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Kwari v. Rago

ALHAJI ABAN MARARRABAN KWARI

V

LIVINUS RAGO

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided and Read the Lead Judgment )

RABIU DANLAMI MUHAMMAD, JCA

MAHMUD MOHAMMED, JCA

CA/K/24/95

THURSDAY, 15TH JUNE, 2000.

ACTION - Declaration of title to land - Onus of proof - How discharged Need for plaintiff to succeed on the strength of his case and not on weakness of the defence - Effect of evidence supplied by the defence which supports plaintiff’s case

APPEAL - Issue - Appellant or court raising issue for the first time on appeal on a document relied upon by the trial court - Propriety of

COURT - Area Court - Whether bound to follow the strict rules of the Evidence Act

DOCUMENTS - Relying on defective documents - Effect

DOCUMENTS - Relying on documents not tendered before the court Irregularity of

EVIDENCE - Area Court - Whether bound to follow the strict rules of the Evidence Act

LAND LAW - Customary grant or gift of land -Evidence of - Whether proof by documentary evidence necessary

LAND LAW - Customary right of occupancy - Grant of - Condition precedent -  Section 6(3) Land Use Act

LAND LAW - Declaration of title - Competing claims for - Best method for weighing the evidence of the parties

LAND LAW - Declaration of title - Onus of proof - How discharged - Need for plaintiff to succeed on the strength of his case and not the weakness of the defence - Effect of evidence supplied by the defence which supports plaintiff’s case

LAND LAW - Declaration of title - Proof of - Where competing claimants trace their title to a common root of title - Basic criterion for determining who has a better title

LAND LAW - Declaration of title against person in possession - What plaintiff ought to prove

LAND LAW - Land - Declaration of title - Proof of - Where competing claimants rely on a common root of title - Basic criterion for determining who has a better title

PRACTICE AND PROCEDURE - Documents - Relying on documents not tendered before the court - Irregularity of

PRACTICE AND PROCEDURE - Evidence - Declaration of title - Competing claims for - Best method of weighing the evidence of the parties

PRACTICE AND PROCEDURE - Evidence - Declaration of title - Burden of proof - How discharged - Effect of evidence supplied by the defence which supports plaintiff’s case

PRACTICE AND PROCEDURE - Issue - Argument of from two separate fronts or in the alternative - Propriety of

PRACTICE AND PROCEDURE - Onus of proof - How discharged - Need for plaintiff to succeed on the strength of his case and not on the weakness of the defence which supports plaintiff’s case

PRACTICE AND PROCEDURE - Preliminary objection - What qualifies to be heard as - Nature and purpose of

WORDS AND PHRASES - ‘Qui prior est tempore potior est jure’ - Meaning and purport of

Issues:

  1. Whether the appellant on whom the onus and burden of proof lay successfully proved his title to the disputed land.
  2. Whether the learned justices of the High Court misdirected themselves, when they held that the trial judge was wrong in relying on the documents of title presented by the plaintiff/ appellant.

Facts:

The plaintiff, now appellant, before Kachia Area Court No. 1, claimed title to a parcel of land given to him five years ago against the defendant, now respondent.  The piece of land was allegedly given to the plaintiff/ appellant by Sarkin Kachia.  The defendant/respondent claimed that he has been in possession of the land nine years ago when he first cleared the land and that he was put into possession of the land by the then district head. The plaintiff was successful at the trial court.  The defendant appealed to the Kachia Upper Area Court and failed.  He further appealed to the High Court and his appeal was allowed.  The plaintiff, being dissatisfied has appealed to the Court of Appeal, Kaduna.