Legalpedia Citation: (2024-02) Legalpedia 09151 (CA)

In the Court of Appeal

GOMBE JUDICIAL DIVISION

Fri Feb 23, 2024

Suit Number: CA/G/30/2022

CORAM

Ali Abubakar Babandi Gumel JCA

Ugochukwu Anthony Ogakwu JCA

Mohammed Danjuma JCA

PARTIES

1. KAIGAMA GALTIMA
2. LAWAN MAIRAMI
3. LAWAN ZANNA BUKAR MAJAMA
4. BULAMA FUGU JIDDAMI GANA

APPELLANTS

1. ALHAJI MADU YAWUMI
2. BULAMA BUKAR MALTIMAMI

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

 

The Res, the subject matter of this suit, is a piece of land. It is bordered to the East by a tarred road, to the West by Abatcha Fari’s farmland, to the North by a tree called tamsu (tsamiya), and to the South by the Government Girl Secondary School, Gajiganna, situated at Fuguri Village, Gajiganna, Magumeri Local Government Area of Borno State. Judgment was entered in favor of the Claimants. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same, hence the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the judgment of the lower Court is not against the weight of evidence and perverse?
2. Whether the trial Judge accurately ascertain the identity of the land in dispute?

RATIONES DECIDENDI

APPEAL – WHETHER LEAVE OF COURT IS REQUIRED TO APPEAL A FINAL DECISION OF A COURT SITTING AT FIRST INSTANCE IN A LAND DISPUTE

The decision appealed against, namely the judgment of the lower Court of 16th July 2021, is a final decision. It represents the judgment of the lower Court sitting at first instance regarding the disputed piece or parcel of land litigated by the parties. Therefore, under the provisions of Section 241(1)(a) of the Constitution, as amended, an appeal lies from this decision as of right, regardless of whether the grounds of appeal involve law, mixed law and fact, or facts only. Court leave is not required. See AQUA LTD vs. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622, IKWEKI vs. EBELE (2005) 11 NWLR (PT 936) 397 at 422-429, APC vs. JOHN (2019) LPELR (47003) 1 at 28, PDP vs. EBOH (2022) LPELR (58677) 1 at 23-24, ABUJA MUNICIPAL AREA COUNSEL vs. ANYISA (2023) LPELR (59915) 1 at 13, and DAVANDY FINANCE AND SECURITIES LTD vs. AKI (2023) LPELR (60453) 1 at 17-18. – Per U. A. Ogakwu, JCA

TITLE TO LAND – DUTY OF THE CLAIMANT TO IDENTIFY THE LAND IN DISPUTE IN AN ACTION FOR DECLARATION OF TITLE TO LAND – WHERE THE IDENTITY OF THE LAND IS NOT IN QUESTION IN AN ACTION FOR DECLARATION OF TITLE TO LAND

The rudimentary law and a general principle of law dictate that a claimant seeking title to land must establish the identity of the disputed land. This is essential for the Court to determine the exact parcel of land in question and render judgment accordingly if the claimant successfully proves their title. See GBADAMOSI vs. DAIRO (2007) LPELR (1315) 1 at 25, ADELAJA vs. ALADE (1999) LPELR (109) 1 at 26, UKAEGBU vs. NWOLOLO (2009) LPELR (3337) 1 at 43-44, ADDAH vs. UBANDAWAKI (2015) LPELR (24266) 1 at 23-24, and DADA vs. DOSUNMU (2006) LPELR (909) 1 at 18-19.

However, this general principle of law is not absolute. In cases where the identity of the disputed land is not contested or where there exists sufficient evidence for the Court to infer the identity of the land, proof of its identity may not be required. In such instances, there is no burden on the claimant to establish the identity of the land, as stated in GBADAMOSI vs. DAIRO (supra).

The law is clear on when an issue regarding the identity of disputed land is considered to be raised. This occurs when the defendant explicitly challenges the identity of the disputed land in their Statement of Defence. See EZEUDU vs. OBIAGWU (1986) 2 NWLR (PT 21) 208 at 220, ANYANWU vs. UZOWUAKA (supra) at 34-35, and FATUADE vs. ONWOAMANAM (1990) LPELR (1253) 1 at 6-7. – Per U. A. Ogakwu, JCA

EVIDENCE – PRIMARY DUTY OF TRIAL COURTS/JUDGES IN RELATION TO EVIDENCE – MEANING OF EVALUATION OF EVIDENCE – CONDUCT OF COURTS IN EVALUATION OF EVIDENCE

Now, the primary duty of the Judge at nisi prius is the 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. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51, and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. The duty of the trial Court to receive all available relevant evidence on an issue is the perception of evidence. After that is the duty to weigh that evidence in the context of the surrounding circumstances of the case. This is an evaluation of evidence. A finding of fact will entail both perception and evaluation.

There is little or no difficulty with the perception of evidence, id est, receiving all available relevant evidence. It is in the perception of evidence that the lower Court admitted the testimonial and documentary evidence adduced by the parties. Having done so, the next duty of the lower Court was to evaluate and ascribe probative value to the evidence. So, what amounts to the evaluation of evidence? This is a question that was admirably dealt with and answered by Oputa, JSC (of most blessed memory) in ONWUKA v. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209 where he stated:

“What does the evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find a numerical expression for, etc.…

Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A.R. MOGAJI & ORS v. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93: ‘When an Appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which has been given to the totality of the evidence before him (the trial judge)… Therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it…’

The scale, though imaginary, is still the scale of justice and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should, therefore, be no other than credible evidence. What is, therefore, necessary in deciding what goes into the imaginary scale is the value, credibility, and quality as well as the probative essence of the evidence.… Even in Mogaji’s case… this Court held at p.94: ‘Therefore in determining which is heavier, the judge will naturally have regard to the following:

(a) whether the evidence is admissible;

(b) whether it is relevant;

(c) whether it is credible;

(d) whether it is conclusive; and

(e) whether it is more probable than that given by the other party.’

It would appear that the evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief in the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates, and then make logical and consequential findings of facts. See ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451, STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005, UNITED MICROFINANCE BANK LTD EKPAN vs. ADJAKA (2015) LPELR (24541) 1 at 41-43, and OTASANYA vs. OJELADE (2021) LPELR (55584) 1 at 45-46. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other. See AKINTOLA vs. ADEGBITE (2007) ALL FWLR (PT 372) 1891 at 1898. In précis terms, the evaluation of evidence is the assessment of facts by the Court to ascertain which of the parties to a case has more preponderant evidence. See ONI vs. JOHNSON (supra) at 35-38. – Per U. A. Ogakwu, JCA

TRADITIONAL HISTORY – CONDUCT OF COURTS WHERE BOTH PARTIES IN AN ACTION FOR DECLARATION OF TITLE TO LAND RELY ON TRADITIONAL HISTORY AS EVIDENCE

By all odds, the parties presented parallel traditional history evidence on the devolution of the disputed land. Indeed, it can be said that in this manner, the disparate traditional history evidence was conflicting. The law, in its wisdom, recognizes this possibility and has indeed fashioned how such conflicting evidence of traditional history is to be resolved by the Court. In KOJO II vs. BONSIE (1957) 1 WLR 1223 at 1226, it was held as follows:

“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 recognized 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.”

See also AGEDEGUDU vs. AJENIFUJA (1963) LPELR (25411) 1 at 11-12, OKOKO vs. DAKOLO (2006) LPELR (2461) 1 at 21-22, and IHENACHO vs. EGBULA (2021) LPELR (55931) 1 at 47-48. – Per U. A. Ogakwu, JCA

COURTS – DUTY OF TRIAL COURTS IN REGARDS TO EVIDENCE – CONDUCT OF APPELLATE COURTS TO EVALUATION OF EVIDENCE BY TRIAL COURTS

Let me restate that it is hornbook law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial judge, who as a peculiar adjudicator, has the unparalleled advantage of seeing the witnesses testify and observing their demeanor. See ONI vs. JOHNSON (supra) at 35-38. 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 the accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT. 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320, and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48.

The law is that the conclusions of the trial Court on the fact are presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66, BAMGBOYE vs. OLAREWAJU (1991) 4 NWLR (PT 184) 132 at 156, and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. Once again, it is an established principle that an appellate Court  has no jurisdiction to interfere. See OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 217-218. – Per U.A. Ogakwu, JCA

TITLE TO LAND – DUTY OF A CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND

…it is axiomatic and well settled beyond any conjecture that in order to succeed in an action for declaration of title to land in this country, the claimant must positively convince and satisfy the Court that he is entitled to the relief. And he must do that by showcasing the strength of his claim and not the weakness of the defense against it. This is a cardinal principle and requirement of the law that must be proved. See KODILINYE V. ODU 2 WACA 336 at 337-338, AROMIRE V. AWOYEMI (1972) 1 All NLR 101 at 103, OBIOHA V. DURU (1994) 8 NWLR (pt 365) 631, and BALOGUN V. AKANJI (1988) NWLR (pt. 70) 301. If a claimant fails to discharge the onus of proof of title to land, the proper judgment is for the defendant to succeed, notwithstanding the weakness of his case, according to the decisions in a number of decided cases of the Supreme Court such as AKUNYILI V EJIDIKE (1996) 5 NWLR (pt. 449) 381, AKPAPUNA V. NZEKA (1983) 2 SCNLRI, and PAUL NWAZUAH & ORS V. IBOE & ORS (1998) 6 SCNJ 73 etc.

Further to the above landmark state of the law, it is equally significant to bear in mind that any claimant for a declaration of title to land must establish the identity of the land with impactful certainty and precision. See BARUWA V. OGUNSOLA (1938) 4 WACA 159 and the more recent decision of the Supreme Court in AKINTERINWA V. OLADUNJOYE (2000) 4 SCNJ 149 at 172. – Per A. A. B. Gumel, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

CLICK HERE TO READ FULL JUDGEMENT