Effect of Failure of a Plaintiff and a Defendant to Prove their Root of Title to Land

CASE TITLE: NJIMOGU v. OKPE (2022) LPELR-57425(CA)

JUDGMENT DATE: 28TH APRIL, 2022

PRACTICE AREA: LAND LAW

LEAD JUDGMENT: MOHAMMED BABA IDRIS, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on the declaration of title to land.

FACTS

This appeal emanated from the Kaduna State High Court (trial Court).

By a writ of summons, the Appellant as Plaintiff in the trial Court, instituted an action against the Respondent as Defendant at the trial court and sought a declaration that the Plaintiff is the lawful and rightful owner of the Customary Right of Occupancy over a sixteen-rooms house located at Afaka, Mando, between Popoola Avenue and Malakali Farm, Mando, Kaduna, amongst other reliefs. On the other hand, the Respondent as Defendant/Counter-claimant claimed against the Appellant a Declaration that the Defendant is the rightful owner of the premises described now as No. 6 Malkali Close, Mando Kaduna and a perpetual injunction restraining the Plaintiff himself, agents heirs representatives, privies from entering into the said premises.

It was the claim of the Appellant at the trial Court that sometime in 1996 while he was serving at the Air force Base, Kaduna, he wanted to buy a property and one Mr. G. O. Nwachukwu introduced him to a property which was an uncompleted sixteen-room house situate between Popoola Avenue and Malakali in Mando, Kaduna and that he was later taken to Rigachukwu where the owner of the said house resided. It was the claim of the Appellant that he paid for the house, a memorandum of receipt was given to him and the sale was witnessed by the said Mr. G. O. Nwanchukwu, the Mai-angwan Tanimu Magaji who was the Maiangwan of Afaka Mando at the time and the Sarkin Afaka Mando, one Musa Ummar (Late). The Appellant also claimed that after the purchase, he pleaded with Mr. G. O. Nwanchukwu to look after the property as he lives close to the property and that he was later transferred out of Kaduna from 1996 to 2006 but when he came to Kaduna sometimes in 2008, 2009, 2010 and the property was there not until in 2011 when he discovered that the house was already completed and he immediately contacted Mr. Nwachukwu who said he thought the Appellant had sold the house.

The Appellant also claimed that he promptly reported the matter to the Sarkin Afaka in the company of Mr. Nwachukwu who promised to resolve the issue and that the Respondent at a point, offered to pay the sum of N1,000,000 for the house but that since the Sarkin Afaka and Mr. Nwachukwu were handling the issue, he trusted them to resolve it but the matter lingered on until he had to report the matter to the Kawo Police Division where it was disclosed that it was one Maikano Mohammed that sold the house to the Respondent. Appellant further claimed that Mr. Nwachukwu confirmed his title to the land but subsequently refused to sign the witness deposition in the case.

On the other hand, the Respondent in his counter-claim stated that he bought the property in dispute for the sum of N1, 000,000 from his predecessor in title, Mohammed Aliyu Isiyaku who bought the land from Sarkin Musa Umaru for the sum of N560 and was issued with “Takardan Shaida”. The said Takardan issued to the predecessor in the title does not contain the name of the Sarkin Musa Umaru and neither did it properly describe the house in dispute.

The sales agreement shows that the sum of N1,000,000 was paid by one “Patrick Ogwo” to one Sgt. Maikano Yunusa was acting on behalf of his Brother Muhammed Aliyu (the Respondent’s predecessor) for the land. However, the said Sgt. Maikano did not give evidence and neither was he called to give evidence that he received the said sum on behalf of Mohammed Aliyu.

The Learned trial Judge gave judgment wherein both the prayers in the statement of claim and the counter-claim was refused.

Dissatisfied with the said judgment of the trial court, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

In determining the appeal, the Court of Appeal considered the following issues formulated by the appellants:

1. Whether from the preponderance of the evidence the Appellant is not entitled to the judgment in his favour. 

2. Whether from the pleaded facts and the evidence of PW1, PW2 and PW5, constructive and or actual possession can be inferred therefrom to confirm the Appellant’s title.

DECISION/HELD

In the end, the Court of Appeal held that the Appellant and the Respondent were not entitled to judgment in their favour as they failed to provide evidence in proof confirming the claim to their respective titles. The Court of Appeal upheld the evaluation of evidence made by the trial Court and its findings thereon. It concluded that the appeal had no substance and it was thereby dismissed.

RATIOS:

• CUSTOMARY LAW – CUSTOMARY SALE OF LAND: Requirements for a valid sale of land under Native law and custom
• LAND LAW – TITLE TO LAND: When is the title to land put in issue; duty of a Claimant thereof
• LAND LAW – POSSESSION OF LAND: Meaning of possession; how to prove the same
• LAND LAW – ROOT OF TITLE: Duty of a party who traces his root of title to a particular person