CORAM

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Ali Abubakar Babandi Gumel Justice Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

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PARTIES

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ABDULKARIM (SUING FOR HIMSELF AND ON BEHALF OF TIL GADAN FAMILY)

APPELLANTS 

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1. STEPHEN ALU

2. YAKUBU ADAQA

3. MUSA NDIRIKALU

4. IJAFIYA MIJI

RESPONDENTS 

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AREA(S) OF LAW

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LAND LAW, TRADITIONAL HISTORY, EVIDENCE, TITLE TO LAND, PROPERTY LAW, PROCEDURE, COUNTER-CLAIM, APPEAL, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The case revolves around a dispute over land situated at Mova-Tuful Village in Askira/Uba Local Government Area of Borno State. The Appellant calls the land “Tsulugu,” while the Respondents refer to it as “Mova-Tuful land.” The Appellant claimed to be the rightful owner of the disputed land, asserting that his great, great, great grandfather, Til Gadan, cleared the land and reserved approximately 150 hectares for strangers. According to the Appellant, his late father, Karimu Wakura, inherited the land and allowed the Respondents to settle and farm on the portion in dispute (about 75 hectares) approximately 65 years ago.

Conversely, the Respondents contended that about 200 years ago, their forbears, who were on a hunting expedition and were also farmers, discovered a thick forest and bush far from human settlement. They settled there and named the place Mova-Tuful. The Respondents claimed the land devolved onto their children and down to them, and that they had remained in long and continuous possession of the land without let or hindrance for over 65 years.

At the High Court, the Appellant (as Claimant) sought a declaration that he, on behalf of the Til Gadan family, was the rightful owner of the disputed land, an order for perpetual injunction against the Respondents, general damages, and costs. The Respondents counter-claimed, seeking a declaration that they were the owners of the entire farmland measuring about 150 hectares situated at Mova-Tuful village. After a plenary trial with the Appellant calling four witnesses and the Respondents calling seven, the trial Court dismissed the Appellant’s claim and entered judgment for the Respondents on their counter-claim. Dissatisfied, the Appellant appealed

 

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HELD

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1. The appeal was dismissed, and the judgment of the trial Court was affirmed.

2. The Respondents’ counter-claim was held to be competent and properly brought in accordance with the stipulations of the High Court of Borno State (Civil Procedure) Rules, 2017.

3. The Court found that the Appellant failed to displace the presumption that the conclusions of the trial Court on the facts were correct in order to upset the judgment.

4. The Court held that the trial Court properly evaluated the evidence and found that the evidence led by the Respondents was more direct, cogent, and explicit than that offered by the Appellant.

5. Costs of N100,000.00 were awarded in favor of the Respondents.

 

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ISSUES

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1. Whether or not the trial Court properly considered the evidence placed before it by the Appellant to warrant him the relief sought?

2. Whether or not the trial Court was right in dismissing the Appellant’s claim and granting the counter-claim of the Respondents, having regard to evidence adduced by both parties?

3. Whether or not the Respondents’ Counter-Claim is competent?

 

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RATIONES DECIDENDI

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COUNTER-CLAIM – NATURE AND STATUS OF A COUNTER-CLAIM IN LEGAL PROCEEDINGS

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“It is rudimentary law that a counter-claim is a separate, independent, and distinct action. It is different from the main claim. In a counter-claim, the parties in the main action are in reverse order. The claimant becomes the defendant, while the defendant becomes the claimant or more appropriately, counter-claimant.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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MANNER OF BRINGING A COUNTER-CLAIM – COMPLIANCE WITH RULES OF COURT

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“By the above provision, a defendant can incorporate a counter-claim in his statement of defence and would only be required to add a further title to it where the counter-claim raises questions as between himself and other persons along with the claimant. The Respondents’ counter-claim is subjoined to their Statement of Defence (see pages 24-44 of the Records of Appeal). It does not raise any questions involving the Appellant as Claimant and any other person. The Respondents separated the part of the Statement of Defence constituting the defence to the Appellant’s claim from the part that is their counter-claim and appropriately headed the same as Counterclaim. (See pages 24-29 and 30-31 of the Records of Appeal). This is the recognised and accepted practice on how to embody a counter-claim in a statement of defence.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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RULES OF COURT – PURPOSE AND APPLICATION OF RULES OF COURT IN ADMINISTRATION OF JUSTICE

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“Rules of Court are meant to be obeyed because they provide support in the administration of justice. However, it must be understood that being rules or regulations made to assist the Court in its effort to determine issues or controversies before the Court, care must be exercised in order to avoid the elevation of rules of Court to the status of a statute because rules of Court are subsidiary instrument. Consequently, rules of Court are to be used by the Courts to discover justice and not to hamper the actualization of justice. In other words, rules of Court are not sine qua non in the just determination of a case and therefore not immutable.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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SUBSTANTIAL JUSTICE – AVOIDANCE OF TECHNICAL JUSTICE

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“The zeitgeist of the Courts is to do substantial justice and avoid technical justice, which is no justice at all. Courts of law now avoid being unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not when it is impeded with mere technical procedural irregularities that occasioned no miscarriage of justice.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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EVIDENCE IN COUNTER-CLAIM – EVIDENCE USED TO DEFEND MAIN CLAIM AND PROSECUTE COUNTER-CLAIM

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“From the Respondents’ pleadings, the facts on which they predicated their defence to the Appellant’s action are interwoven with the facts on which they founded their counter-claim. One trial was conducted for both, the main claim and the counter-claim. The facts and evidence used to defend the main claim are the same facts and evidence used to prosecute the counter-claim. The evidence was not pitchforked as evidence on the defence in the main claim and evidence on the counter-claim. In such circumstances, when the Respondents and their witnesses adopted their respective witness statements on oath and testified, their evidence was both in support of the defence to the Appellant’s claim and in support of the counterclaim.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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CROSS-EXAMINATION – VALUE AND POTENCY OF CROSS-EXAMINATION IN LITIGATION

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“The arcane nature of cross-examination makes it a veritable and potent tool in the arsenal of the wily advocate. The arcanum arcanorum of cross-examination is such that it can be effectively utilised to arrive at the truth of a matter in controversy.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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PROOF OF TITLE TO LAND – FIVE WAYS OF PROVING TITLE OR OWNERSHIP OF LAND

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“The facts of this matter are not convoluted. They are simple and straightforward. There is a claim and a counter-claim. This being so, both the Appellant and the Respondents have the burden of establishing their respective claim and counter-claim by any of the five ways of proving title or ownership of land laid down in IDUNDUN vs. OKUMAGBA (1976) NMLR 200 at 210-211, id est:

1. Proof by traditional evidence.

2. Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody.

3. Proof by acts of ownership, in and over the land in dispute.

4. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership.

5. Proof by 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 (the contiguity rule).” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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IDENTITY OF DISPUTED LAND – WHEN PROOF OF IDENTITY OF DISPUTED LAND IS NOT NECESSARY

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“The rudimentary law and a general principle of law is that a claimant who claims ownership of land must prove the identity of the disputed land. This is to enable the Court to know the exact disputed land to enter judgment for him if he can prove title. However, it must be remembered that in this matter, there was a claim and a counter-claim over the disputed land; so, the Respondents, as counter-claimants, equally had to prove the identity of the land to which their counter-claim relates. Howbeit, this general principle of law is not cast in stone. Where the identity of the disputed land is not in issue or where there is enough evidence for the Court to infer the identity of the land, proof of the identity of the land will not be necessary. In such a situation, there is no burden to prove the identity of the land.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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EVALUATION OF EVIDENCE – PRIMARY DUTY OF TRIAL JUDGE IN EVALUATING EVIDENCE

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“The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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APPELLATE INTERFERENCE – WHEN APPELLATE COURT WILL NOT INTERFERE WITH FINDINGS OF TRIAL COURT

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“It is trite law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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TRADITIONAL HISTORY – CONTRADICTIONS IN EVIDENCE OF TRADITIONAL HISTORY

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“The Court does not reject the evidence of a party simply on minor contradictions. This is more so especially in situations where proof is based on evidence of traditional history, as it is in the case at hand; there are bound to be slips in the evidence of witnesses; absence of such would certainly give reason for casting doubts on the credibility and the truth of the witnesses. Traditional history of witnesses cannot come out in mathematical exactness or exactitude.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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CONFLICTING TRADITIONAL HISTORY – HOW TO RESOLVE CONFLICTING EVIDENCE OF TRADITIONAL HISTORY

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“The dispute was all as to traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and seeing which of two competing histories is the more probable.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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BURDEN ON APPELLANT – ONUS ON APPELLANT TO SATISFY APPELLATE COURT THAT DECISION ON APPEAL IS WRONG

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“The onus is on an appellant to satisfy the appellate Court that the decision on appeal is wrong. Where this is not done, the decision appealed against will be allowed to stand.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• High Court of Borno State (Civil Procedure) Rules, 2017

• Evidence Act

 

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