Bello Kwato Kwato V Alhaji Adamu Mai’gari Miji Yewa

LEGALPEDIA ELECTRONIC CITATION: LER[2018] CA/A/728/2016

AREAS OF LAW: APPEAL, COURT, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS:

The Plaintiff/Respondent at the Niger State High Court Minna, claimed against the Defendant/Appellant, the following reliefs among others: a declaration that the Plaintiff is the rightful owner and entitled to the Customary right of occupancy over the disputed land situate at Yidna Mijiyewa Village; an order for forfeiture against the Defendant and to vacate and deliver possession of the disputed land to the Plaintiff; an order of perpetual injunction restraining the Defendant, his privies, agents or whosoever that claims through him from interfering or exercising any act of trespass on the land. The Defendant/Appellant counter-claimed for the disputed land, stating that the Village head of Nukuchi village, gave the land in question to his grandfather who cleared it. The said land was inherited by the Defendant’s father Kwato-Kwato who lent a part of the land to the Plaintiff’s father at his request, but he never farmed on it. Upon the death of the Defendant’s father and the demise of the Defendant’s senior brothers, the Defendant hold the disputed land in trust for other family member hence, the counter claim for the disputed land. At the end of the trial, the court entered judgment for the Plaintiff whilst it dismissed the counter-claim of the Defendant. Dissatisfied with the trial court’s judgment, the Defendant has appealed to this court.

HELD:

Appeal Dismissed

ISSUES FOR DETERMINATION:

• Whether the lower court’s verdict is against the weight of evidence;
• Whether the plaintiff’s evidence was at variance with his pleadings vis-a-vis the disputed land’s location/identity and; if so, the legal consequence thereof;
• Whether or not the plaintiff was able to discharge the legal burden of proof placed upon him as to be entitle to judgment in this case.

RATIONES:

DECLARATION OF TITLE TO LAND – REQUIREMENT FOR THE GRANT OF A DECLARATION OF TITLE TO LAND

“Before a court can grant a declaration of title to land, there must be credible evidence describing the identity of the land with certainty. So a plaintiff who fails to establish and prove the boundaries of the land he claims, must fail in his bid, as it is a crucial aspect of his case. See Ukaegbu vs. Nwololo (supra) 233 – 234; Okwaranonobi vs. Mbadugha (2013) 17 NWLR (Pt. 1383) 255 at 278; Okoko vs. Dakolo (2006) 14 NWLR (Pt. 100) 401 and Ayuya vs. Yonrin (2011) 10 NWLR (Pt. 1254) 135.” PER A. D. YAHAYA, J.C.A.

EVALUATION OF EVIDENCE – DUTY OF A TRIAL COURT TO ASSESS AND EVALUATE ALL THE EVIDENCE PLACED BEFORE IT

“When evidence is led before a trial court, it has the duty to assess and evaluate such evidence and ascribe probative value to it, before it can arrive at a decision one way or the other. It is a sacred duty and especially placed on the shoulders of the trial court because it has the singular opportunity of seeing, hearing and observing the demeanour of witnesses as they give evidence before it. Once the trial court performs its duty correctly, an appellate court would not interfere. Therefore, where there is an appeal, the appellate court would seek to know whether there is evidence upon which the trial court based its findings, whether the evidence tendered was rightly accepted or rejected, and whether the evidence called by either party was placed on the imaginary scale and weighed in order to fathom which side preponderates. Once there is such proper valuation by the trial court, the appellate court would not interfere – Agbonifo Vs. Aiwereoba (1988) 1 NWLR (Pt. 70) 325; Okiro Vs. Obanebira (1999) 13 NWLR (Pt. 636) 535; SHA Vs. UKWAN (2000) 8 NWLR (Pt. 670) 685; Fagbenro Vs. Arobadi (2006) 7 NWLR (Pt. 978) 172 and Eze Vs. Okoloagu (2010) 3 NWLR (Pt. 1180) 183” PER A. D. YAHAYA, J.C.A.

FINDINGS  OF COURT – CONDITIONS UPON WHICH AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF A TRIAL COURT

“It is thus the law, that unless a finding of a trial court is perverse in that it was speculative to the extent that it was counter to the evidence led, or that the court took into account a matter it ought not to, or failed to take into account a matter it ought to have taken account of, thereby shutting its eyes to the obvious or where the finding occasioned miscarriage of justice, the appellate court would not interfere – Atolagbe vs. Shoram (1985) 1 NWLR (Pt. 2) 360 and Adimora vs. Ajufo (1988) 3 NWLR (Pt. 80) 1.” PER A. D. YAHAYA, J.C.A.

DECLARATION OF TITLE TO LAND – GROUND UPON WHICH A CLAIMANT WOULD FAIL IN A CLAIM FOR DECLARATION TO TITLE TO LAND

“Where a plaintiff or any claimant fails to prove the boundaries of the land he claims; he must fail in the declaration of title he seeks –Ukaegbu Vs. Nwololo (Supra) at pages 233 – 234. With this, the counter-claim could not succeed and the trial court was well grounded when it dismissed the counterclaim.” PER A. D. YAHAYA, J.C.A

  TITLE TO LAND – WAYS OF PROVING TITLE TO LAND

“Now a plaintiff, who is claiming a declaration for the title to land, has five ways or means of proving same. They are-

(a)  traditional evidence usually based on the history of the people;

(b)  production of title documents duly authenticated;

(c)  acts of selling, leasing, renting out all or part of the land, farming on or portion of it;

(d)  acts of long possession and enjoyment of the land; and

(e)  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.

See Idundun vs. Okumagba (1976) 9 – 10 SC 227; Ajiboye vs. Ishola (2006) 13 NWLR (Pt. 998) 628 at 651 – 652; Mani vs. Shanono (2006) 4 NWLR (Pt. 969) 132; Obinache vs. Akusobi (2010) 12 NWLR (Pt. 1208) 383 and Otukpo vs. John (2012) NWLR (Pt. 1299) 357 at 376. It is to be noted that only one method out of the stated five methods, is enough to prove title to land –Alli vs. Alesinoye (2000) 6 NWLR (Pt. 660) 177 and Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) 745.” PER A. D. YAHAYA, J.C.A.

PROOF OF TITLE TO LAND BY TRADITIONAL HISTORY- WHETHER PARTY WHO FAILS TO DISCHARGE HIS BURDEN TO PROVE HIS ROOT OF TITLE BY WAY OF TRADITIONAL HISTORY CAN TURN AROUND TO RELY ON ACTS OF POSSESSION OR OWNERSHIP

“If a party pleads and relies on traditional history as proof of root of title and fails to discharge the burden of proof, he cannot turn round and rely on acts of possession or ownership. See Awodi vs. Ajagbe (supra) at page 599 D, and Udeze vs. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160.” PER A. D. YAHAYA, J.C.A.

CLAIM FOR TITLE TO LAND – INSTANCE WHEN A CLAIM FOR TITLE TO LAND WILL FAIL

“If pleadings and evidence of devolution of the land in dispute are not reliable, credible or plausible, the claim for title will fail – Eze vs. Atasie (2000) 6 SCNJ 209.” PER A. D. YAHAYA, J.C.A.

CLAIM FOR DECLARATION OF TITLE TO LAND – BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND

“Again, although it is the law that in an action for declaration of title to land, a plaintiff must succeed on the strength of his case and not on the weakness of the defence because it is a discretionary relief and he has the burden of proof and will lose if no evidence is led, where the case of the defendant supports the case of the plaintiff, the plaintiff can take advantage of same in order to prove and establish his claim – Mogaji vs. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt. 7) 393 and Wolchem vs Gudi (1981) 5 SC. 291.” PER A. D. YAHAYA, J.C.A.

CROSS-EXAMINATION- IMPLICATION OF A FAILURE TO SUBJECT A WITNESS TO CROSS-EXAMINATION ON HIS EVIDENCE

“Where a witness is not subjected to cross-examination on his evidence, then that evidence is deemed accepted and the court will be entitled to act on it, as it is a tacit acceptance of the evidence. See Gate vs. Paye (2003) 8 NWLR (Pt. 823) 588; Egwumi vs. State (2013) 13 NWLR (Pt. 1372) 525 and F.R.N vs. Sani (2014) 16 NWLR (Pt. 1433) 299.” PER A. D. YAHAYA, J.C.A.

LOCUS IN QUO – WHETHER A TRIAL COURT IS BOUND TO VISIT THE LOCUS IN QUO IF REQUESTED BY PARTIES

“On locus in quo, the law is that it is the duty of the trial court to visit the locus in quo where there is a conflict of evidence as to the existence or otherwise of something material to the case and such a visit would resolve the conflict in evidence or clear a doubt as to the accuracy of any piece of evidence on the subject. It is a discretion of the court to make such a visit or not – Nwankpu vs. Ewulu (1995) 7 NWLR (Pt. 407) 269 and Ukaegbu vs. Nwololo (supra). The court is not bound to visit the locus in quo even if requested by parties. It depends upon the evidence and the court.” PER A. D. YAHAYA, J.C.A.

 

STATUTE REFERRED TO:

Evidence Act 2011