CORAM

---

JUSTICE, ITA.G. MBABA (PJ), OFR,JUSTICE COURT OF APPEAL

JUSTICE, PATRICIA A. MAHMOUD,JUSTICE COURT OF APPEAL

JUSTICE, PETER O. AFFEN,JUSTICE COURT OF APPEAL

---

PARTIES

---

JOEL ANAMJA (For Himself and on Behalf of the family of Anamja of Biang Milajiri Village of Bazza in Michika L.G.A. Adamawa State)

APPELLANTS

---

JASINI THLAWUR

RESPONDENTS

---

AREA(S) OF LAW

---

APPEAL, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

 

---

SUMMARY OF FACTS

The plaintiff (Appellant) in the lower court sought a declaration that the Anamja family of Biang Malajiri Village in Bazza District, Michika Local Government Area, Adamawa State, is entitled to the customary right of occupancy over the land located at Biang Malajiri, Bazza District, Michika Local Government Area, Adamawa State. The Respondent, while denying the claim as the defendant, also counterclaimed.

During the trial at the Bazza Area Court, both parties relied on traditional history and traced their ancestry to the same person, Pur Musama, highlighting their common lineage. However, neither party could adequately establish the specific delineation of the land in question. Consequently, the trial court dismissed the plaintiff’s claim.

On appeal, the Adamawa State High Court dismissed the appeal and upheld the decision of the trial Area Court. Dissatisfied with this outcome, the Appellant filed the current appeal.

 

---

HELD

---

Appeal dismissed

 

---

ISSUES

---

Was the lower Court justified to dismiss the Appellant’s Appeal and affirming the decision of the trial Area Court, which dismissed the Plaintiff’s (Appellant’s) claim for declaration of title?

 

 

---

RATIONES DECIDENDI

---

CONCURRENT FINDINGS – CONDUCT OF APPELLATE COURTS TO CONCURRENT FINDINGS OF LOWER COURTS

---

The law remains, that concurrent findings to two lower courts remains strong, and cannot be interfered with, except it was perverse. See the case of ISAH VS. THE STATE (2017) LPELR – 43472 (SC), where it was held:

“. . . where there is sufficient evidence to support concurrent findings of fact by two lower Courts, such findings will not be disturbed, unless there is significant error that is apparent on the record, OGOALA VS. STATE (1991) 2 NWLR (PT. 175) 506.” Per Augie, JSC.

See also ENUKORA VS. FRN (2018) LPELR – 43822 (SC):

In the instant case where the two Courts below are concurrent in their findings, this Court is very hesitant to interfere unless their findings are shown to be manifestly perverse. It is only where the appellant has established clear errors in law or fact which have occasioned miscarriage of justice that this Court intervenes to reverse the concurrent findings of fact of the two Courts. See Ogundiyan V. The State (1991) LPELR-2333 (SC), Iyaro v. The State (1998) 1 NWLR (Pt 69) 256 and Ukpabi V. State (2004) LPELR-3346(SC).” Per MUHAMMAD, JSC (Pp. 14-15, paras. F-B)

In the case of JOHN VS. THE STATE (2019) LPELR – 46936 (SC), my Lord Okoro, JSC said:

“It is trite law that this Court would rarely interfere with concurrent findings of facts by the two Courts below except where such concurrent findings of facts appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced, or in violation of some principle of law and procedure. In such circumstances, this Court would not allow such perverse findings to stand. See Ogbu v. State (1992) 8 NWLR (Pt. 259) 255; Ogba v. State (1992) 2 NWLR (Pt. 222) 164: Bright v. State (2012)8 NWLR (Pt. 1302) 297 Ikenta Best (Nig.) Ltd. vs. Attorney-General Rivers State (2008) 6 NWLR (Pt. 1084).”Per OKORO, JSC (P. 15, paras. C-F) – Per I. G. Mbaba, JCA

 

---

APPEAL – THE QUALITY OF A CREDIBLE APPEAL

---

We have stated, many times, that a credible appeal must challenge the ratio decidendi of the judgment appealed against, by identifying what the lower Court did wrong and profiling same in the argument of the Appeal. Appeal is not meant for prevarication and/or equivocation over whimsical issues and sentiments. See ABDU VS. STATE (2022) LPELR – 57689 (SC), on the need for a ground of appeal to attack the ratio decidendi of the decision of the lower Court.

In the case of EZE VS. STATE (2017) LPELR – 42006 (CA), this Court held:

“It has been stated, severally, that appeals (the grounds thereof and Issues therefrom) must be founded on the judgment of the Court, appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See the case of Ossai Vs FRN (2013) 13 WRN 87; Agboroh Vs WAEC (2016) LPELR – 40974 (CA); Shettima Vs Goni (2012) 18 NWLR (pt.1279) 413; Nnolim Vs Nnolim (2017) LPELR – 41642 (CA). In the case of Nze Vs Aribe (2016) LPELR – 40617 (CA), this Court held: “This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgment appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See Aniozia Vs Nnadi (2015) LPELR – 24277 CA; (2015) 8 NWLR (pt.1461) 241; Obosi Vs NIPOST (2013) LPELR – 21397; UNILORIN Vs Olawepo (2012) 52 WRN 42; Alataha Vs Asin (1999) 5 NWLR (pt.601) 32; Punch Nig. Ltd Vs Jumsun Nig. Ltd (2011) 12 NWLR (pt.1260)162.”

See also SALE VS. MUHAMMAD & ORS. (2023) LPELR – 59565 (CA), where we held:

“By law, a ground of appeal, or issue thereof for determination of appeal, must challenge or attack the ratio decidendi of the lower Court, and demonstrate how it was wrong and unsupportable by the evidence and the law to merit a review or consideration by the Appellate Court. See the case of Onwukwe v. Ekejiuba (2017) LPELR-42417 (CA).” – Per I. G. Mbaba, JCA

 

---

BURDEN OF PROOF – BURDEN OF PROOF IN A CLAIM FOR DECLARATORY RELIEFS

---

Of course, it was Appellant’s case, as Plaintiff, that he was entitled to the declaratory reliefs. The burden of proof remained on the Plaintiff, who must succeed on the strength of his own case, and not on the weakness of the defence. See the case of AG RIVERS STATE VS. AG FEDERATION & ANOR. (2022) LPELR – 57708 (SC):

“In a declaratory claim or relief, a party has a duty to prove entitlement to the declaration unassisted by the weakness in the opponent’s case. See ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541(SC) (PP. 16 PARAS. D).” Per ABBA AJI, JSC (P. 138, paras. D-E)

See also OBE VS. ABUBAKAR & ORS. (2023) LPELR – 60408 (SC); DUMEX NIG. LTD. VS. NWAKHOBA & ORS. (2008) LPELR – 965 (SC); UWAHIANRI & ANOR. VS. ONYEMAIZU & ANOR. (2017) LPELR – 41672 (CA); ISA VS. APC & ORS. (2023) LPELR – 60150 (SC) and ANI & ORS. VS. OUT & ORS (2023) LPELR – 59602 (SC), where the Supreme Court held:

“a Plaintiff seeking declaratory reliefs, must succeed on the strength of his case, and not on the weakness of the Defendant’s case – see Emenike V. PDP (2012) 12 NWLR (Pt. 1315) 556 and Dumez Nig. Ltd. V. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 wherein this Court explained the principle as follows: “The law on the requirements of the Plaintiff to plead and prove his claims for declaratory reliefs on evidence called by him without relying on the evidence called by the Defendant is, indeed, well-settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted, even on admission by the Defendant, where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. In [effect], a declaration – – cannot be made on admission or in default of pleading by the Defendant, not to talk of reliance on the evidence of the Defendant’s Witnesses.” Thus, a Plaintiff, who seeks a declaratory relief, has the burden to prove to the satisfaction of the Court that he is entitled to same. He is not allowed to point his fingers at any weakness, omission or default on the part of the Defendant, and must stand or fall on the strength of his own case. In this case, even if the first Respondent admitted that he was not qualified as alleged, the Appellants, must prove on the strength of their case that they are entitled to the Declaration sought that he is not qualified to be selected or appointed Obong of Calabar.” Per AUGIE, JSC (Pp. 63-65, paras. F-A) – Per I. G. Mbaba, JCA

 

---

COMMUNAL LAND – A CARDINAL FEATURE OF COMMUNAL LAND OWNERSHIP

---

A cardinal feature of communal land ownership is that notwithstanding that individual members or factions of a family or community are allocated portions (or even the entire land) upon which they exercise varying occupational rights, the land remains jointly held by the community or family and no individual member or faction can lay personal clam to it until and unless it is successfully demonstrated in evidence that the land has ceased to be communal property whether by partitioning [see AKINROPO & ORS v YUSUF (2013) LPELR-

20214(CA)] or otherwise. In UDEZE v CHIDEBE [1990] 1 NWLR (PT 125) 141 at 163 – 164, Nnaemeka-Agu, JSC opined:

“It is trite that once it is claimed that land is communally owned, it instantly conjures up a number of vagaries incidental to our indigenous system of tenure and ownership of land. Among them are the rights of the head of the community (Okpala in Ibo land) to allocate parcels thereof on condition of varying occupational rights, ranging from separate ownership to mere temporary occupation. Can it be stated that once a person is shown to be in occupation of a parcel of land which forms part of land communally owned, he should be presumed to be the owner? I think not. Moreover, it has been held in a number of cases such as Eze v. Igiliegbe (1952) W.A.C.A. 61 [and] Ovie v. Onoriobokirhe (1957) W.R.N.L.R. 169, p. 170 that the burden is on the person claiming that land has ceased to communal property to prove such a claim.” (Bold fonts for emphasis). – Per P. O. Affen, JCA

 

---

APPEAL – THE PURPOSE OF APPELLATE PROCEDURE

---

It is hardly necessary to state that an appeal is not a platform for rehashing or regurgitating submissions made before the lower court and ruled upon without more. The appellate procedure is a grievance procedure; an invitation to a superior court to review the decision of a lower court and enter a decision the lower court ought to have reached. There is a presumption of regularity and correctness of decisions of courts of law and the appeal court does not make a practice of substituting its discretion or opinion for that of the lower court from which an appeal emanates. As such, it is always incumbent on the appellant who seeks to fault a judgment on appeal to demonstrate how the lower court is said to have erred in its decision [see HANATU v AMADI [2020] 9 NWLR (PT 1738) 115 at 132 (SC)], or how the findings made by the lower court are perverse [see UDE v STATE [2016] 14 (PT 1531) 122 , KAYILI v YILBUK (2015) 7 NWLR (PT 1457) 26 and AMADI v ATTORNEY GENERAL OF IMO STATE [2017] 11 NWLR (PT 1575) 92]. – Per P. O. Affen, JCA

 

---

APPEAL – THE DUTY OF AN APPELLANT IN AN APPEAL

---

It is hardly necessary to state that an appeal is not a platform for rehashing or regurgitating submissions made before the lower court and ruled upon without more. The appellate procedure is a grievance procedure; an invitation to a superior court to review the decision of a lower court and enter a decision the lower court ought to have reached. There is a presumption of regularity and correctness of decisions of courts of law and the appeal court does not make a practice of substituting its discretion or opinion for that of the lower court from which an appeal emanates. As such, it is always incumbent on the appellant who seeks to fault a judgment on appeal to demonstrate how the lower court is said to have erred in its decision [see HANATU v AMADI [2020] 9 NWLR (PT 1738) 115 at 132 (SC)], or how the findings made by the lower court are perverse [see UDE v STATE [2016] 14 (PT 1531) 122 , KAYILI v YILBUK (2015) 7 NWLR (PT 1457) 26 and AMADI v ATTORNEY GENERAL OF IMO STATE [2017] 11 NWLR (PT 1575) 92]. – Per P. O. Affen, JCA

 

---

CASES CITED

---

---

STATUTES REFERRED TO

CLICK HERE TO READ FULL JUDGEMENT