Legalpedia Citation: (2023-06) Legalpedia 99626 (CA)

In the Court of Appeal

MAKURDI JUDICIAL DIVISION

Tue Jun 6, 2023

Suit Number: CA/MK/03/2018

CORAM

MOHAMMED AMBI-USI DANJUMA JCA

BIOBELE ABRAHAM GEORGEWILL JCA

IBRAHIM WAKILI JAURO JCA

PARTIES

DANJUMA JAZHINBWA

APPELLANTS

RABO SABA

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, LAND, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Respondent as Claimant at the trial court claimed that the land in dispute was deforested by their forbear, one Iya Ushafa, who built a farmstead and farmed thereon for decades without let or hindrance and when he became aged, he left the land for his children. One of the sons became the head of affairs and left it to one of his brothers when he became sick and left. The Respondent’s family has continued to farm on the land in dispute until one Pastor Abraham Aruwa trespassed and cleared a portion of the land claiming that the Appellant’s family gifted it to him. He was warned to stay off the land by Pastor Ayuba Saba vide his letter informing him that the land in dispute belongs to the Respondent’s family. However, the Appellant’s family whilst continuing in their trespass planted beacons on the land, hence the action before the lower Court to check their unlawful interference with the Respondent’s family land, now put in dispute by the Appellant’s family. The Appellant’s family made a counterclaim which they later abandoned.

The lower Court delivered its judgment, in which it granted some of the claims of the Respondent as Claimant. The Appellants were dissatisfied with the decision hence this appeal.

 

HELD

Appeal dismissed

ISSUES

Was the lower Court not in error of law when it held that the contradictions that were inherent in the Respondent’s traditional evidence were immaterial considering the fact that the said contradictions which bear disjointed traditional evidence were names of family members of the Respondent?

Was the lower Court trial Court not in error of law when it held that the Respondent had discharged the burden of proof placed on him thereby occasioning a miscarriage of justice by improper evaluation of the parties’ pieces of evidence?

Whether the lower Court was not in error of law when it held that the admission by DW1 during cross-examination of receiving a note from Ayuba Saba one of the Respondents relations amounted to trespass?

 

RATIONES DECIDENDI

TITLE TO LAND – WAYS OF PROVING TITLE TO LAND

…in law in a claim for declaration of title, a Claimant as well as a Defendant/Counter-Claimant claiming declaration of title to land has open to him five ways by which to prove his title to the land in dispute. These five ways, which have crystallized over the years in a long line of decided cases as are replete in our law reports are each if proved by credible and cogent evidence sufficient to ground title in the party who so claims, are namely: Evidence of traditional history of title, By production of title documents, By acts of ownership, By acts of possession long enough to warrant the person in possession as the owner, By acts of possession of adjoining or adjacent land in such a way as would make it probable that the owner of the adjoining or adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Abubakar V. Fulani (2022) LPELR-57048 (CA) per Sir Biobele Abraham Georgewill JCA, Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612, Ojah V. Eviawure (2000) FWLR (Pt. 57) 163, Okore V. Onuyejuwa (2001) FWLR (Pt. 41) 1820. – Per B. A. Georgewill, JCA

PLEADINGS – CONDUCT OF PARTIES AND THE COURT IN RELATION TO PLEADINGS

In law, the parties are bound by the pleadings and are thus obligated to and must conduct their cases within the confines of their pleadings. The Court is also bound by the pleadings of the parties and therefore, cannot go out of the issues as joined by the parties to make findings on facts not put in issue by the parties. See Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769. See also George V. Dominion Flour Mills Ltd(1963) NLR 74, Emegokwue V. Okadigbo (1973) 4 SC 113, Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313. – Per B. A. Georgewill, JCA

DECLARATORY REIEF – WHERE THE CLAIM IS FOR A DECLARATORY RELIEF

“I am aware that since a claim for declaration of title to land is by its nature a declaratory relief, a Claimant as well as a Defendant/Counter-Claimant claiming title to land must succeed on the strength of his own case and not on the weakness of the other party’s case. However, this does not rule out the fact that a party is legitimately and perfectly entitled to make use of evidence from the other party that supports his own case.

See Nruamah v. Ebuzoeme (2013) 1 SCNJ 128. See also Abubakar v. Fulani (2022) LPELR-57048 (CA) per Sir Biobele Abraham Georgewill, JCA.” –Per B. A. Georgewill, JCA

ROOT OF TITLE – WHERE A PARTY RELIES ON A PARTICULAR ROOT OF TITLE

“In law, once a party relies on a particular root of title, it is that root of title that must first be proved before any other acts may rightly be regarded as acts of ownership and or possession. In other words, where a Claimant or a Counter-Claimant, as the case may be, had relied on evidence of traditional history of title by first settlement, each of them was under a duty to prove the particular root of title relied upon before he can rely on acts of ownership and possession.

It follows, therefore, in the event of failure of either of the parties to prove the primary root of title pleaded, such a party cannot turn around to rely merely on acts of ownership and possession, no matter how long. In Ezuchukwu v. Ukachukwu (2000) 1 NWLR (Pt. 642) 657 @ p. 679, it was reiterated inter alia thus: ‘A Claimant of title to land, of course, need not rely on more than one of the five methods. Now, where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails, the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root title needs must be, firstly established before the exercise of the rights of ownership may be exercisable….

See also Paul Lawani v. Mrs. Risikatu Grillo & Ors (2018) LPELR – 44912(CA) per Sir Biobele Abraham Georgewill JCA, Nathan Igbudu & Ors v. Mr. Godspower Othe (2021) LPELR – 55559(CA) per Sir Biobele Abraham Georgewill JCA, Abubakar v. Fulani (2022) LPELR-57048(CA) per Sir Biobele Abraham Georgewill JCA.” –Per B. A. Georgewill, JCA

POSSESSION OF LAND – WHEN POSSESSION OF LAND IS DEEMED EVEN WHEN THE PERSON IS NOT IN PHYSICAL POSSESSION

“Interestingly, when it comes to the issue of possession of land in dispute, the law is that he who proves valid title is equally entitled to possession of the land in dispute. So settled is this position of the law that a person with a better title to land is by law deemed to be in possession even where he is not in de facto physical possession of the land as against a person without any color of right to the land.

Thus, if there be dispute as to which of two persons is in possession, the presumption is that the person having the better title to the land is in lawful possession. Therefore, no matter the length of time of unlawful and or unauthorized entry and occupation of land, it cannot in law metamorphose or ripen into legal possession of the land.

See Carrena v. Akinlase (2008) 14 NWLR (Pt. 1107) @ p. 262, where the Supreme Court emphatically pronounced inter alia thus: ‘A person who has title over a piece of land, though not in de facto physical possession, is deemed, in law, to be the person in possession. This is because the law attaches possession to title and ascribes it to the person who has title. Such possession is the legal possession, which is sometimes also called constructive possession.

See also Gankon v. Ugochukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt. 297) 55, Bennet Ude Agu v. Ozo Moses Nnadi ((1999) 2 NWLR (Pt. 589) 131, Solomon v. Mogaji (1982) 11 SC 1. –Per B. A. Georgewill, JCA”

STANDARD OF PROOF – STANDARD OF PROOF IN CIVIL CASES

“Now, the standard of proof in civil cases is that of balance of probability or preponderance of evidence ensuing from a careful evaluation of the evidence proffered by the parties and putting same on the imaginary scale of justice to see which side the evidence preponderates.

However, the evidence that is worth putting on the scale are such evidence that are credible, probable and worthy of belief and not evidence which are incredible, inadmissible and not worthy of any belief.

See Jiaza v. Bamgbose & Anor (1999) 7 NWLR (Pt. 610) 182. See also Dibiamaka v. Osakwe (1989) 3 NWLR (pt. 107) 101, Mogaji v. Odofin (1978) 4 SC 2, Onwuka v. Ediala (1989) 1 NWLR (pt. 96) 182, Ekpo v. Ita (1932) 11 NLR 68. –Per B. A. Georgewill, JCA”

EVIDENCE – UNCHALLENGED AND UNCONTROVERTED EVIDENCE

“In law, evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act to make appropriate findings.

See Saipem SPA v. India Tefa (2001) FWLR (Pt. 74) 377 @ P. 394. See also Igbinovia v. Agboifo (2002) FWLR (Pt. 103) 505 @ p. 514.-Per B. A. Georgewill, JCA”

EVIDENCE – EVIDENCE OF TRADITIONAL HISTORY

In law, mere discrepancy, particularly in evidence of traditional history, which basically refer to oral stories passed on from generation to generation and outside living memory, is usual and expected as otherwise such evidence may have been product of tutoring of witnesses. – Per B. A. Georgewill, JCA

TRADITIONAL HISTORY – THREE ESSENTIAL FACTS TO ESTABLISH TRADITIONAL HISTORY

The Respondent who had relied on evidence of traditional history as his root of title, adequately and satisfactorily, in my finding, discharged the burden of proving the three essentials facts, namely:

(a) Who founded the land

(b) How the land was founded

(c) The particulars of intervening successors… – Per B. A. Georgewill, JCA

TRADITIONAL HISTORY – THE LAW RELATING TO EVIDENCE OF TRADITIONAL HISTORY

“Indeed, when considering evidence of traditional history of title to land, it must be remembered, and very importantly too, that the law relating to evidence of traditional history even permits hearsay evidence contrary to the general rule of inadmissibility of hearsay evidence.

See Elegushi & Ors v. Oseni & Ors (2005 2009 Vol. 5 SCJL 108 @ p. 118, where the Supreme Court had reiterated inter alia:

“Proof of ownership of land by traditional history is usually based on hearsay evidence, that is oral evidence often extending beyond human memory and time of the witnesses narrating the history, which narrations were handed down from generation to generation up to the present one.”

In fact, it is not even the requirement of the law that a person narrating historical evidence must know the ancestors personally before the Court accredits his historical testimony. It is sufficient that he was handed down the ancient narration by any of his family members especially those who met his predecessors and are conversant with the said history. See Dazuwa & Ors v. Dzugu (2014) LPELR – 24166 (CA). –Per B. A. Georgewill, JCA”

EVIDENCE – CONDUCT OF COURTS IN RELATION TO CONTRADICTIONS IN EVIDENCE OF TRADITIONAL HISTORY OF TITLE

“In law, it is not every contradiction in evidence that would affect the credibility or testimonies of witnesses, such that for a testimony to be affected adversely, as urged upon us so vehemently by the learned counsel for the Appellant, the contradictions must be substantial or weighty and material. Thus, it is not every contradiction however minute that would suffice. See Aiyeola v. Pedro (2014) 5 SCNJ 435.

My Lords, when it comes to evidence of traditional history of title, the law on contradiction warrants a slightly different consideration by the Courts. This finer point was made clearer by the Supreme Court in Salawu v. Yusuf (2007) 5 SCNJ 357, where it was stated inter alia thus:

“In evidence of traditional history, conflicts and contradictions are bound to arise, this is because the parties are grappling with evidence of long interregnum and history has a way of changing as it passes from one hand to the other. If the changes are not material or substantial, the Court will not pay attention to them. It is only when the changes are or substantial that the Court will not assign probative value of the evidence. This is the position of the law which says that conflicts and contradictions can only avail the adverse party if they are material or substantial. In other words, where conflicts and contradictions are not material or substantial, the party will not suffer from them by denial of assigning probative value to them.”=Per B. A. Georgewill, JCA”

STANDARD OF PROOF – STANDARD OF PROOF IN CIVIL CASES

“In civil cases, including cases for declaration of title to land, the standard of proof is preponderance of evidence or balance of probability. It is not and had never been proved beyond reasonable doubt not even where civil trespass is alleged, contrary to the obviously erroneous submissions of the learned counsel for the Appellant demanding for proof of trespass in a civil proceeding beyond reasonable doubt.

In law, there is a world of difference between ‘civil trespass’ as relied upon and proved by the Respondent against the Appellant and ‘criminal trespass’ which had no relevance to the pleadings and claim of the Respondent against the Appellant. Thus, the Respondent was not under any duty to prove the essential elements of ‘criminal trespasses as was so vehemently, but obviously erroneously thought by the learned counsel for the Appellant.

See Tukuru & Ors v. Sabi & Ors (2013) 3 SCNJ PAGE 212. See also Pada v. Galadima (2017) 51 WRN 5 @ p. 6, Efana v. Adekunle (1961) ENLR 57. –Per B. A. Georgewill, JCA”

EVIDENCE – THE WEIGHT OF EVIDENCE OF TRADITIONAL HISTORY ALONE

It is the law that evidence of traditional history alone is sufficient to support a claim of title to land. See Bani Mbaka Investment Limited & Anor V. Mikap Nigeria Limited (2023) LPELR- 59612(CA), per Sir Biobele Abraham Georgewill JCA. See also Alade V. Awo (1975) 4 SC 215 @ p. 228. See also Aikhionbare V. Omoregie (1976) 12 SC 11 @ p. 27, Falomo V. Onakeme (2005) 11 NWLR (Pt. 9350 925 @ p. 135. – Per B. A. Georgewill, JCA

CROSS-EXAMINATION – CONDUCT OF COURTS IN RELATION TO EVIDENCE ELICITED UNDER CROSS-EXAMINATION

I should add that evidence elicited under cross – examination, once it is on the pleadings of any of the parties, it is not only admissible but also good evidence in support of the case of the party cross-examining, which the Court is free to rely upon and act in reaching appropriate finding of facts and proper conclusion. See Olumoroti V. Idemeko (2017) LPELR-51546(CA) per Sir Biobele Abraham Georgewill JCA. – Per B. A. Georgewill, JCA

TRESPASS – WHEN A CLAIM IN TRESPASS IS GROUNDED

“In law, therefore, one even in possession, though he can maintain an action in trespass against any person but he certainly, cannot maintain an action against the person with a better title to the land, who is in law presumed and or deemed to be the person with the right to lawful possession of the land in dispute as against the person who is in possession of the land in dispute without any color of right. See Solomon v. Mogaji (1982) 11 SC 1, Ojomo v. Ibrahim (1999) 12 NWLR (pt. 631) 415 @ p. 435.

Thus, any unauthorized entry into land alone without more is sufficient to ground a claim in trespass to land and it does not matter that the person has been on the land in such adverse mere occupation and no matter how long but once such occupation is not backed by title, it is of no consequence and can never ripen into lawful possession and or ownership against the person with the better title such as the Respondent.

This finding by the lower Court was so very clearly supported by the credible and reliable evidence led by the Respondent and his witness. See Sanya v. Suaman & Ors (2012) All FWLR (Pt. 618) 917 @ p. 957.-Per B. A. Georgewill, JCA”

POSSESSION – WHEN THERE IS ADVERSE POSSESSION WITHOUT A VALID TITLE

The adverse possession of the disputed land, no matter the length of the time had not ripened into a valid title to defeat the Claimants/Respondent’s title. – Per M. A. Danjuma, JCA

CASES CITED

STATUTES REFERRED TO

Evidence Act, 2011

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