BAMANGA ALH. USMAN V BAPPANYO ABBA KILANGE

Legalpedia Citation: (2015-07) Legalpedia (CA) 21111

In the Court of Appeal

Holden At Yola

Wed Jul 1, 2015

Suit Number: CA/YL/79/2014

CORAM

PARTIES

BAMANGA ALH. USMAN

APPELLANTS

BAPPANYO ABBA KILANGE

RESPONDENTS

AREA(S) OF LAW

APPEALS, LAND LAW, LAW OF EVIDENCE, CIVIL PRACTICE AND PROCEDURAL LAW, CUSTOMARY LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the judgment of the High Court of Adamawa State sitting in its appellate jurisdiction. The Appellant as Plaintiff had instituted a civil claim against the Respondent as Defendant before the Area Court Pariya, which was subsequently transferred to the Grade 1 Area Court Girei claiming declaration of title to the land in dispute situate and lying at Pariya in Wuro Mu’o in Adamamwa State. The case of the Appellant before the trial Area Court was that the land in dispute was founded by his grandfather, who was also the ruler of Pariya and upon his death it devolved on his father and upon his death to the Appellant. The Respondent later conspired with some persons, to challenge the title of the Appellant before the Secretary of the Adamawa Emirate Council, where the District head confirmed that the land in dispute was not a public land “Baital” but belonged to the Appellant, who thereupon sued the Respondent for title to the land in dispute. At the trial before the trial Area Court Girei, the court found in favour of the Appellant as Plaintiff in its judgment. The Respondent as Defendant who was dissatisfied with the judgment of the Area Court Girei had promptly appealed against the said decision to the Upper Area Court 1 Yola, which upon hearing of the appeal also found in favour of the Appellant as Respondent and dismissed the appeal by its judgment. The Respondent as Appellant was still dissatisfied with the judgment of the Upper Area Court 1 Yola and had promptly appealed against it to the High Court of Adamawa State, the Court below, which upon hearing the appeal, allowed the appeal and set aside the concurrent decisions of the Area Court Girei and the Upper Area Court 1 Yola and granting title to the land in dispute to the Respondent as Appellant, hence this further appeal to this court by the Appellant, who was the Respondent before the court below.

HELD

Appeal allowed.

ISSUES

“Whether from the circumstances of this case and the totality of evidence before the trial court was the learned Judge of the High Court of Justice, Adamawa State right when he set aside the judgments of the lower courts and declared the Respondent as the beneficial holder of title, interest and /or right in and over the disputed land”

RATIONES DECIDENDI

APPELLATE COURT – CIRCUMSTANCES IN WHICH AN APPELLATE COURT CAN INTERVENE TO RE-EVALUATE EVIDENCE

These diametrically opposing contentions raise in a very frontal way the very vexed issue of when can an appellate court intervene to re–evaluate the evidence in the printed record in coming to its conclusion in an appeal before it? The circumstances in which an appellate court can intervene varies from case to case and would ultimately depend on the peculiar facts of each case and therefore, such circumstances cannot be laid down with any tinge of exhaustive finality by the courts though some useful guides have been proffered over the years by the courts.

An appellate court will readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions drawn by the court below or a trial court on the proved facts before it do not flow from such proved facts or runs contrary to such prove facts and was thus perverse. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307, where it was stated thus:

“ A decision is said to be perverse when it is speculative not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law and an appellate court can interfere with a decision of the trial court that is perverse.”

PER – BIOBELE ABRAHAM GEORGEWILL JCA

APPELLATE COURT – THE LIKELIHOOD OF AN APPELLATE COURT INTERVENING TO RE-EVALUATE EVIDENCE

An appellate court will likewise readily intervene to re- evaluate the evidence in the printed record of appeal where it would not involve the assessment of credibility of witnesses and in such circumstances the appellate court is in good a position as the trial court to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings of facts on the admitted and proved facts which the trial court had failed to do. See Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 @ pp. 1820 – 1821. PER – BIOBELE ABRAHAM GEORGEWILL JCA

BURDEN OF PROOF – BURDEN OF PROOF ON THE PARTY WHO RELIES ON TRADITIONAL HISTORY TO CLAIM TITLE TO A DISPUTED LAND

The Appellant who had relied on traditional history of title to the land in dispute had the burden of proving by credible evidence who founded the land, how it was founded and the names of intervening successors through whom he claims title to the land in dispute. See Nruamah V. Ebuzoeme (Supra) @ p. 1442. See also Falomo V. Onakeme (2005) 11 NWLR (Pt. 935) 125 @ P. 135; Lawson Alli V. Chief Gbadamasi (2006) 6 NWLR (Pt. 660) 177 @ p. 223; Oyadare V. Keji (2005) 7 NWLR (Pt. 925) 571; Alade V. Awo (1975) 1 SC 215; Ani V. Ewo (2004) 1 SC (Pt 11) 115. PER – BIOBELE ABRAHAM GEORGEWILL JCA

TITLE TO LAND – A PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE AS WELL AS IN OTHER CIVIL CASES MUST SUCCEED ON THE STRENGHT OF HIS OWN CASE

I am not unmindful or unaware of and have duly averted my mind to the well established principle of law that in an action for declaration of title, as in other civil cases, a Plaintiff must succeed on the strength of his own case as made out credibly in the evidence put forward by him in support of his case and not to rely on the weakness or even absence of the Defendant’s case. However, where the evidence of the Defendant supports the case of the Plaintiff and vice versa if I should venture to add, the Plaintiff is perfectly entitled to rely on such evidence, likewise if i may also add for the Defendant. See Nsirim V. Nsirim (2002) FWLR (Pt. 96) 433 @ p. 441. PER – BIOBELE ABRAHAM GEORGEWILL JCA

EVIDENCE – WHAT IS GOOD EVIDENCE

The law is that evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the court should act. See Igbinovia V. Agboifo (2002) FWLR (Pt. 103) 505 @ p. 514. PER – BIOBELE ABRAHAM GEORGEWILL JCA

CONCLUSIVE EVIDENCE – PROOF OF TITLE TO LAND MADE BY TRADITIONAL HISTORY OF TITLE, IF MADE OUT IS CONCLUSIVE AND SUFFICIENT

In law, a party who by credible evidence makes out his case of title to land by means of evidence of traditional history of title is entitled on such proof alone to a declaration of title to the land in dispute. In other words, there is no further onus or duty on such a party, as in the instant case the Appellant to prove, in addition to his already proved traditional history of title to the land in dispute, any of the other four modes of proof of title to land. Simply put, proof of title to land in dispute by means of traditional history of title if made out is both conclusive and sufficient. See Aigbobahi V. Aifuwa (2006) All FWLR (Pt. 303) 202 @ p. 213. See also Oyekan V. Oyewole (2012) All FWLR (Pt.623) 1991 @ pp. 2001 – 2002. PER – BIOBELE ABRAHAM GEORGEWILL JCA

CUSTOMARY OFFENCE – WHETHER OR NOT IT IS A CUSTOMARY OFFENCE FOR A TENANT TO CHALLENGE THE ALLODIA RIGHTS OF HIS OVERLORD BY REASON OF LOND POSSESSION

Indeed, in most customary laws of the diverse peoples of this Country it is regarded as a customary “offence” or malfeasance or serious misconduct or “sin” for which such a permitted tenant or customary tenant or user will be liable to forfeiture should he turn round to challenge the allodia rights of his overlord by reason of his long possession of the land. This even should have been the sure fate or rather the “misfortune” of the Respondent for even challenging the title of his overlord by reporting the Appellant to the Adamawa Emirate Council claiming that the land in dispute was for public use “Baital” and not belonging to the Appellant. See Amadi V. Amadi (2012) All FWLR (Pt. 626) 559 @ p. 580, where it was held thus:

“A tenant or customary tenant does not because of long possession become the owner of the land he was permitted by the land owner to enter and farm on. The moment the tenant sets up rival title to defeat the allodia right of the overlord he commits a serious misconduct and becomes a trespasser liable to forfeiture”

PER – BIOBELE ABRAHAM GEORGEWILL JCA

TITLE TO LAND – WHETHER OR NOT IT IS SUFFICIENT PROOF WHERE A PARTY CLAIMING TITLE TO LAND AND RELIES AND TRACES HIS ROOT OF TITLE TO HIS FATHER UNCHALLANGED

The law is well settled that where a party claims title to land and relies on and traces his root of title to his father and it is not challenged or controverted by the adverse party, as in the instant case, it is sufficient and there is no further duty of that party to plead and prove the original founder of the land. See Anukam V. Anukam (2008) All FWLR (Pt. 413) 1255 @ pp. 1267 – 1269. PER – BIOBELE ABRAHAM GEORGEWILL JCA

MATERIAL FACTS – MATERIAL FACTS IS THE KEY TO THE DETERMINATION OF DISCREPANCY F EVIDEDNCE

Materiality of facts is the key to the determination of whether one piece of evidence contradicts another and not minor discrepancy on irrelevant issues. See Unipetrol Nig. Plc. V. Adireje (2004) All FWLR (Pt. 231) 1238 @ p. 1277.  In Bassey V. The State (2012) All FWLR (Pt. 633) 1816 @ p. 1832, where it was stated thus:

 “One evidence contradicts another evidence when it says the opposite of what the other evidence has stated and not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts.”  PER – BIOBELE ABRAHAM GEORGEWILL JCA

ORAL HISTORY – THE POSITION OF THE LAW ON ORAL HISTORY

At any rate, it is a truism that history, particularly oral history by words of mouth changes as it passes from one mouth to the other. Thus, if the changes are not material but minor discrepancies, the court will not pay undue attention to it as was done by the court below but will rather take it as going to no issue and ignored. It is only where the contradictions relate to material aspect of the traditional history that such evidence must be rejected. See Agaka V. Ayilara (2012) All FWLR (Pt. 608) 899 @ p. 937. See also Nwokidu V. Okanu (2010) All FWLR (Pt. 522) 1633 @ p. 1661. PER – BIOBELE ABRAHAM GEORGEWILL JCA

INADMISSIBLE EVIDENCE – THE POSITION OF THE LAW ON REJECTION OF INADMISSIBLE EVIDENCE ON APPEAL

The question that arises from the rejection of such inadmissible evidence on appeal is simply whether with the rejection of the inadmissible evidence the Appellant’s case remained proved or unproved since a court of law is under a duty to act on legally admissible evidence only. In other words, is the evidence left after the rejection of the inadmissible evidence sufficient or insufficient in proof of the case of the party in whose favour the inadmissible evidence had been acted upon by the trial court? If without the inadmissible evidence there was sufficient evidence to support the findings or conclusion of the trial court, such a finding or conclusion stands and will not be disturbed by the appellate court. See Aboyemi V. Momoh (1994) 4 SCNJ (Pt. 2) 302 @ p. 312. See also F.R.N V. Usman (2012) All FWLR (Pt. 632) 1693 @ p. 1695, where the Supreme Court pronounced with finality thus:

“Inadmissible evidence is of no moment even where it is wrongly admitted either by consent of the parties or without objection by the other party. Such evidence is liable to be expunged even by an appellate court or likewise discountenanced.” PER – BIOBELE ABRAHAM GEORGEWILL JCA

INADMISSIBLE EVIDENCE – WHAT A PARTY RAISING THE ISSUE OF WRONGFUL ADMISSION OF INADMISSIBLE MUST SHOW

At any rate, the law is well settled that a party raising the issue of wrongful admission of inadmissible evidence, as in the instant case the Respondent, must show that without such evidence the decision of the trial court would have been otherwise and therefore resulted into a miscarriage of justice. PER – BIOBELE ABRAHAM GEORGEWILL JCA

APPELLATE COURTS – WHETHER OR NOT AN APPELLATE COURT SHOULD RESPECT THE VIEWS OF A TRIAL COURT

The law is well settled that an appellate court should respect the views of a trial court and not to readily substitute its own views except where it is shown that the conclusion reached is perverse. See Sa’eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ p.1681. PER – BIOBELE ABRAHAM GEORGEWILL JCA

APPELLATE COURTS – THE PRIMARY FUNCTION OF ASSESSING THE QUALITY OF EVIDENCE ASCRIBING PROBATIVE VALUE IS THAT OF THE TRIAL COURT

An appellate court or a court exercising appellate jurisdiction must always bear it in mind that the primary function of assessing the quality of evidence and ascribing probative value thereto is that of the trial court, which heard and saw the witnesses testify. See Layinka V. Makinde (2002) FWLR (Pt. 109) 1557 @ p. 1570. See also Martins V. C.O.P. (2013) All FWLR (Pt. 666) 446 @ p. 460. PER – BIOBELE ABRAHAM GEORGEWILL JCA

POSSESSORY RIGHT – PERMITTED POSSESSORY RIGHT OVER A LAND CANNOT RIPEN INTO OWNERSHIP

In law such a mere permitted possessory right over a land, contrary to the findings by the court below, no matter how long cannot ripen into ownership in favour of the Respondent. See Sanya V. Suaman (2012) All FWLR (Pt. 618) 917 @ p. 957, where Mbaba JCA., had captured the essence of this finer principle of land law thus:

“Of course the evidence of long possession of the land by the Appellant’s grandfather and his sons did not extinguish the proprietary rights of the Respondent in the land, so long as the possessory rights of the Appellant’s grandfather were traceable to the benevolence of the Respondent’s father”

PER – BIOBELE ABRAHAM GEORGEWILL JCA

LONG POSSESSION – WHETHER OR NOT LONG POSSESSION CAN RIPEN INTO OWNERSHIP

This is because the law is settled that long possession, no matter how extensive, cannot ripen into ownership against the interest of the true owner. Long possession does not confer title on a party where another traces his title to the true owner unless such possession is of such a nature as to oust the title of the true owner by acquiescence.  See: Awara V Alalibo (2002) LPELR-646(SC); (2002) 18 NWLR (Pt. 799) 484; Mogaji V Cadbury Nig. Ltd (1985) LPELR-1889(SC); (1985) NWLR (Pt. 7) 393. PER – JUMMAI HANNATU SANKEY, J.C.A.

POSSESSION – POSSESSION IS A PRESUMPTION WHICH CAN BE DEFEATED

Possession may under Section … of the Evidence Act give a presumption of ownership but it does not do more and cannot stand when another proves a good title. It is thus a presumption which can be defeated, as it is really more of a weapon of defence than offence. More so that evidence before the trial Court had even shown that the Respondent’s grandfather was put into this possession by the Appellant’s grandfather.  PER – JUMMAI HANNATU SANKEY, J.C.A.

APPELLATE COURT – WHETHER OR NOT AN APPELLATE COURT CAN SUBSTITUTE ITS OWN VIEWS OF THE EVIDENCE FOR THAT OF THE TRIAL JUDGE

The law is settled that it is not business of an appellate court to substitute its own views of the evidence for that of the trial Judge who had the singular opportunity of listening to the witnesses and watching them. However, an appellate court could in the interest of justice, disturb, alter, reverse or set aside the lower court’s findings of facts under certain circumstances. Among such circumstances are:

1. Where the trial court fails to evaluate the evidence before it; or

1. Where the trial court has drawn wrong inferences from the primary facts found; or

III. The facts found by the trial court are wrongfully applied to the circumstances of the case or the findings of fact are not reasonably justified or supported by the evidence given in the case.

See Sapo V Sunmonu (2010) LPELR-3015(SC); (2010) 11 NWLR (Pt. 1205) 374; Ezeafulukwe V John Holt Ltd (1996) 2 NWLR (Pt. 432) 511; Kuforiji V VYB Nig. Ltd (1981) 6-7 SC 40. PER – JUMMAI HANNATU SANKEY, J.C.A.

FINDINGS OF FACTS – WHETHER OR NOT THE FINDINGS OF FACTS BY A TRIAL COURT SHOULD BE DISTURBED BY AN APPELLATE COURT

The practice is well established that the concurrent findings of fact by the trial Court and subsequent courts, such as in this case, the Upper Area Court sitting in its appellate jurisdiction, should not be disturbed by another appellate court where there is sufficient evidence to support them, unless there is a miscarriage of justice and violation of some principles of law and procedure by the two lower Courts which are glaring on the fact of the Record. This is not the position in this case. In the circumstances, the Appellant has not shown sufficient reason why this Court should interfere with the impeccable findings of the two lower Courts. See Atuyeye V Ashamu (1987) 1 NWLR (Pt. 49) 267; Nwakide V Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ibodo V Enurofia (1980) 5-7 SC 42. PER – JUMMAI HANNATU SANKEY, J.C.A.

CASES CITED

STATUTES REFERRED TO

Evidence Act 2011

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