(2017) LPELR-43205(CA)lawpavilionpersonal.com/ipad/books/43205.pdfdisposition of property has been...
-
Upload
trinhduong -
Category
Documents
-
view
228 -
download
1
Transcript of (2017) LPELR-43205(CA)lawpavilionpersonal.com/ipad/books/43205.pdfdisposition of property has been...
BALA v. GWARAM & ORS
CITATION: (2017) LPELR-43205(CA)
In the Court of AppealIn the Jos Judicial Division
Holden at Jos
ON WEDNESDAY, 31ST MAY, 2017Suit No: CA/J/53/2015
Before Their Lordships:
ADZIRA GANA MSHELIA Justice, Court of AppealADAMU JAURO Justice, Court of AppealUCHECHUKWU ONYEMENAM Justice, Court of Appeal
BetweenTIJJANI BALA(Suing for himself and on behalf of all Heirs of LateMalam Bala Abdullahi)
- Appellant(s)
And1. ALHAJI SABO GWARAM2. ALHAJI HAMIDU SAIDU GHANI3. ALHAJI YAKUBU ABDULLAHI
- Respondent(s)
RATIO DECIDENDI
(201
7) LP
ELR-43
205(
CA)
1. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Nature of burden of proof"The general rule in civil cases is that the burden of proof rests upon the party who substantially assertsthe affirmative before the evidence is gone into. The position therefore is that the burden of proof lies onthe person who would fail, assuming no evidence had been adduced on either side. Also in respect ofparticular facts, the burden rests on the party against whom judgment would be given if no evidence wasadduced in respect of those facts. Once that party produces the evidence that would satisfy the Court thenthe burden shifts on the party against whom judgment would be given if no more evidence was adduced.ALHAJI SAFIANU AMINU & ORS v. ISIAKA HASSAN & ORS (2014) LPELR SC.44/2002; OYOVBIARE vOMAMURHOMU (1999) 10 NWLR (PT. 621) 23 AT 34-35 (SC)To hand down in clarity of words, the nature and burden of proof in civil matters, the Supreme court inOKOYE & ORS V. NWANKWO (2014) LPELR- SC. 234/2004; held:"The burden of proof in civil cases has two distinct meanings, viz. (a) The first is the burden of proof as amatter of law and the pleadings usually referred to as legal burden or the burden of establishing a case.;(b) The second is the burden of proof in the sense of adducing evidence usually described as the evidentialburden. While the legal burden of proof is always stable or static the burden of proof in the second sensei.e. evidential burden of proof may oscillate constantly according as one scale of evidence or the otherpreponderates. In a civil case, while the burden of proof in the sense of establishing the case initially lieson the Plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from theplaintiff to the defendants and vice-versa as the case progresses. FEDERAL MORTGAGE FINANCE LTD VEKPO (2004) 2 NWLR (pr. 556) 100 AT 130 PER OLAGUNJU JCA; BALOGUN v. LABIRAN (1988) 3 NWLR (PT.80) 66; NWOSU V UDEOJA (1990) 1 NWLR (PT. 125) 188; ELEMO v. OMOLODE (1968) NMLR 359; CHIGWUv. BAPTIST CONVENTION (1958) 2 ALL NLR 294; ADEGOKE V. ADIBI (1992) 5 NWLR (PT. 242) 410." PERPETER-ODILI J.S.C. (pp. 36-37, PARAS. D-B)."Per ONYEMENAM, J.C.A. (Pp. 12-14, Paras. C-B) - read incontext
(201
7) LP
ELR-43
205(
CA)
2. EVIDENCE - PUBLIC DOCUMENT: Condition precedent to admissibility of public document"...the Respondents' counsel in his address at the trial Court submitted that Exhibits PL1 and PL11 heavilyrelied on by the Appellant in proof of his case were inadmissible because they were not certified truecopies of the order of the Kobi Sharia Court. This view was upheld by the trial Court and as such noprobative value was accorded the said exhibits. The proof of the title documents tendered as Exhibits PL1and PL11 was quite material to the success of the Appellant's case. But with the facts and circumstancesof the instant appeal, I cannot fault the finding of the trial Court on Exhibits PL1 and PL11 which beyondany dispute are public documents; and especially in the light of Section 104 of the Evidence whichprovides thus:"104(1) Every public officer having custody of a public document which any person has a right to inspectshall give that person on demand a copy of it on payment of legal fees prescribed in that respect, togetherwith a certificate written at the foot of such copy that it is a true copy of such document or part of it as thecase may be.(2) The certification mentioned in Subsection (1) of this Section shall be dated and subscribed by suchofficer with his name andhis official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, assuch copies so certified shall be called certified copies.(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall bedeemed to have the custody of such documents within the meaning of this section.From the wordings of Subsection (2) (supra), a document can only be called a certified copy of a publicdocument if, in addition to the "payment of legal fees prescribed in that respect, together with a certificatewritten at the foot of such copy that it is a true copy." (Subsection 1, supra), it (the certificate) "is... datedand subscribed by such officer with his name and his official title"... Essentially, any document that fallsbelow the above mandatory requirement is inadmissible as a certified copy of a public document. UDOMGABRIEL EMMANUEL V. UMANA OKON UMANA & ORS (2016) LPELR- SC. 1/2016; OMISORE V AREGBESOLAAND ORS (2015) 15 NWLR (PT. 1482) 205, 294; NDAYAKO V. MOHAMMED (2006) 17 NWLR (PT. 1009) 676;TABIK INVESTMENT LTD V. GUARANTY TRUST BANK PLC (2011) LPELR- 3731 (SC); NWABUOKU V.ONWORDI (2006) ALL FWLR (PT. 331) 1236.To drive home the importance and the fact that the proper certification of a public document as requiredby the law cannot be dispensed with; His Lordship Nweze JSC, stated as follows:"The whole essence of the Court's insistence of the scrupulous adherence to the above certificationrequirement of public document is to vouchsafe their authenticity vis-a-vis the original copies, to thirdparties, G and T. I. Ltd and Anor v. Witt and Bush Ltd (2011) LPELR -1333 (SC) 42, C-F. That explains why,in the absence of the original document; only such properly certified copies are admissible as secondarycopies of public documents "but no other kind of secondary evidence," G AND T.I. LTD AND ANOR v WITTAND BUSH LTD (SUPRA); ARAKA V EGBUE (2003) 33 WRN 1; MINISTER OF LANDS, WESTERN NIGERIA V.AZIKWE (1969) 1 ALL NLR 49; NZEKWU V NZEKWU (1989) 2 NWLR (PT. 104) 373 TABIK INVESTMENT LTDAND ANOR V. GUARANTEE TRUST BANK PLC (2011) 6 MJSC (PT. 1) 1, 21; DAGACI OF DERE V. DAGACI OFEBWA (2006) 30 WRN 7; ITEOGU V LPDC (2009) 17 NWLR (PT. 171) 614, 634 ETC. Thus, although theoriginal copies of public documents themselves are admissible, ONOBRUCHERE AND ANOR V ESEGINE(1986) 7 NSCC 343 AT 350; ITEOGU V. LPDC (2009) 17 NWLR (PT. 1171) 614, 634; the only pieces ofsecondary evidence in respect of the original of such public documents that are admissible are thecertified copies thereof but no other secondary evidence, MINISTER OF LANDS W.N. V AZIKIWE (1969) 1ALL NLR 49; ONOBRUCHERE AND ANOR. V. ESEGINE (SUPRA); ARAKA V. EGBUE (SUPRA); SPDC V ASWANITEXTILE INDUSTRIES LTD (1991) 3 NWLR (PT. 180) 496, 505; OJIBAH V OJIBAH (1991) 5 NWLR (PT. 191)296, 312; NZEKWU (1989) 2 NWLR (PT. 104) 373; TABIK INVESTMENT LTD AND ANOR V. GUARANTEETRUST BANK PLC (SUPRA); DAGACI OF DERE V DAGACI OF EBWA (SUPRA); ITEOGU V LPDC (SUPRA) 614,634 etc. put differently, in the absence of the original documents themselves, only such properly certifiedcopies are admissible as secondary copies of such public documents "but no other kind of secondaryevidence." G AND T.I. LTD AND ANOR V. WITT AND BUSH LTD (2011) LPELR- 1333 (SC) 42 C-E; ARAKA V.EGBUE (SUPRA); MINISTER OF LANDS, WESTERN NIGERIA V. AZIKIWE (SUPRA); NZEKWU V NZEKWU(SUPRA) TABIK INVESTMENT LTD AND ANOR V. GUARANTEE TRUST BANK PLC (SUPRA); DAGACI OF DERE VDAGACI OF EBWA (SUPRA); ITEOGU V LPDC (SUPRA) ETC." SEE: EMEKA V. CHUBA-IKPEAZU & 7 ORS (2017)LPELR- SC. 149/2016; (PP. 61-65, PARA F-C)There is nothing more to say on Exhibits PL1 and PL11 which are public documents but to uphold thefinding of the trial Court that in so far as the said public documents were not certified in accordance withSection 104 of the Evidence Act; the same are inadmissible in law and were wrongly admitted as in thisappeal; the learned trial Judge was right when he failed to accord any probative value to them."PerONYEMENAM, J.C.A. (Pp. 14-19, Paras. F-C) - read in context
(201
7) LP
ELR-43
205(
CA)
3. EVIDENCE - PUBLIC DOCUMENT: Whether the only admissible secondary evidence of public documentsis a certified true copy of same"On Exhibits PL1 and PL11, I had dealt with them while resolving issue 1. I will only add here that assecondary evidence of the order of the Kobi Sharia Court, they are admissible to prove the said order onlyif they are certified true copies as required by Section 105 of the Evidence Act and in compliance withSection 104 of the Evidence Act since the same are public documents by virtue of Section 102 of theEvidence Act. While resolving issue 1, I came to the conclusion that Exhibits PL1 and PL11 which are publicdocuments were not certified in accordance with Section 104 of the Evidence Act, 2011. Failure to becertified, they cannot in law be proof of the order of Kobi Sharia Court. Accordingly, the learned trial Judgewas right when he did not rely on them to find for the existence of the order of the Kobi Sharia Court."PerONYEMENAM, J.C.A. (P. 26, Paras. A-E) - read in context
4. EVIDENCE - DOCUMENTARY EVIDENCE: Ways of proving the contents of a document"Section 128 (1) provides:"1. When a judgment of a Court or any other judicial or official proceeding, contract or any grant or otherdisposition of property has been reduced to the form of a document or series of documents, no evidencemay be given of such judgment or proceeding or of the terms of such contract, grant or disposition ofproperty except the document itself, or secondary evidence of its contents in cases in which secondaryevidence is admissible under this Act; nor may the contents of any such document be contradicted,altered, added to or varied by oral evidence." By the above provision of the Evidence Act, a party seekingto establish the existence of a judgment of a Court must produce the said judgment or a secondaryevidence of the same as no oral evidence is allowed to be given on the said judgment in its proof."PerONYEMENAM, J.C.A. (P. 25, Paras. A-F) - read in context
(201
7) LP
ELR-43
205(
CA)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the
Leading Judgment): This appeal is against the decision of
the Bauchi State High Court delivered on 21st May, 2014 in
Suit No. BA/115/2012; wherein Hon. Justice A. H. Suleiman
dismissed the Appellant's claims in its entirety and awarded
the cost of N25,000.00 in favour of the 1st & 2nd
Respondents.
By a writ of Summons dated 13th July, 2012, the Appellant
as plaintiff sued the Respondents before the trial Court.
The Appellant in his Statement of Claim claimed the
following reliefs against the Respondents jointly and
severally thus:
A) A DECLARATION that the purported transaction
between the 3rd Defendant and the 2nd Defendant on
one hand and between the 2nd Defendant and the 1st
Defendant on the other hand over shop No. B-583
Kobi Street Bauchi when Suit No. CVA/32/2002 was
still pending is null, void and of no effect whatsoever.
B) A DECLARATION that the Plaintiffs are the legal
owners of shop No. B-583 Kobi Street, Bauchi is by
virtue of judgment of Upper Sharia Court II Bauchi.
C) AN ORDER of immediate ejection of the 1st
Defendant from shop No. B-583 lying and
1
(201
7) LP
ELR-43
205(
CA)
situate at Kobi Street, Bauchi.
D) A PERPETUAL INJUNCTION restraining the
Defendants from interfering in whatever manner
possible with the peaceful possession of shop No.
B-583 lying and situate along Kobi Street, Bauchi
belonging to the Plaintiffs.
E) Five Hundred Thousand Naira (N500,000.00)
general damages against the 1st Defendant for
trespass.
F) One Hundred and Fifty Thousand Naira
(150,000.00) legal fee paid by the Plaintiff to their
solicitors to prosecute this suit.
G) Cost of the action.
The dispute is on the ownership of shop No. B-583 lying
and situate along Kobi Street, Bauchi, Bauchi State. The
case of the Appellant is that he and the remaining heirs of
his father Bala Abdullahi who was the son of late Mallam
Abdullahi whose residence was No. B-583 Kobi Street,
Bauchi in front of which house a shop known as Shop No.
B-583 Kobi Street was built are the owners of the said shop
by virtue of inheritance. The Appellant said that upon the
death of Mallam Abdullahi in 2001, the estate of the
deceased was distributed by Kobi Sharia Court vide Suit
No. 002/GADO/2002 on 18th March, 2002 and the said
shop was given to Mallam Bala
2
(201
7) LP
ELR-43
205(
CA)
Abdullahi (the father of the Appellant) as his own share of
inheritance. It is also the Appellant's case that the 3rd
Respondent who is a brother to the Appellant's father was
dissatisfied with the distribution of the estate, he therefore
appealed to the Upper Sharia Court II, Bauchi. That while
the said appeal was still pending, Mallam Bala died; that,
as a result, the 3rd Respondent and his brothers came back
home and re-distributed the estate, wherein he took over
the said shop No. B-583 for himself and promptly sold same
to the 2nd Respondent who in turn sold to the 1st
Respondent who is now the occupant of the said shop.
It is further the Appellant's case that in 2012, the Upper
Sharia Court concluded the appeal filed by the 3rd
Respondent wherein it affirmed the decision of the Sharia
Court Kobi and directed the said Sharia Court Kobi to issue
title documents of its earlier decision in suit No.
002/GADO/2002 to all the heirs of late Mallam Abdullahi
and a writ of possession was issued to the Appellant.
The case of the Respondents at the trial Court is that the
said shop No. B-583 Kobi Street, Bauchi rightfully belongs
to the 3rd Respondent who
3
(201
7) LP
ELR-43
205(
CA)
built same and later exercised his power of sale as a bona
fide owner to sell same to one Alh. UBA IBRAHIM who later
sold to the 2nd Respondent and the 2nd Respondent finally
sold to the 1st Respondent who had been in absolute
possession and enjoying a peaceful possession of same
since 2005 without any challenge from anyone whatsoever.
It is also the case of the Respondents that in 2010 some
cousins of the Appellant numbering about 9 led by one
Sulaiman Ibrahim showed their dissatisfaction with the sale
transaction of the said shop between 2nd and 1st
Respondent by instituting an action against them before
the Upper Sharia Court II, Bauchi in suit No. CVF/41/2010
between SULAIMAN IBRAHIM & ORS. V. ALH. SABO
GWARAM & ALH. HAMIDU S. GANI, seeking a
declaration that the sale transaction between the 2nd and
1st Respondents was a nullity; that the said Upper Sharia
Court II, in its judgment affirmed the legality of the
transaction and dismissed the claims of the Appellant's
cousins and the said decision in Suit No. CVF/41/2010 is
still subsisting having neither been upturned nor quashed
by any superior or appellate Court; that having lost the
case through
4
(201
7) LP
ELR-43
205(
CA)
his cousins, the Appellant instituted this action before the
trial Court seeking the reliefs reproduced above as
contained in his statement of claim dated 8th July, 2012.
See pages 3-6 of the record.
The Respondents entered their appearance, but only 1st
and 2nd Respondents filed their separate statements of
defence, the 3rd Respondent did not file any defence. At
trial, the Appellant led evidence and called one other
witness who testified for him and tendered four (4)
documents marked as Exhibits PL1, PL2, PL3 and PL4
(Exhibit PL I is an Hausa version of a right of possession
issued by Kobi Sharia Court.; Exhibit PL II is the English
transaction of PL1.; Exhibit PL3 is a quit notice served on
the 1st Respondent, while PL4 is the reply to PL3). The
Appellant then closed his case.
The Respondents on their part called 3 witnesses with 1st
& 2nd Respondents as PW2 and PW3 and one other and
tendered four (4) documents marked as Exhibits DL1,
DL1A, DL2 and DL2A. (Exhibits DL1 is the record of
proceedings of Upper Sharia Court II, Bauchi in Suit No.
CVF/41/2010.; Exhibit DL1A is the English translated
version of Exhibit DL1. While Exhibit D12 is a writ
5
(201
7) LP
ELR-43
205(
CA)
of possession issued to the 1st Respondent by the Upper
Sharia Court II, Bauchi in Suit No. CVF/41/2010 dated 26th
September, 2011 and Exhibit DL2A is the English
translated version of Exhibit DL2) and the Respondents
closed their case. The 3rd Respondent represented himself
throughout the trial, but he neither filed any Defence nor
led any evidence and did not cross examine any of the
witnesses called by either the Appellant or the 1st and 2nd
Respondents, but rather rested his case on the 1st and 2nd
Respondents' case. At the conclusion of the hearing, parties
filed and exchanged their respective addresses and adopted
same on 21st March, 2014.
In its considered judgment delivered on 21st May, 2014,
the learned trial Judge dismissed the case of the Appellant
in its entirety and awarded the cost of N25,000.00 in favour
of the 1st and 2nd Respondents. Dissatisfied with the said
judgment the Appellant now appealed to this Court vide a
Notice of appeal dated and filed on 20th August, 2014 with
3 Grounds of appeal. The Appellant and 1st and 2nd
Respondents filed and exchanged their respective briefs of
argument according to the Rules of this Court. The 3rd
6
(201
7) LP
ELR-43
205(
CA)
Respondent did not file any brief. Although he was on 16th
March, 2017 personally served with the hearing notice for
the proceedings of 23rd March, 2017; he did not attend
Court on said date neither was any reason adduced for his
absence. Thereupon the Court heard the appeal on the
briefs of the Appellant; and the 1st and 2nd Respondents on
23rd March, 2017. The referred parties adopted their
respective briefs on the said date.
In the Appellants' brief settled by Mr. S.M. BAKARO Esq.
two (2) issues were nominated for the determination of this
appeal. The issues are:
1) Whether from the evidence of PW1 and PW2 it was
established that the transaction between 3rd and 2nd
Respondents was done in violation/against a valid
order of Court as delivered by Kobi Sharia Court in
Suit No. 002/GADO/2002 delivered in 2002 (Grounds
1, 2 and 3)
2) Whether considering the evidence of PW1 & PW2
and Exhibits PL1 and PL2 there was indeed Suit No.
002/GADO/2002 that distributed the estate of Mallam
Abdullahi grandfather of the Appellant? (Ground 1)
On his part, learned Counsel for the 1st and 2nd
Respondents, Mr. M. M. MAIDOKI Esq. who settled the
brief on
7
(201
7) LP
ELR-43
205(
CA)
behalf of the Respondents adopted the two issues
nominated by the Appellant reproduced above and further
raised another issue as the 3rd issue for determination. The
additional issue raised by the Respondents' Counsel is
hereunder reproduced as follows:
3. Whether from the facts, evidence placed before the
trial Court and the surrounding circumstances of this
matter, the decision of the trial Court is liable to be
set aside.
I shall determine the appeal based on the 2 issues raised by
the Appellant as the same will resolve the dispute between
the parties. The 2 issues shall be resolved in the order they
are set out above.
SUBMISSIONS ON ISSUE NO. 1
"Whether from the evidence of PW1 and PW2 it was
established that the transaction between 3rd and 2nd
Respondents was done in violation/against a valid
order of Court as delivered by Kobi Sharia Court in
Suit No. 002/GADO/2002 delivered in 2002"
Mr. S.M. BAKARO Esq. learned Counsel for the Appellant
urged the Court to answer this issue in the affirmative. He
contended that the Appellant as PW1 established via his
statement on oath and Exhibits PL1 and PL2 that the shop
(subject matter of
8
(201
7) LP
ELR-43
205(
CA)
this appeal) was indeed the share of inheritance of their
late father Mallam Bala who died in 2003 in line with
paragraph 5 of the Appellant's statement of claim. He
submitted that where a party leads evidence in line with his
pleading and tendered documentary evidence to fortify the
oral evidence then the trial Court would have no option but
to accept the piece of evidence as true. He referred to
Section 138(1) AND (2) OF THE EVIDENCE ACT, 2011 (AS
AMENDED) AND THE CASES OF ORGAN V. NLNG LTD
(2013) 16 NWLR (PT. 1381) PAGE 542; AKANDE V.
ADISA (2012) 15 NWLR (PT. 1324) PAGES 558;
REPTICO S. A. GENEVA V. AFRIBANK (NIG) PLC
(2013) 14 NWLR (PT. 1373) PAGE 217.
Learned Counsel further contended that even though the
1st Respondent is in possession of the shop, he has not
shown better title. He referred to: ISEOGBEKUN VS
ADELAKUN (2013) 2 NWLR (PT. 133) 178 and urged
the Court to resolve this issue in favour of the Appellant.
Responding, learned Counsel for the 1st and 2nd
Respondents urged the Court to answer this issue in the
negative, contending that based on the pleadings and the
evidence led by the parties, the Appellant did not establish
his case on
9
(201
7) LP
ELR-43
205(
CA)
the preponderance of evidence. He argued that the
Appellant pleaded and heavily relied on the purported
decisions of Kobi Sharia Court in Suit No 002/GADO/2002
and the decision of Upper Sharia Court II, Bauchi in Suit
No. CVF/32/2002, but could not produce either the record
of proceedings or the Certified True Copies of the said
judgments at the trial Court. On the other hand, the
learned Counsel referred to paragraphs 4-8 of the 2nd
Respondents statement of defence and his statement on
oath to the effect that the 3rd Respondent built the shop in
dispute and sold it to one Alhaji Uba Ibrahim who later sold
to the 2nd Respondent who in turn sold same to the 1st
Respondent. He further referred to the evidence of PWII,
under cross-examination at page 84 of the record wherein
he stated that he knows the shop in dispute alongside 2
other shops to have been built by the 3rd Respondent. He
also referred to Exhibit DL1 and DL2 which is unchallenged
decision of a Court of competent jurisdiction. The learned
Counsel for the Respondents cited the case of SAKATI V.
BAKO (2015) 14 NWLR (PT. 1480) 537; and submitted
that the provisions of Section 138(a) and (b) of the
10
(201
7) LP
ELR-43
205(
CA)
Evidence Act and all the authorities cited by the Appellant's
Counsel on this issue only go to strengthen the
Respondents' argument and urged the Court to resolve this
issue in favour of the Respondents.
RESOLUTION OF ISSUE NO. 1
The Appellant's contention at the trial Court is that by Suit
No: 002/GADO/2002, that Malam Hamza Umar, a Principal
Sharia Judge of Kobi Sharia Court distributed their grand
father Mallam Abdullahi's estate to his heirs after his
demise in 2001. That by such distribution, their father Late
Alhaji Bala was given the middle shop out of the three
shops lying and situate at No: B- 583 Kobi Street.
Dissatisfied with the decision, the 3rd Respondent appealed
to the Upper Sharia Court 11, but that while the appeal was
still pending and upon the death of their father; the
remaining heirs of their grand father redistributed the
estate and now gave the middle shop which had been given
to their late father to the 3rd Respondent who immediately
sold the same to the 2nd Respondent who in turn resold the
said shop to the 1st Respondent who is currently in
possession of the shop. The Appellant also pleaded and
testified that the Upper
11
(201
7) LP
ELR-43
205(
CA)
Sharia Court 11 in Appeal No: CVA/32/2002 affirmed the
decision of the Kobi Sharia Court. They pleaded and
tendered the title documents (Takardan Izinin Mallaka)
with their certified translations.
Based on the foregoing, the Appellant seeks this Court to
find that by their evidence before the trial Court they
established that the transaction between the 3rd and 2nd
Respondents was done in violation of a valid order of Kobi
Sharia Court in Suit No. 002/GADO/2002 delivered on 28th
March, 2002.
The general rule in civil cases is that the burden of proof
rests upon the party who substantially asserts the
affirmative before the evidence is gone into. The position
therefore is that the burden of proof lies on the person who
would fail, assuming no evidence had been adduced on
either side. Also in respect of particular facts, the burden
rests on the party against whom judgment would be given if
no evidence was adduced in respect of those facts. Once
that party produces the evidence that would satisfy the
Court then the burden shifts on the party against whom
judgment would be given if no more evidence was adduced.
ALHAJI SAFIANU AMINU & ORS v. ISIAKA
12
(201
7) LP
ELR-43
205(
CA)
H A S S A N & O R S ( 2 0 1 4 ) L P E L R
SC.44/2002;OYOVBIARE v OMAMURHOMU (1999) 10
NWLR (PT. 621) 23 AT 34-35 (SC)
To hand down in clarity of words, the nature and burden of
proof in civil matters, the Supreme court in OKOYE & ORS
V. NWANKWO (2014) LPELR- SC. 234/2004; held:
"The burden of proof in civil cases has two distinct
meanings, viz. (a) The first is the burden of proof as a
matter of law and the pleadings usually referred to as legal
burden or the burden of establishing a case.; (b) The
second is the burden of proof in the sense of adducing
evidence usually described as the evidential burden. While
the legal burden of proof is always stable or static the
burden of proof in the second sense i.e. evidential burden
of proof may oscillate constantly according as one scale of
evidence or the other preponderates. In a civil case, while
the burden of proof in the sense of establishing the case
initially lies on the Plaintiff, the proof or rebuttal of issues
which arise in the course of proceedings may shift from the
plaintiff to the defendants and vice-versa as the case
progresses. FEDERAL MORTGAGE FINANCE LTD V
EKPO (2004) 2 NWLR (pr. 556) 100 AT 130
13
(201
7) LP
ELR-43
205(
CA)
PER OLAGUNJU JCA; BALOGUN v. LABIRAN (1988) 3
NWLR (PT. 80) 66; NWOSU V UDEOJA (1990) 1 NWLR
(PT. 125) 188; ELEMO v. OMOLODE (1968) NMLR
359; CHIGWU v. BAPTIST CONVENTION (1958) 2 ALL
NLR 294; ADEGOKE V. ADIBI (1992) 5 NWLR (PT.
242) 410." PER PETER-ODILI J.S.C. (pp. 36-37,
PARAS. D-B)
In the instant appeal the Appellants asserted in the
affirmative that the shop the 3rd Respondent sold to the
2nd Respondent and which is occupied by the 1st
Respondent is the same one both the Kobi Sharia Court and
the Upper Sharia Court 11, Kobi; distributed and affirmed
its distribution to the late Alhaji Bala Abdullahi; whose
lawful heir the Appellant is. The burden of proof of the facts
therefore rested on the Appellant at the trial Court. To
discharge the said burden, the Appellant in line with their
pleadings gave evidence as has been summarised above in
this judgment. They tendered amongst others Exhibits PL1
and PL11. Exhibit PL1 is the Hausa version of the title
documents (Takardan Izinin Mallaka); as per the alleged
Kobi Sharia Court inheritance distribution. Exhibit PL11 is
the translated version.
On this the Respondents’ counsel in his address at
14
(201
7) LP
ELR-43
205(
CA)
the trial Court submitted that Exhibits PL1 and PL11
heavily relied on by the Appellant in proof of his case were
inadmissible because they were not certified true copies of
the order of the Kobi Sharia Court. This view was upheld by
the trial Court and as such no probative value was
accorded the said exhibits. The proof of the title documents
tendered as Exhibits PL1 and PL11 was quite material to
the success of the Appellant's case. But with the facts and
circumstances of the instant appeal, I cannot fault the
finding of the trial Court on Exhibits PL1 and PL11 which
beyond any dispute are public documents; and especially in
the light of Section 104 of the Evidence which provides
thus:
"104(1) Every public officer having custody of a public
document which any person has a right to inspect shall give
that person on demand a copy of it on payment of legal fees
prescribed in that respect, together with a certificate
written at the foot of such copy that it is a true copy of such
document or part of it as the case may be.
(2) The certification mentioned in Subsection (1) of this
Section shall be dated and subscribed by such officer with
his name and
15
(201
7) LP
ELR-43
205(
CA)
his official title, and shall be sealed, whenever such officer
is authorized by law to make use of a seal, as such copies
so certified shall be called certified copies.
(3) An officer who, by the ordinary course of official duty, is
authorized to deliver such copies, shall be deemed to have
the custody of such documents within the meaning of this
section.
From the wordings of Subsection (2) (supra), a document
can only be called a certified copy of a public document if,
in addition to the "payment of legal fees prescribed in that
respect, together with a certificate written at the foot of
such copy that it is a true copy." (Subsection 1, supra), it
(the certificate) “is… dated and subscribed by such officer
with his name and his official title"... Essentially, any
document that falls below the above mandatory
requirement is inadmissible as a certified copy of a public
document. UDOM GABRIEL EMMANUEL V. UMANA
OKON UMANA & ORS (2016) LPELR- SC. 1/2016;
OMISORE V AREGBESOLA AND ORS (2015) 15 NWLR
(PT. 1482) 205, 294; NDAYAKO V. MOHAMMED
(2006) 17 NWLR (PT. 10009) 676; TABIK
INVESTMENT LTD V. GUARANTY TRUST BANK PLC
(2011) LPELR- 3731 (SC);
16
(201
7) LP
ELR-43
205(
CA)
NWABUOKU V. ONWORDI (2006) ALL FWLR (PT.
331) 1236.
To drive home the importance and the fact that the proper
certification of a public document as required by the law
cannot be dispensed with; His Lordship Nweze JSC, stated
as follows:
"The whole essence of the Court's insistence of the
scrupulous adherence to the above certification
requirement of public document is to vouchsafe their
authenticity vis-a-vis the original copies, to third parties, G
and T. I. Ltd and Anor v. Witt and Bush Ltd (2011)
LPELR -1333 (SC) 42, C-F. That explains why, in the
absence of the original document; only such properly
certified copies are admissible as secondary copies of
public documents "but no other kind of secondary
evidence," G AND T.I. LTD AND ANOR v WITT AND
BUSH LTD (SUPRA); ARAKA V EGBUE (2003) 33
WRN 1; MINISTER OF LANDS, WESTERN NIGERIA V.
AZIKWE (1969) 1 ALL NLR 49; NZEKWU V NZEKWU
(1989) 2 NWLR (PT. 104) 373 TABIK INVESTMENT
LTD AND ANOR V. GUARANTEE TRUST BANK PLC
(2011) 6 MJSC (PT. 1) 1, 21; DAGACI OF DERE V.
DAGACI OF EBWA (2006) 30 WRN 7; ITEOGU V LPDC
(2009) 17 NWLR (PT. 171) 614, 634 ETC. Thus,
although the original copies of public documents
17
(201
7) LP
ELR-43
205(
CA)
themselves are admissible, ONOBRUCHERE AND ANOR
V ESEGINE (1986) 7 NSCC 343 AT 350; ITEOGU V.
LPDC (2009) 17 NWLR (PT. 1171) 614, 634; the only
pieces of secondary evidence in respect of the original of
such public documents that are admissible are the certified
copies thereof but no other secondary evidence,
MINISTER OF LANDS W.N. V AZIKIWE (1969) 1 ALL
N L R 4 9 ; O N O B R U C H E R E A N D A N O R . V .
ESEGINE(SUPRA); ARAKA V. EGBUE (SUPRA); SPDC
V ASWANI TEXTILE INDUSTRIES LTD (1991) 3
NWLR (PT. 180) 496, 505; OJIBAH V OJIBAH (1991) 5
NWLR (PT. 191) 296, 312; NZEKWU (1989) 2 NWLR
(PT. 104) 373; TABIK INVESTMENT LTD AND ANOR
V. GUARANTEE TRUST BANK PLC (SUPRA); DAGACI
OF DERE V DAGACI OF EBWA (SUPRA); ITEOGU V
LPDC (SUPRA) 614, 634 etc. put differently, in the
absence of the original documents themselves, only such
properly certified copies are admissible as secondary
copies of such public documents "but no other kind of
secondary evidence." G AND T.I. LTD AND ANOR V.
WITT AND BUSH LTD (2011) LPELR- 1333 (SC) 42 C-
E; ARAKA V. EGBUE (SUPRA); MINISTER OF LANDS,
WESTERN NIGERIA V. AZIKIWE (SUPRA); NZEKWU
V NZEKWU (SUPRA) TABIK INVESTMENT LTD AND
ANOR V. GUARANTEE TRUST BANK PLC
18
(201
7) LP
ELR-43
205(
CA)
(SUPRA); DAGACI OF DERE V DAGACI OF EBWA
(SUPRA); ITEOGU V LPDC (SUPRA) ETC." SEE:
EMEKA V. CHUBA-IKPEAZU & 7 ORS (2017) LPELR-
SC. 149/2016; (PP. 61-65, PARA F-C)
There is nothing more to say on Exhibits PL1 and PL11
which are public documents but to uphold the finding of the
trial Court that in so far as the said public documents were
not certified in accordance with Section 104 of the
Evidence Act; the same are inadmissible in law and were
wrongly admitted as in this appeal; the learned trial Judge
was right when he failed to accord any probative value to
them.
The Appellant equally leaned heavily on the decisions of the
Kobi Sharia Court and the Upper Sharia Court 11 as
decisions through which they claim title to the shop in
dispute. Based on the referred decisions, the Appellant
wants this Court to hold that the Respondents particularly
the 3rd and 2nd Respondents violated the decision of the
Kobi Sharia Court. This if proved will no doubt tilt the scale
of justice substantially in favour of the Appellant but
unfortunately none of these two judgments were placed
before the trial Court. The Appellant neither tendered the
judgment nor the
19
(201
7) LP
ELR-43
205(
CA)
proceedings of the referred Courts to enable the trial Court
determine whether and to what extent the 3rd and 2nd
Respondents went contrary to the alleged subsisting
decision of the competent Courts. Failure of the Appellant
to place before the Court the said judgments meant luring
the trial Court into a wild goose chase which is not
permitted in law. There was therefore nothing upon which
the trial Court would have based its decision on whether
the named Respondents violated the alleged distribution
made by the Kobi Sharia Court, and the affirmation of the
same by the Upper Sharia Court 11. The trial Court was by
the absence of the decisions in question placed in the dark
as to the decisions of Kobi Sharia Court in Suit No:
02/GADO/2002 and Upper Sharia Court 11 in Appeal No:
CVA/32/2002. From the foregoing there was in all no
documentary evidence so to say in support of the case of
the Appellant.
On the oral evidence of PW1 and PW2, PW2 under cross
examination said he does not know when the shops one of
which is in dispute were built but he knows the shops were
built by the 3rd Respondent. PW2 also said that when the
3rd Respondent sold the middle shop
20
(201
7) LP
ELR-43
205(
CA)
which is one of the shops he built to the 2nd Respondent
who subsequently sold to the 1st Respondent; that he was
one of the people that challenged the sale at the Upper
Sharia Court Bauchi in Suit No: CVA/44/2010; and that the
Upper Sharia Court upheld the sale transactions;
whereupon he as PW2 stepped out of the matter and they
did not appeal against the judgment of the Upper Sharia
Court which confirmed the 1st Respondent's title to the
shop in dispute. It is worthy to note at this point that the
Respondents produced and tendered the certified true copy
of the said Upper Sharia Court's judgment in evidence and
there is no evidence on record about any decision of a
superior Court setting aside the said judgment of the Upper
Sharia Court. The evidence of the PW1 and PW2 as
captured in the record which I have tried to x ray herein
does not in any way support the fact that the 3rd
Respondent by the sale of the shop in dispute to the 2nd
Respondent violated any known or established Court order
and in particular the order of the Kobi Sharia Court. I
therefore resolve issue 1 in favour of the Respondents and
against the Appellant.
21
(201
7) LP
ELR-43
205(
CA)
SUBMISSIONS ON ISSUE NO. 2
The learned Counsel for the Appellant contended that the
evidence of PW1 and PW2 along with Exhibits PL1 and PL2
clearly shows the existence of Suit No. 002/GADO/2002 and
referred to pages 77-80 of the records for the details of
Exhibit PL1 and PL2. He quoted the provisions of Section
124(1) (b) of the Evidence Act, 2011. He submitted that
considering the referred provision of the Evidence Act, the
evidence of PW1 and PW2 as well as Exhibits PL1 and PL2;
the learned trial judge was in error when he failed to find
for the Appellant and dismissed his claim. He cited the
cases of: LAWAN vs. YAMA (2004) 9 NWLR (PT. 877)
PAGE 138-139 PARAS. E-C; DAGASH v. BULAMA
(2004) 14 NWLR (PT. 892) PAGE 230-231 PARA. H-C;
REPTICO S.A. GENEVA VS AFRIBANK (NIG) PLC
(SUPRA) P. 208 PARAS. B-C AND NDAYAKO VS
DANTORO (2004) 13 NWLR (PT. 889) PAGE 214
PARAS. G-H; and urged the Court to resolve this issue in
favour of the Appellant.
Reacting, the learned Counsel for the Respondents argued
that the evidence of PW1 and PW2 cannot in anyway stand
in place of the record of proceedings or Certified True
Copies of the judgments or orders in the purported Suit No.
002/GADO/2002
22
(201
7) LP
ELR-43
205(
CA)
and Appeal No: CVA/32/2002. He submitted that where a
judgment of a Court is pleaded, only a record of that
judgment should be taken in evidence and not any other
person's insinuations. He referred to Section 128(1) of the
Evidence Act, 2011.
The learned Counsel contended that the Appellant's failure
to produce the CTC of the judgment of Kobi Sharia Court at
the trial Court indicates that either such decisions does not
exist at all or where it exists if produced it could be
unfavourable to the Appellant who withheld same.
He referred to Section 167 (d) of the Evidence Act (2011)
and further contended that the provisions of Section 124
(1) (b) of the Evidence Act, 2011 cannot help the argument
of the Appellant as Exhibits PL1 did not answer the
requirements of Section 104(1) and (2) of the Evidence Act,
2011. He finally submitted on this issue that all the cases
cited by then Appellant's Counsel on this issue cannot aid
his case as they rather strengthened the arguments of the
Respondents and urged the Court to so hold and resolve
the issue in favour of the Respondents.
RESOLUTION OF ISSUE NO. 2
The contention of the Appellant on this issue
23
(201
7) LP
ELR-43
205(
CA)
is that by reason of - Section 124 (1) (b) of the Evidence
Act, 2011; the learned trial Judge was in error when he did
not rely on the evidence of PW1 and PW2; and Exhibits PL1
and PL11 to find that there was in existence a Suit No.
002/GADO/2002 and that there was also an ensuing order
of the suit. Section 124 (1) (b) of the Evidence Act provides
that; proof shall not be required of a fact the knowledge of
which is not rationally open to dispute and which is -
susceptible to verification by reference to a document the
authority of which cannot logically be questioned. The
learned counsel for the Appellant urged this Court to rely
on the said Section 124 (1) (b) of the Evidence Act; to admit
the existence of Suit No. 002/GADO/2002 and its decision
based on the mere assertion of the evidence of PW1 and
PW2 of the said suit and judgment; and Exhibits PL1 and
PL11 (uncertified copies of public documents) which are
the a l leged orders emanat ing f rom Su i t No .
002/GADO/2002. This he reasoned that the said suit and its
ensuing order is subject of verification as its authority
cannot reasonably be questioned. Brilliant submission I
would say by counsel to navigate
24
(201
7) LP
ELR-43
205(
CA)
through his case, but the law unfortunately does not work
that way as the law has provided the mode of proof of a
judgment or order of a Court.
Section 128 (1) provides:
"1. When a judgment of a Court or any other judicial or
official proceeding, contract or any grant or other
disposition of property has been reduced to the form of a
document or series of documents, no evidence may be
given of such judgment or proceeding or of the terms of
such contract, grant or disposition of property except the
document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible under this
Act; nor may the contents of any such document be
contradicted, altered, added to or varied by oral evidence."
By the above provision of the Evidence Act, a party seeking
to establish the existence of a judgment of a Court must
produce the said judgment or a secondary evidence of the
same as no oral evidence is allowed to be given on the said
judgment in its proof. Following this provision therefore,
the evidence of the PW1 and PW2 on the existence and
content of the alleged decision of the Kobi Sharia Court is
inadmissible and was
25
(201
7) LP
ELR-43
205(
CA)
rightly not relied on by the trial Court.
On Exhibits PL1 and PL11, I had dealt with them while
resolving issue 1. I will only add here that as secondary
evidence of the order of the Kobi Sharia Court, they are
admissible to prove the said order only if they are certified
true copies as required by Section 105 of the Evidence Act
and in compliance with Section 104 of the Evidence Act
since the same are public documents by virtue of Section
102 of the Evidence Act. While resolving issue 1, I came to
the conclusion that Exhibits PL1 and PL11 which are public
documents were not certified in accordance with Section
104 of the Evidence Act, 2011. Failure to be certified, they
cannot in law be proof of the order of Kobi Sharia Court.
Accordingly, the learned trial Judge was right when he did
not rely on them to find for the existence of the order of the
Kobi Sharia Court. I therefore resolve issue 2 in favour of
the Respondents.
Having resolved the 2 issues in favour of the Respondents,
the appeal fails completely without restraint. The same is
therefore dismissed. I affirm the judgment of the High
Court of Bauchi State in Suit NO: BA/115/2012; delivered
26
(201
7) LP
ELR-43
205(
CA)
on 21st May, 2014.
I award a cost of N100,000.00 in favour of the 1st and 2nd
Respondents.
ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of
the Judgment just delivered by my learned brother
Onyemenam, JCA. I agree with the reasoning and
conclusion reached therein. My Lord had meticulously dealt
with all the issues raised for determination in this appeal. I
have nothing gainful to add thereto. For the reasons
contained in the said lead Judgment, I too dismiss the
appeal as lacking in merit. I adopt the consequential orders
contained in the lead Judgment, inclusive of the one made
with regard to costs.
ADAMU JAURO, J.C.A.: I have had a preview of the
judgment just delivered by my learned brother,
UCHECHUKWU ONYEMENAM, JCA. I agree with the
reasoning therein advanced to arrive at the conclusion that
the appeal lacks merit and should be dismissed.
I adopt the said judgment as mine, in dismissing the
appeal.
I endorse the order relating to costs in the lead judgment.
27
(201
7) LP
ELR-43
205(
CA)
Appearances:
S.F. DASHE For Appellant(s)
M.M. MAIDOKI with him, A.T. NASEER for 1stand 2nd Respondents. For Respondent(s)
(201
7) LP
ELR-43
205(
CA)