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DUNG v. RAILWAY PROPERTY MGT CO. LTD
CITATION: (2018) LPELR-45378(CA)
In the Court of AppealIn the Jos Judicial Division
Holden at Jos
ON THURSDAY, 14TH JUNE, 2018Suit No: CA/J/65/2014
Before Their Lordships:
ADAMU JAURO Justice, Court of AppealUCHECHUKWU ONYEMENAM Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of Appeal
BetweenAUGUSTINE DUNG - Appellant(s)
AndRAILWAY PROPERTYMANAGEMENT CO. LTD - Respondent(s)
RATIO DECIDENDI
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1. 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 now trite that five modes are utilised in establishing title to land and in this, thecase of IDUNDUN V. OKUMAGBA (1976) 0 - 10 SC has been very outstanding andthose methods are:1. Traditional evidence.2. Production of documents of title which are duly authenticated.3. Acts of selling, leasing, renting out all or part of the land or farming on it or on aportion thereof.4. Acts of long possession and enjoyment of the land, and5. 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.SOGUNRO & ORS V. YEKU & ORS (2017) LPELR - 41905 (SC); FALEYE & ORS. V. DADA& ORS. (2016) LPELR - 40297 (SC). Proof of any one of the ways listed above issufficient to grant a declaration of title to land. ORIANZI V. AG RIVERS STATE & ORS.(2017) LPELR-41737 (SC)."Per ONYEMENAM, J.C.A. (Pp. 11-12, Paras. C-B) - read incontext
2. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: What is required of a personrelying on evidence of traditional history in an action for declaration of title to land"It is trite that a party seeking for a declaration of title to land, who relies ontraditional history as proof of his root of title, must plead same sufficiently. He muststate in his pleading the original founder of the land, how he founded the land, theparticulars of the intervening owners through whom he claims. Where a party has notgiven sufficient information in his pleadings as regards the origin or ownership of theland and the line of succession to himself, he has just laid foundation for the failure ofhis claim. ANYAFULU & ORS. V. MEKA & ORS. (2014) LPELR - 22336 (SC); HYACINTHANYANWU V. ROBERT ACHILIKE MBARA & ANOR. (1992) 5 SCNJ 90; IDUNDUN V.OKUMAGBA (1976) 9 - 10 SC 224; ATANDA V. AJANI (1989) 3 NWLR (PT. III) 511.In the herein case the Appellant pleaded ownership of the land in dispute byinheritance in the following manner: "At the trial the Plaintiff shall contend that heinherited the farm land from his own father by name Davou Lung who had alsoinherited same from his own father by name Pam Kadung together with his ownbrother Chung Kareng both of whom were the only male children of the first settler onthe land in dispute by name Kadong." Paragraph 4 of the Appellant's amendedstatement of claim.The Appellant did not in his averment in the pleading attempt to state the originalfounder of the land and how the land was founded whether by conquest,deforestation, outright gift etc. He merely stated that his grand father Pam Kadungfirst settled on the land without averring how he so came to settle on the land indispute. This does not satisfy the requirement of the law in proof of title by traditionalhistory. I hold that the trial Court was right to so hold."Per ONYEMENAM, J.C.A. (Pp.12-13, Paras. B-E) - read in context
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3. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: Whether oral evidence must be ledin respect of documentary evidence"On the issue that no evidence was led in relation to Exhibit 'A'. The Appellant'scounsel rightly submitted that documentary evidence where admissible is the bestform of evidence. AKINBISADE V. STATE (2006) 27 NSCQR PAGE 743; BUNGE V.GOVERNOR OF RIVERS STATE (2006) 27 NSCQR PAGE 46; SKYE BANK PLC & ANOR. V.AKINPELU (2010) LPELR-SC.38/2003; INTERDRILL (NIG) LTD. & ANOR. V. UBA PLC(2017) LPELR-SC.4/2007. This notwithstanding, the learned counsel for the Appellantmisconceived the issue herein. The learned trial Judge did not hold that Exhibit 'A'needed oral evidence to prove it or to support it, the learned trial Judge expungedExhibit 'A' for two reasons. The first which I have held he was in error is that the saidexhibit was not pleaded.The second is that no evidence was led to the Exhibit 'A' with the claim of theAppellant. This is not the same as saying that the Appellant needed to lead evidencein further prove of Exhibit 'A' as contended by the Appellant' counsel.The position of the law is that it is the duty of a party who has tendered a document inCourt in support of his case to specifically through oral evidence link or tie up thedocument to the purpose for which it was tendered in evidence for such document tobe evaluated and ascribed probative value by the Court. It is not the duty of the Courtto investigate documents placed before it to ascertain the purpose for which it wastendered in evidence. A party who did not lead evidence to tie up document he hastendered before a Court is deemed not to have talked to the document but merelydumped the document on the Court and in which case the document would not beaccorded probative value. It is immaterial the way and manner the document wasadmitted in evidence. Even when a document was properly admitted in evidence andmost useful in the determination of the case, once there is no admissible oralevidence to link up the document with the purport for which it was tendered andrelate same to the case; then the document will not add value to the case of the partybecause the document though may speak for itself after oral evidence has led to itsproper admission in proceedings, but before then, oral evidence must be called tospeak to it at the initial stage of the proceedings to avoid the ailment of dumping thesame on the Court. EJIOGU V. ONYEAGUOCHA (2006) ALL FWLR (PT. 317) 467;ARABAMBI V. ADVANCE BEV. IND. LTD. (2006) ALL FWLR (PT. 295) 581; LUMATRONNIGERIA LTD. & ANOR. V. FIRST CITY MONUMENT BANK PLC. (2016) LPELR-CA/L/860/2013.The learned counsel for the Appellant was under erroneous impression that by virtueof Sections 218 and 219 of the Evidence Act, 2011 as amended, since Exhibit 'A' wastendered by an official witness who was merely subpoenaed to tender the samewithout giving oral evidence, oral evidence was not required for any reason withregard to placing Exhibit 'A' properly before the Court for it to accrue probative value.The issue as I have explained above is that of tying Exhibit 'A' to the purpose forwhich it relates to the claim of the Appellant in which case Sections 218 and 219 ofthe Evidence Act are not relevant to this case. Actually, there was no oral evidenceled by the Appellant to link Exhibit 'A' with the purpose for which it was tendered. Noevidence to tie Exhibit A to the case and pleadings of the Appellant. Accordingly, Ihold that the learned trial Judge was right when he expunged Exhibit 'A' for lack ofevidence from the Appellant to tie the same to his claim by adducing oral evidencethat will make clear the purpose of the exhibit by linking it up to the facts placedbefore the Court."Per ONYEMENAM, J.C.A. (Pp. 22-25, Paras. B-C) - read in context
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4. LAND LAW - ACTS OF POSSESSION AND OWNERSHIP: What a party relying onacts of possession and ownership must prove in a claim for declaration of title to land"Again at paragraphs 5 to 8 of the amended statement of claim the Appellant pleadedownership by possession. In OLUKOYA V ASHIRU (2006) ALL FWLR (PT. 322) 1479; theapex Court gave the third method of proving ownership of land as follows:- "By acts ofselling, leasing, renting out all or part of the land or farming on it or on a portionthereof." The Appellant herein outside listing in the pleadings the names of those hepurportedly sold portions of the land to, never called any of them to give evidence ofsuch sell, lease or renting of the land in dispute. Also the Appellant did not call anyone to give evidence of sharing boundary with him in the land he has been inpossession as his act of ownership. Again I agree with the trial Court that theAppellant did not proof possession as act of ownership of the disputed land to warrantthe award of the disputed land in his favour. Also he did not proof ownership by actsof selling, leasing, renting out all or part of the land or farming on it or on a portionthereof. The Appellant also failed to tender in evidence the judgment he allegedlyobtained against Nigerian Railway Corporation at the Federal High Court. All thesewere fatal to the claim of the Appellant. Rather on its part, the Respondent by theevidence of DW1 and DW2, sustained that the property in issue belonged to NigerianRailway Corporation by virtue of the vesting order of 1956 which vested the land indispute to the Corporation. At page 105 lines 1 to 11, DW2 stated that the land wasacquired Pursuant to the Nigerian Railway Corporation (Vesting of Land) Order 1956.The DW2 also said "The land was acquired essentially for the purpose of laying RailTracks, building or erection of Station, Stationary building such as Ware Houses,Running Shade, Offices and Residential Quarters, etc.The lands are used for granting of leases and licenses to attract revenue for theRailway Corporation and there is a master vesting plan." He described the MasterVesting Plan N. R. 9 running from Kafanchan to Jos. He identified the Master Vestingplan at page 30 of a book. The above evidence was in no way contradicted. The issueof whether compensation was paid or not was not made an issue at the trial Court, itcannot therefore be considered in this appeal. There is also no evidence before theCourt of the revocation of the Vested Order. In the light of the above I hold the viewthat the Respondent established its title in view of the evidence adduced by it andmet the requirements of law by the production of Exhibits "B", "B1" & "B2"; andadducing evidence to link up the exhibits with its case at the trial Court. The weight ofthe Respondent's evidence on the imaginary scale was heavier than that of theAppellant.Accordingly, I hold that the learned trial Judge was right when he said the Appellantfailed to proof title to the land in dispute and adjudged that the Respondent has abetter title."Per ONYEMENAM, J.C.A. (Pp. 13-16, Paras. E-B) - read in context
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UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the
Leading Judgment): This is an appeal against the
judgment of the High Court of Plateau State sitting in its
original Jurisdiction at Bukuru, Jos Judicial Division
delivered on 25th November, 2011 in SUIT NO:
PLD/J101/2006 by P. L. LOT, J. wherein the learned trial
Judge entered judgment for the Respondent who was the
Defendant.
On 22nd May, 2006 and 16th February, 2007 respectively
the Plaintiff sought and obtained the leave of the trial Court
to sue in a representative capacity and to amend the name
of the Defendant from RAILWAY PROPERTY COMPANY to
RAILWAY PROPERTY MANAGEMENT COMPANY LTD; also
to amend the Writ of Summons and the Statement of Claim
wherein the Appellant claimed:
1. A declaration that the Plaintiff is the owner of
Customary Right of Occupancy over all the entire land
situate and lying immediately behind the “B” Division
of the Nigeria Police Force Bukuru.
2. A perpetual injunction restraining the Defendant,
its privies or agents from trespassing or otherwise
interfering with the land in dispute.
3. N1,000,000.00 general damages.
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4. Cost of this action.
The case of the Appellant is that he is the owner of the
Customary Right of Occupancy of all the land situate and
lying immediately behind the “B” Division of the Nigerian
Police Force Bukuru which measures 2,965 hectares. It was
contended that the Appellant inherited the farm land from
his father by name Davou Lung who also inherited same
from his own father Pam Kadung together with his brother
Chung Kareng who were the only male children of the first
settler by name Kadong. It was also averred that some
parts of the land was sold by the Plaintiff’s father to the
following persons: ECWA GOOD NEWS CHURCH;
AMBASSADOR CINEMA BUKURU; THE “B” DIVISION OF
THE NIGERIA POLICE STATION BUKURU JOS SOUTH
LGC.; MR. BITRUS DEDEIN; who are all in possession till
date.
The Appellant also claimed that he sued and got judgment
against the Nigerian Railway Corporation at the Federal
High Court Jos, after which judgment, the Respondent
started laying claim of ownership to the land in dispute by
using force to harass and chase the Appellant out of the
land. Owing to the attitude of the Respondent’s agents, the
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Appellant made report against them at the Police Station
“B” Division Bukuru who advised them to go to Court,
whereupon they instituted this action.
The Respondent on its own part denied the Appellant’s
claim and contended in their statement of defence and
counter claim that the Appellant has no title over the land
in dispute because by vesting order the Nigerian Railway
Corporation the parent corporation of the Respondent since
1956 has the Statutory Title of all lands 7.5ft on either side
of Railway line including where the Appellant claims and
over the years the Respondent has been using the land for
overriding public purposes.
That the Respondent which is a subsidiary of Nigeria
Railway Corporation manages vast areas of Railway lands,
landed properties throughout Nigeria including the
disputed land. It was contended that the Respondent was
not a party in the case at the Federal High Court which
judgment was obtained ex parte and was later set aside.
They denied harassing or chasing or using force on the
Appellant or any one and urged the Court to dismiss the
claim. In the counter claim of the Respondent, it was
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contended that the Appellant was trespassing into its land
and alienating the same to third parties. The Respondent in
its counter claim sought declaration that the Respondent
being the subsidiary of the Nigerian Railway Corporation
the rights and privileges and appurtenance is vested on it
to the exclusion of the Appellant; perpetual injunction
restraining the Appellant, himself, his heirs, servants,
agents or representatives from trespassing or continuing
the act of trespass on the disputed land situate and lying
behind “B” Division of the Nigeria Police Force Bukuru Jos
Plateau State and damages of N1,000,000.00 for trespass
for unlawful entry and alienation to third parties without
the consent of the Respondent. Following the death of the
Plaintiff (Ibrahim Bot) he was substituted with Augustine
Dung.
At the close of evidence and addresses of counsel to the
parties, the learned trial Judge entered judgment for the
Respondent. The Appellant being dissatisfied with the
judgment of the trial Court has now appealed to this Court.
Relevant processes were filed and exchanged for the
appeal to become ripe for hearing.
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On 20th March, 2018 while G. G. Achi Esq. with R. N.
Wuyep & S. K. Mancha appeared for the for Appellant, T. J.
J. Danjuma Esq. with C. N. Bitrus appeared for Respondent.
Mr. Achi adopted and relied on the Appellant’s Brief
deemed properly filed and served on 16th February, 2017,
and Reply Brief deemed properly filed and served on 20th
March, 2018. He urged the Court to allow the appeal. In
response Mr. Danjuma adopted and relied on the
Respondent’s Brief filed 23rd January, 2018 and deemed
properly filed and served the same day in urging the Court
to dismiss the appeal.
In the Appellant’s brief prepared by Mr. G.G. Achi, the
following 3 issues were distilled for the determination of
the appeal.
1. “Whether the learned Judge of the trial High Court
was right in holding that the Defendant (now the
Respondent) has better title to the land than the
Plaintiff (now the Appellant) in spite of the
overwhelming evidence led by the Appellant.
2. Whether in view of the importance of Exhibit A
which was a file that contains detailed information
and documents regarding the disputed land, the trial
High Court was right to have expunged it from its
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records on the ground that no oral evidence was led
on same.
3. Whether a document relevant to a case tendered
and admitted in evidence as in this case exhibit A
needs further evidence on same before the Court can
give probative value to it.”
On their part, in the Respondent’s brief Mr. Tolu Omatsola
raised the following 3 issues for determination.
i) “Whether the Learned trial Judge of the Lower
Court was right in holding that the Defendant has a
better title to the land than the Plaintiff now
Appellant.
ii) Whether the lower Court was right to have
expunged Exhibit “A” from its records on the ground
that no oral evidence was led on same.
iii) Whether the Lower Court was right in holding that
Exhibit “A” needs further evidence before the Court
can give probative value to it.”
The issues formulated by the counsel to the parties say the
same thing. I shall adopt the issues as formulated by the
Respondent’s counsel to determine the appeal as the same
is more elegantly phrased. I will resolve issue 1 separately
and issues 2 and 3 together.
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ARGUMENTS ON ISSUE 1
Mr. Achi submitted on who the onus of proof rests in civil
actions. He relied on: EWO V. ANI (2004) 17 NSCQR
PAGE 36 AT 56. He noted the position of the law that title
to land can be proved not only by traditional history but by
four other means which he listed. He cited: ALLI V.
ALESINLOYE (2000) FWLR (PT. 15) PAGE 2610;
IDUNDUN V. OKUMAGBA (1976) 9 - 10 SC 227.
The learned counsel submitted that at the trial Court the
Appellant proved his title by traditional history. He referred
to the evidence of PW 1 at page 93 lines 14 to 22 and page
94 lines 1 to 7 of the record. He also referred the Court to
the evidence of PW2 at page 95 lines 1 to 19 of the record.
He contended that the evidence of the Appellant on
traditional history and the land that shares boundaries with
the land in dispute was not controverted. He submitted that
traditional evidence which is not contradicted and found by
the Court to be cogent can support a claim for declaration
of title. EWO V. ANI (SUPRA) AT PAGE 57. He argued
that the trial Court should have relied on the above
referred evidence to enter judgment for the Appellant. He
relied on: Section 131 of the
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Evidence Act 2011 as amended; AFRIBANK NIGERIA
LIMTED V. MOSLAD INTERPRISES LIMITED (2008)
ALL FWLR (PT. 421) PAGES 877; NITEL PLC V. AYU
(2008) ALL FWLR PT. 411 page 904.
Mr. Achi contended that assuming without conceding that
the land was vested on Nigerian Railway Corporation, the
evidence on record suggests that the Appellant is the
owner of the disputed land excluding the rail lines and 7
feet both ways from it. He also argued that from the
evidence of the Appellant at the trial Court the size of land
they claim is 2,965 hectares as contained in the site plan.
Again, he argued that from the evidence of the traditional
ruler that the government did not write him about the
alleged acquisition and the fact that there is no evidence of
compensation, it means that the land in dispute if truly
acquired was not acquired as provided by the law in which
case the vesting was invalid. He relied on: PROVOST V.
DR. EDUN (2006) NSCQR PAGE 37 AT 395; L.S.D.P.C.
V. BANIRE (1992) 5 NWLR (PT.234) AT 620.
He urged the Court to resolve the issue in favour of the
Appellant.
In response, Omatsola argued that the trial Court based its
decision on the evidence adduced by both
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parties. He referred to the contention of the Respondent at
the trial Court that the land in dispute was vested on the
Nigerian Railway Property Management Corporation in
1955 by virtue of Section 35 (1) of the Nigerian Railway
Corporation Act, a fact that he alleged was never
controverted under cross- examination by the Appellants.
On the other hand, it was his contention that the case of
the Appellant was that the land in dispute which he failed
to give a proper description of, was the subject of family
inheritance. The learned counsel submitted that this
position of the Appellant was rightly discountenanced by
the trial Court when it held in its judgment that the
pleadings of the plaintiff were bereft of the requisite
particulars for grant of title based on traditional history. He
referred to page 125 of the record.
On whether compensation was paid, the learned counsel
for the Respondent argued that compensation was not
made an issue at the trial Court. He submitted that the
onus was on the Appel lant to prove upon the
preponderance of evidence that he was entitled to the
declaration of title to the land in dispute. He cited:
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MOGAJI V. CADBURY NIG. LTD. (1985) 2 NWLR (PT.
7) 393; ADEOSUN V. JIBESIN (2001) 11 NWLR (PT.
724) 290 AT 306; ODOFIN V. AYOOLA (1984) 11 SC
72 AND OKAFOR V. IDIGO (1984) 1 SCNLR 481.
He further submitted that the law is well established and
settled that where a person relies on traditional history as
his root of title, the onus is on him to prove the root of title,
names and history of his ancestors. He should lead
evidence to establish same without any missing link. He
relied on: ANYANWU V. MBARA (1992) 5 NWLR (PT.
242) 386, AKINLOYE V. EYIOLA (1968) 2 NMLR 92,
OWOADE V. OMITOLA (1988) 2 NWLR (PT. 77) 413.
He also contended that the Evidence of PW1 at page 113
lines 16-18 is to the effect that the land in dispute was used
for cultivation and at a point some parts were sold, but the
Appellant failed to adduce evidence that the land in dispute
was sold, he also failed to call those owning intervening
land to testify or tender any documents to buttress that
fact. He submitted that this failure is fatal to his claim for
title to land in dispute based on traditional evidence. Mr.
Omatsola equally submitted that the Appellant failed to
show with
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clarity and certainty before the trial Court the boundaries
of the land claimed. He relied on: IORDYE V. IHYAMBE
(1993) 3 NWLR (PT. 280) 197 AT 207, OKE V. EKE
(1982) 12 SC 218 AT 246.
The learned counsel for the Respondent argued that the
case of the Appellant when juxtaposed with that of the
Respondent shows a heavier preponderance of evidence in
favour of the Respondent. He noted the aspects of the
Respondents that made the justice scale tilt in the
Respondent’s favour and urged the Court to resolve the
issue in favour of the Respondent.
RESOLUTION OF ISSUE 1
It is now trite that five modes are utilised in establishing
title to land and in this, the case of IDUNDUN V.
OKUMAGBA (1976) 0 - 10 SC has been very outstanding
and those methods are:
1. Traditional evidence.
2. Production of documents of title which are duly
authenticated.
3. Acts of selling, leasing, renting out all or part of
the land or farming on it or on a portion thereof.
4. Acts of long possession and enjoyment of the land,
and
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.
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SOGUNRO & ORS V. YEKU & ORS (2017) LPELR –
41905 (SC); FALEYE & ORS. V. DADA & ORS. (2016)
LPELR – 40297 (SC). Proof of any one of the ways listed
above is sufficient to grant a declaration of title to land.
ORIANZI V. AG RIVERS STATE & ORS. (2017)
LPELR-41737 (SC).
It is trite that a party seeking for a declaration of title to
land, who relies on traditional history as proof of his root of
title, must plead same sufficiently. He must state in his
pleading the original founder of the land, how he founded
the land, the particulars of the intervening owners through
whom he claims. Where a party has not given sufficient
information in his pleadings as regards the origin or
ownership of the land and the line of succession to himself,
he has just laid foundation for the failure of his
claim.ANYAFULU & ORS. V. MEKA & ORS. (2014)
LPELR – 22336 (SC); HYACINTH ANYANWU V.
ROBERT ACHILIKE MBARA & ANOR. (1992) 5 SCNJ
90; IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC 224;
ATANDA V. AJANI (1989) 3 NWLR (PT. III) 511.
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In the herein case the Appellant pleaded ownership of the
land in dispute by inheritance in the following manner: “At
the trial the Plaintiff shall contend that he inherited the
farm land from his own father by name Davou Lung who
had also inherited same from his own father by name Pam
Kadung together with his own brother Chung Kareng both
of whom were the only male children of the first settler on
the land in dispute by name Kadong.” Paragraph 4 of the
Appellant’s amended statement of claim.
The Appellant did not in his averment in the pleading
attempt to state the original founder of the land and how
the land was founded whether by conquest, deforestation,
outright gift etc. He merely stated that his grand father
Pam Kadung first settled on the land without averring how
he so came to settle on the land in dispute. This does not
satisfy the requirement of the law in proof of title by
traditional history. I hold that the trial Court was right to so
hold.
Again at paragraphs 5 to 8 of the amended statement of
claim the Appellant pleaded ownership by possession. In
OLUKOYA V ASHIRU (2006) ALL FWLR (PT. 322)
1479; the apex Court gave the third method of proving
ownership of
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land as follows:- "By acts of selling, leasing, renting out
all or part of the land or farming on it or on a portion
thereof.” The Appellant herein outside listing in the
pleadings the names of those he purportedly sold portions
of the land to, never called any of them to give evidence of
such sell, lease or renting of the land in dispute. Also the
Appellant did not call any one to give evidence of sharing
boundary with him in the land he has been in possession as
his act of ownership. Again I agree with the trial Court that
the Appellant did not proof possession as act of ownership
of the disputed land to warrant the award of the disputed
land in his favour. Also he did not proof ownership by acts
of selling, leasing, renting out all or part of the land or
farming on it or on a portion thereof. The Appellant also
failed to tender in evidence the judgment he allegedly
obtained against Nigerian Railway Corporation at the
Federal High Court. All these were fatal to the claim of the
Appellant.
Rather on its part, the Respondent by the evidence of DW1
and DW2, sustained that the property in issue belonged to
Nigerian Railway Corporation by virtue of the
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vesting order of 1956 which vested the land in dispute to
the Corporation. At page 105 lines 1 to 11, DW2 stated that
the land was acquired Pursuant to the Nigerian Railway
Corporation (Vesting of Land) Order 1956. The DW2 also
said “The land was acquired essentially for the purpose of
laying Rail Tracks, building or erection of Station,
Stationary building such as Ware Houses, Running Shade,
Offices and Residential Quarters, etc.
The lands are used for granting of leases and licenses to
attract revenue for the Railway Corporation and there is a
master vesting plan.” He described the Master Vesting Plan
N. R. 9 running from Kafanchan to Jos. He identified the
Master Vesting plan at page 30 of a book. The above
evidence was in no way contradicted. The issue of whether
compensation was paid or not was not made an issue at the
trial Court, it cannot therefore be considered in this appeal.
There is also no evidence before the Court of the revocation
of the Vested Order. In the light of the above I hold the
view that the Respondent established its title in view of the
evidence adduced by it and met the requirements of law by
the production of
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Exhibits “B”, “B1" & “B2”; and adducing evidence to link
up the exhibits with its case at the trial Court. The weight
of the Respondent’s evidence on the imaginary scale was
heavier than that of the Appellant.
Accordingly, I hold that the learned trial Judge was right
when he said the Appellant failed to proof title to the land
in dispute and adjudged that the Respondent has a better
title. I resolve issue 1 in favour of the Respondent.
SUBMISSIONS ON ISSUES 2 AND 3
Mr. Achi for the Appellant submitted that these issues
should be answered in the negative. He noted that Exhibit
A is file number 63463/S.9/22 with C. of O. No 9452
brought by an official witness on subpoena. He referred to
page 98 lines 1 to 15 and page 99 lines 4 to 8 of the record.
He further referred to Sections 15(a) and 15(b) of the
Evidence Act, 2011 as amended for what the Court should
take into account in assessing evidence before it. He
equally relied on Section 218 of the Evidence Act 2011 on
when a person is summoned to produce a document in a
proceeding and; Section 219 of the Evidence Act (supra) on
the status of a
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person just subpoenaed to produce document in a
proceeding.
Upon the above provisions of the law referred to, the
learned counsel for the Appellant argued that Exhibit "A"
which was produced by an official witness from the Plateau
State Ministry of Lands, Survey and Town Planning by
subpoena; and Counsel in the matter at the trial by consent
tendered it from the bar and same was admitted in
evidence and so marked, that Exhibit "A" does not need
oral evidence to support it before the trial Court would
accord probative value and consider same in its decision.
He referred to the holding of the learned trial Judge at
page 126 lines 26 and 27; and page 127 lines 1 to 3 of the
record. The learned counsel also invited the Court to the
pleadings at page 20 of the record particularly paragraph 3
of the Amended statement of claim lines 4 to 7; page 43 of
the record paragraph 6 lines 9 to 15 and paragraph 8 from
lines 23 to 33 both of which is part of the pleadings as
contained in the Reply to Defendant's Statement of Defence
and counter claim. Furthermore, he referred to counsel’s
address at page 70 wherein he reiterated the importance of
Exhibit 'A'.
17
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8) LP
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378(
CA)
Mr. Achi brought emphasis to the above pages of the
record to bring home the point that Exhibit 'A' formed part
of the pleading of the Appellant at the trial Court, and as
such the learned trial Judge was in error when he expunged
it (Exhibit A) from the record.
He submitted that documentary evidence in most cases do
not need further prove by way of oral evidence since they
are regarded as the best evidence that can be relied upon
and cannot be contradicted by oral evidence in most
instances as it speaks for itself. He cited: AKINBISADE V.
STATE (2006) 27 NSCQR PAGE 743; BUNGE V.
GOVERNOR OF RIVERS STATE (2006)27 NSCQR
PAGE 46.
The learned counsel finally urged the Court to resolve the
issues in favour of the Appellant and to allow the appeal.
Mr. Omatsola learned counsel for the Respondent
submitted that the answer to the two issues is in
overwhelming affirmative and urged the Court to so hold.
He referred to the amended statement of claim of the
Appellant to contend that Exhibit A was not pleaded by the
Appellant, that what was pleaded was a site plan. He
therefore submitted that Exhibit A is at variance with the
Appellant’s pleadings and goes to no issue.
18
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8) LP
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378(
CA)
He cited: MOJEED SUARA YUSUF V. MADAM IDIATU
ADEGOKE & ANOR. (2007) 4 SCNJ 77 AT 87 TO 88;
EZE V. ATASIE (2000) 10 NWLR (PT. 676) 470;
EGBUE V. ARAKA (1988) 3 NWLR (PT. 84) 598.
On the issue that Exhibit A was admitted by the trial Court
without objection, it was the learned counsel for the
Respondent’s submission that admission of a document is
one thing and the weight to be attached to it another. He
maintained that since no evidence was adduced in support
of Exhibit A by the Appellant the trial Court was right to
expunge and discountenance the said Exhibit. He urged the
Court to resolve issues 2 and 3 in favour of the Respondent;
dismiss the appeal and uphold the decision of the trial
Court.
RESOLUTION OF ISSUES 2 AND 3
The genesis of these issues is the holding of the learned
trial Judge at page 126 last paragraph and page 127 lines 1
to 8 that:
"I have said earlier in this judgment that exhibit "A"
which is file no. C of O 9454 tendered by the plaintiff
from the Bar without tying same to any evidence or
pleading, since the exhibit is at variance with the
pleadings and evidence it will not have value and it is
19
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8) LP
ELR-45
378(
CA)
hereby discountenanced because it is contrary to the
issue joined and therefore goes to no issue worthy of
consideration. See the case of: ALLI V. ALESINLOYE
(2000) FWLR (PT. 15) PAGE 2610. Exhibit ‘A’”
At page 126 lines 12 to 17 of the record, the trial
Court held:
“Exhibit ‘A’ was tendered by the Plaintiff’s counsel
from the Bar. The Exhibit is a file with C. of O. 9434
with the name of Nigerian Railway Corporation. The
Plaintiff only dumped the file and no more, there is
no reference made on the file, moreso, this file was
not pleaded and there is no evidence led on the file
Exhibit ‘A’. This file is of no use to the Plaintiff’s
claim. The file is hereby expunged.”
Based on the above holding, the Appellant to show that
Exhibit ‘A’ formed part of his pleadings, referred the Court
to the under reproduced paragraphs of his pleadings as
follows:
Page 20 of the record paragraph 3 of the Amended
statement of claim lines 4 to 7 reads thus:
"The plaintiff hereby pleads the site plan of the land
as drawn by official of the Plateau State Bureau for
20
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8) LP
ELR-45
378(
CA)
Lands Survey and Town Planning, Jos.”
Page 43 of the record paragraph 6 lines 9 to 15 of the
Reply to Defendant's Statement of Defence and counter
claim reads thus:
"It shall be the contention of the Plaintiff that the
only portion of the land in dispute given to the
Nigerian Railway Corporation the parent body to the
Defendant is the land on which the Rail line passed as
indicated in the C of 0 with number 9454. Notice to
produce the said C of O is hereby given to the
Defendant."
Page 43 of the record paragraph 8 from lines 23 to 33 of
the Reply to Defendant's Statement of Defence and Counter
Claim reads thus:
“8. The plaintiff hereby pleads the Nigerian Railway
Corporation’s (the parent company of the Defendant)
application for the Rail Line which passes through the
land in dispute, the C. of O. with number 9454 and all
other documents connected to the land in dispute as
kept by the Plateau State Ministry of Land, Survey
and Town Planning - the successor to ministry of land
and survey, Northern Region of Nigeria. Notice to
produce is hereby given to the Defendant to produce
at the hear ing o f th i s su i t a l l the above
mentioned documents."
21
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8) LP
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378(
CA)
From paragraph 8 at page 43 of the record, the Appellant
clearly pleaded Exhibit ‘A’ and gave the Respondent notice
to produce same leading to the production and tendering of
Exhibit ‘A’ from the Bar. The learned trial Judge was
therefore in error when he held that the Appellant did not
plead Exhibit ‘A’.
On the issue that no evidence was led in relation to Exhibit
‘A’. The Appellant’s counsel rightly submitted that
documentary evidence where admissible is the best form of
evidence. AKINBISADE V. STATE (2006) 27 NSCQR
PAGE 743; BUNGE V. GOVERNOR OF RIVERS STATE
(2006) 27 NSCQR PAGE 46; SKYE BANK PLC &
ANOR. V. AKINPELU (2010) LPELR-SC.38/2003;
INTERDRILL (NIG) LTD. & ANOR. V. UBA PLC (2017)
LPELR-SC.4/2007. This notwithstanding, the learned
counsel for the Appellant misconceived the issue herein.
The learned trial Judge did not hold that Exhibit ‘A’ needed
oral evidence to prove it or to support it, the learned trial
Judge expunged Exhibit ‘A’ for two reasons. The first which
I have held he was in error is that the said exhibit was not
pleaded.
22
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8) LP
ELR-45
378(
CA)
The second is that no evidence was led to the Exhibit ‘A’
with the claim of the Appellant. This is not the same as
saying that the Appellant needed to lead evidence in
further prove of Exhibit ‘A’ as contended by the Appellant’
counsel.
The position of the law is that it is the duty of a party who
has tendered a document in Court in support of his case to
specifically through oral evidence link or tie up the
document to the purpose for which it was tendered in
evidence for such document to be evaluated and ascribed
probative value by the Court. It is not the duty of the Court
to investigate documents placed before it to ascertain the
purpose for which it was tendered in evidence. A party who
did not lead evidence to tie up document he has tendered
before a Court is deemed not to have talked to the
document but merely dumped the document on the Court
and in which case the document would not be accorded
probative value. It is immaterial the way and manner the
document was admitted in evidence. Even when a
document was properly admitted in evidence and most
useful in the determination of the case, once there is no
23
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8) LP
ELR-45
378(
CA)
admissible oral evidence to link up the document with the
purport for which it was tendered and relate same to the
case; then the document will not add value to the case of
the party because the document though may speak for
itself after oral evidence has led to its proper admission in
proceedings, but before then, oral evidence must be called
to speak to it at the initial stage of the proceedings to avoid
the ailment of dumping the same on the Court. EJIOGU V.
ONYEAGUOCHA (2006) ALL FWLR (PT. 317) 467;
ARABAMBI V. ADVANCE BEV. IND. LTD. (2006) ALL
FWLR (PT. 295) 581; LUMATRON NIGERIA LTD. &
ANOR. V. FIRST CITY MONUMENT BANK PLC. (2016)
LPELR-CA/L/860/2013.
The learned counsel for the Appellant was under erroneous
impression that by virtue of Sections 218 and 219 of the
Evidence Act, 2011 as amended, since Exhibit ‘A’ was
tendered by an official witness who was merely subpoenaed
to tender the same without giving oral evidence, oral
evidence was not required for any reason with regard to
placing Exhibit ‘A’ properly before the Court for it to
accrue probative value. The issue as I have explained above
is that of tying Exhibit ‘A’ to
24
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8) LP
ELR-45
378(
CA)
the purpose for which it relates to the claim of the
Appellant in which case Sections 218 and 219 of the
Evidence Act are not relevant to this case. Actually, there
was no oral evidence led by the Appellant to link Exhibit ‘A’
with the purpose for which it was tendered. No evidence to
tie Exhibit A to the case and pleadings of the Appellant.
Accordingly, I hold that the learned trial Judge was right
when he expunged Exhibit ’A’ for lack of evidence from the
Appellant to tie the same to his claim by adducing oral
evidence that will make clear the purpose of the exhibit by
linking it up to the facts placed before the Court.
I therefore resolve issues 2 and 3 in favour of the
Respondent.
Conclusively, Appeal herein lacks merits, the same fails and
is dismissed. I affirm the Judgment of the High Court of
Plateau State delivered on 25th November, 2011 in SUIT
NO: PLD/J101/2006 by P. L. LOT, J.
No Order as to costs.
ADAMU JAURO, J.C.A.: I have had the opportunity of
reading in advance the lead judgment just delivered by my
learned brother, UCHECHUKWU ONYEMENAM, JCA. I am
in
25
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8) LP
ELR-45
378(
CA)
agreement with the reasoning and conclusion reached, that
the appeal is lacking in merit and should be dismissed. I
adopt the said judgment as mine and hereby dismiss the
appeal,
I subscribe to consequential orders made in the lead
judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I
have had the privilege of reading the lead judgment
delivered by my learned brother, Uchechukwu
Onyemenam, JCA. His Lordship has considered and
resolved the issues in contention in this appeal. I agree
with the reasoning and abide the conclusions reached
therein.
26(2
018)
LPELR
-4537
8(CA)
Appearances:
G. G. Achi with him, R. N. Wuyep & S. K. ManchaFor Appellant(s)
T. J. J. Danjuma with him, C. N. Bitrus ForRespondent(s)
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8) LP
ELR-45
378(
CA)
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