicable on that.”

The Respondent, having waived any objection to this

document, cannot be heard to impugn the same, I hold.

This document shall thus be given the weight it deserves.

Counsel has again contended that the Sales Agreement was

not registered.

It is correct, as contended by the Respondent’s Counsel,

that the sales agreement relied upon by the Respondent,

being an instrument affecting and transferring rights to

title and interest in land, was not registered as required by

Section 15 of the Land Instrument Registration Law of

Kaduna State.

It has however been held in the case of Agboola v United

Bank for Africa Plc (2011) 11 NWLR Part 1258 Page

375 at 415 Para F-H per Adekeye JSC, that a purchaser of

land who has paid and taken possession of the land by

virtue of a registrable instrument which has not been

registered, acquires an equitable interest which is as good

as a legal estate. Such equitable interest can only be

defeated by

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a purchaser for value without notice of the prior equity. See

also Dauda v. Bamidele (2000) 9 NWLR Part 671 Page

199 at 211 Para F-G per Mangaji JCA; Nsiegbe v.

Mgbemena (1996) 1 NWLR Part 426 Page 607 at 622

Para B-E per Edozie JCA (as he then was).

Again putting a finality to this question is the decision of

the Supreme Court in the case of Anagbado v Faruk

Supra per Eko JSC at Pages 31-33, Paras. E-C where he

held as follows:

"The Appellant had made an issue of whether Exhibit

P2, the letter of offer issued to the Respondent, was a

registrable document which must be previously

registered under the Kaduna State Lands Registration

Law Cap 85 Laws of Kaduna State, 1991 before it

would be admissible in evidence. Section 15 of the

said Law, Cap, 85, provides:

“No instruments shall be pleaded or given in evidence

in any Court as affecting any land unless the same

shall have been registered in the proper office as

specified in Section 3.”

The purport of this law, as argued by the Appellant, is

that a registrable land instrument, which though is a

material and relevant piece of evidence under the

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Evidence Act, 2011 which has not been so registered

under the Law Cap 85 is not admissible in evidence in

any Court of Law. The argument neither impresses

nor convinces me.

The Law Cap. 85 of Kaduna State (Section 15

thereof), in so far as it purports to render

inadmissible any material and relevant piece of

evidence that is admissible in evidence under the

Evidence Act, 2011, is to that extent inconsistent with

the Evidence Act, enacted by the National Assembly

pursuant to the powers vested in it by Section 4(2) of

the Constitution and Item 23 of the Exclusive

Legislative List set out in Part I of the Second

Schedule to the Constitution. Evidence is Item 23 in

the Exclusive Legislative List. I am of the firm view

that, in view of Section 4(5) of the Constitution read

with Section 4(2) and Item 23 of the Exclusive

Legislative List set out in Part I of the Second

Schedule to the Constitution, in the event of Section

15 of the Law Cap. 85 of Kaduna State being in

conflict or inconsistent with any provisions of the

Evidence Act, the provisions of the Evidence Act shall

prevail. The sum total of all I am saying, on this issue,

is that Section 15 of the Kaduna State Law Cap 85

cannot

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render inadmissible Exhibit P2 which evidence is

material, relevant and admissible in evidence under

the Evidence Act, 2011. A piece of evidence

admissible in evidence under the Evidence Act cannot

be rendered inadmissible in evidence by any law

enacted by the House of Assembly of any State.”

Underlining mine

It is therefore clear that Exhibit A and A1 were rightly

admitted by the trial Court and are admissible in proof of

title of the deceased.

The equitable interest acquired by the Appellant, who by

the evidence of her witnesses, had taken over possession of

the land, is as good as a legal estate, I hold, which can only

be defeated by a purchaser for value without notice of the

prior equity. SeeAgboola v UBA Supra.

The Respondent has however produced no document of

title. The Sales Agreement and Certificate of Occupancy

pleaded were not tendered. Neither she nor her witnesses

gave evidence of the boundaries of the land, unlike the

Appellant, whose witnesses were not challenged on this. No

traditional evidence was proffered. The evidence of the

Respondent as to title is the mere ipse dixit of she and her

witnesses, without more.

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Her only witnesses are to the fact that they were given the

land to farm on. This, without more, is not evidence of

ownership but is consistent, I hold, with acts of trespass on

land that does not belong to the Respondent.

Indeed, the evidence of PW2 of the fact that the land she

was claiming did not belong to her and that she was

warned that the land she was laying claim to was different

from that purchased by her husband was not challenged or

controverted, I have earlier observed

Placing the evidence of both sides on an imaginary scale,

the Respondent unfortunately had nothing to put on the

other side of the scale, which scale preponderated heavily

in favour of the Appellant.

I accordingly hold that the lower Court wrongly entered

judgment in favour of the Respondent on her Counter

Claim. I also hold that on the strength of the pleading and

evidence led by the Appellant, the Appellant established

her case on the preponderance of evidence. I thus resolve

both the 2nd and 3rd issues for determination in favour of

the Appellant.

In consequence, this appeal succeeds. The judgment of the

lower Court in favour of the Respondent is set aside in its

entirety.

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This Court is empowered by Section 15 of the Court of

Appeal Act 2004 to make any order which the trial Court

should have made. See Egbuchu vs Continental

Merchant Bank Plc (2016) 8 NWLR Part 1513 Page

192 at 209 Para C – D per Kekere-Ekun JSC.

This is rendered even more essential in order to bring to

closure this case which was instituted about 11 years ago.

Having allowed the Appellant’s appeal, I enter Judgment in

favour of the Appellant as per her Statement of Claim, as

follows:

1. A declaration is granted that the Appellant is the owner

of the land situate lying in the area known as Tukur-Tukur,

Zaria Local Government Area of Kaduna State and it

bounded as follows:

i. In North – the land is bounded by the farm of Babajo;

ii. East – bounded by farm of Mallam Zubairu.

iii. South – bounded by the farm land of Mallam Yakubu

Tanko, and in the West it is bounded by the famous

Traditional wall of Tukur- Tukur and a bush, all measuring

1.03 Acre or 0.417 Hectares.

2. A perpetual injunction is granted restraining the

Respondent whether by herself, her servants, agents

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and/or privies from entering into the piece of land afore

described in paragraph 1 above or dealing with it in any

manner that may be detrimental to the interest of the

Appellant.

3. The sum of N200,000.00 is awarded as general damages

against the Respondent.

The parties shall bear their respective costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had

the privilege of reading the draft judgment of my lord

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree

that the appeal has merit for the reasons given in the lead

judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read in draft

the lead judgment delivered by my learned brother,

Oludotuna A. Adefope-Okojie, JCA. I agree with him in the

reasoning and conclusions reached in the judgment. I have

nothing useful to add. I also allow the appeal and set aside

the Ruling of the lower Court and in lieu thereof, an order

of interlocutory injunction restraining the Respondents,

their agents; etc. pending the hearing and determination of

the substantive suit, is hereby granted.

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Appearances:

Dr. K. A. Adedokun For Appellant(s)

M. A. Adamu with him, M. S. Abdullahi ForRespondent(s)

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