CORAM
PARTIES
MATHIAS MAZANG
1. SAMAILA MASHINKPEN2. SAMSON YESEVORO
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents before the High Court of Taraba State sitting in Jalingo sought against the Appellant a declaration of title over the parcel of land situate at Dampang Area of Yorro Local Government of Taraba State, an order of perpetual injunction and award of the sum of One Million Naira damages for trespass. The Respondents’ claim that the expanse of land in dispute was an inheritance from their forebears, who about a century ago found, deforested, inhabited and farmed on it. In addition to their exercise of acts of possession, they granted portions of the land to other people for farming purposes. However, shortly before the institution of the action of the Respondents in 2015, the Appellant trespassed on the land claiming ownership of it on the premise that his late father had purchased it in accordance with the Mumuye native law and custom, over fifty years prior. At the end of the trial, the lower Court in its judgment found in favour of the Respondents and granted the reliefs sought by them in part. Aggrieved about the said judgment of the trial Court, the Appellant filed the instant appeal against it to this Court vide his Notice of Appeal of three grounds of appeal.
HELD
Appeal Allowed
ISSUES
Whether the Respondents did not establish their claims against the Appellant as to be entitled to the judgment of the trial Court?
RATIONES DECIDENDI
BURDEN AND STANDARD OF PROOF – NATURE OF THE BURDEN AND STANDARD OF PROOF IN CIVIL AND CRIMINAL CASES
“In civil cases of which the instant case is a specie, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings – See Section 137(1) of the Evidence Act. Therefore, if such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and successively, until all the issues in the pleadings have been dealt with. Hence, the burden of first proving a fact is usually on the plaintiff who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of the pleadings. Therefore, it is valid law that the state of the pleadings materially determines the party who has the burden of proof. In essence, unlike the position in criminal cases where the burden of proof statically resides on the prosecution to establish the case brought against the defendant, the burden of proof in civil cases is not static on the plaintiff but it shifts from time to time depending on the pleadings of the parties. The law is equally settled that, in a criminal case or even in a civil case involving an imputation of crime, the standard of proof is proof beyond reasonable doubt, but in a civil case, the standard of proof is on the preponderance of evidence. In either case, the prosecution or plaintiff or claimant need not call every available piece of evidence or witness to prove his case. It is enough if sufficient credible evidence is adduced to discharge the burden of proof. Preponderance of evidence simply means one side’s position outweighing the other side when put on the imaginary scale of justice which must be evenly held by the Judge. On these legal principles, see the cases of: (1) Dibiamaka v. Osakwe (1989) 3NWLR (Pt.107) p.101 at p.113; (2) Jiaza v. Bamgbose (1999) 7NWLR (Pt. 610) 10NWLR (Pt.1202) p.412; (4) Onwuka v. Omogui (1992) 3SCNJ p.98; (5) Akinkugbe v. E.H. (Nig.) Ltd. (2008) 12NWLR (Pt.1098) p.375; (6) Aliucha v. Elechi (2012) LPELR-7823(SC) and (7) Ayorinde v. Sogunro (2012) LPELR – 7808(SC). –
DECLARATORY RELIEFS – WHETHER DECLARATORY RELIEFS CAN BE GRANTED ON THE ADMISSION OF THE ADVERSE PARTY OR IN DEFAULT OF PLEADINGS BY THE DEFENDANT
“However, the requirement of the law regarding the onus placed on a party/plaintiff claiming a declaratory relief, as claimed by the Respondents herein, indeed whether of title to land or not, is quite stringent, for the plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief sought. It is the law that a court does not grant a declaration on admission of parties because the court must be satisfied that the plaintiff, on the strength of his own evidence, not the weakness of the evidence of the defendant, is entitled to the relief claimed. See the cases of: (1) Woluchem v. Gudi (1981) 5SC p.291; (2) Fabunmi v. Agbe (1985) 1NWLR (Pt.2) p.299 at p.318 and (3) Ayanru v. Mandilas Ltd. (2007) 10NWLR (Pt.1043) p.462. Therefore, a declaratory relief will not be granted in default of the pleadings of the defence, as a matter of course, graciously and on a platter of gold. Hence, where a defendant fails or chooses not to file a statement of defence, the plaintiff seeking a declaratory relief must still adduce cogent and compelling evidence to prove his claim. In the case of: Akinbade v. Babatunde (2018) 7NWLR (Pt.1816) p.366 at p.394, paras. C – D, the Supreme Court reiterated this well-established legal principle as follows: It is also settled law that a claim for a declaratory relief is a discretionary remedy, which is never granted as a matter of course, on the admission of the adverse party or in default of pleadings by the defendant. The claimant must lead evidence to establish his entitlement to the declaration he seeks and may not rely on the weakness of the defence, if any-see Dumez (Nig.) Ltd. V. Nwakhoba (2008) 18NWLR (Pt.1119) 361; Bello v. Eweka (1981) 1SC 101; Emenike v. PDP (2012) LPELR-7802 (SC) at 27 D-G (2012) 12NWLR (Pt.1315) 556. –
COURT OF APPEAL – INSTANCES WHEN A COURT OF APPEAL CAN EMBARK ON THE REVALUATION OF EVIDENCE
“The learned counsel for the Appellant has clamoured this Court to set aside the judgment of the trial Court but to not order a retrial in view of the evidence already adduced by both parties before the trial Court. He has called upon this Court to revaluate the said evidence, dismiss the Respondents claim and hold that the Appellant is entitled to the disputed land having been in an uninterrupted possession of same for the past fifty years. He relied on the case of: Mogaji v. Odofin (1981) 1SC p.101. I agree with this position of the learned counsel for the Appellant to the extent that, an appeal being a continuation of trial and with the materials already in place and available in the record of appeal, this Court is legally in a vantage point to properly resolve one way or the other the claims of the Respondents, the subject-matter of this appeal especially pursuant to Section 15 of the Court of Appeal Act, 2004 which provides as follows: The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purposes of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in the court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction. (The underlining is supplied by me for emphasis). See also Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 which provides that: All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties. (The underlining is supplied by me for emphasis). What is more, the law is now well settled that although generally, the duty of evaluating and appraising evidence belongs to the trial court that observed and heard the witnesses and an appellate court will not ordinarily embark on a re-evaluation of the evidence adduced, disturb the finding or conclusion in a judgment of a trial court simply because it would have come to a finding or conclusion different from the one arrive at by the trial court on the facts of the case, an appeal court can also exercise the power and has jurisdiction to re-evaluate evidence. Hence, an appeal court can re-evaluate evidence where the trial court failed, neglected or refused to do so or did it in an improper way. The appeal court can conveniently embark on such re-evaluation where, for instance: (a)the trial court’s evaluation of the evidence is clearly perverse; (b)the trial court drew wrong inferences from the totality of the evidence; (c)the trial court applied wrong principles of the law to accepted facts in the case. See the case of: Anyegwu v. Onuche (2009) 3NWLR (Pt.1129) p.659. –
JUDGMENT OF COURT – WHAT DOES A PROPER JUDGMENT ENTAIL?
“It is pertinent at this juncture to strongly but respectfully observe the umpteenth time the firmly established legal position that, it is the duty of a trial Judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him. The learned trial Judge fell terribly short of this required standard. His Lordship hardly evaluated the evidence adduced by the parties before him in the instant case. For the reproduction by the learned trial Judge of the chunk of the pleadings and statements on oath of witnesses verbatim and rendition of his opinion in only a few lines cannot be referred to as a considered decision of court. On what a proper judgment entails, the Supreme Court long ago restated its earlier stance in the case of: Oladehin v. Continental Textile Mills Ltd. (1978) 2 S.C. p. 17, in the following words: It is the duty of a trial Judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him. He cannot abandon that duty by taking refuge in the clouds of “I believe” and “I do not believe” without really evaluating the evidence of vital witnesses. If he abandons this duty, the use of the expressions “I believe” and “I do not believe” will not stop the appeal court from itself evaluating the evidence and seeing whether there is any justification for the use of such expressions. [See Alhaji Akibu V. Joseph Opaleye (1974) 11SC 189 at 803]. ————————————————————————–We would repeat here what this Court pointed out and observed in the case of: Chief S. O. Gbadamosi V. Aderogba Ajao SC.462/66 DELIVERED ON THE 24TH OF JUNE, 1968, therein Ademola, C.J.N. delivering the judgment of the Court said: “In our view, when there are materials before a judge upon which he is to assess the evidence of a witness, it is not enough for the judge to say that he believed that witness without proper evaluation of his evidence upon which he could base his belief. See also the cases of: (1) Duru v. Nwosu (1989) 4NWLR (Pt.113) p. 24; (2) Ogolo v. Ogolo (2003) 18NWLR (Pt.852) p. 494 and (3) Agala v. Okusin (2010) 10NWLR (Pt.1202) p. 412. It is therefore legally incumbent on me to re-evaluate the evidence adduced by the parties at the trial Court as contained in the record of appeal, for the learned trial Judge’s consideration of the case was a drift from the said sets of evidence. See also the cases of: (1) Adelumola v. State (1988) 1NWLR (Pt.73) p.683 and (2) Ikpa v. State (2018) 4NWLR (Pt.1609) p.175 at p.217, para. C”.-
OWNERSHIP OF LAND – WAYS OF PROVING OWNERSHIP OF LAND
It is well settled principle of law that there are five ways of proving ownership of land, each of which suffices to establish title to a piece or quantity of land in dispute. (See the case of: Odife v. Amiemeka (1992) 7SCNJ p.337). In the “locus classicus” case of: Idundun v. Okumagba (1976) NSCC Vol.10 1st Edition p.445 at pgs.453-454, the Apex Court per Fatayi-Williams, JSC, (of blessed memory), laid down the law as follows: -Firstly, ownership of land may be proved by traditional evidence. (See the case of: Odife v. Aniemeka (1992) 7SCNJ p.337). -Secondly, ownership of land may be proved by production of documents of title which must be fully authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more, at the date of the contract. (See Section 155 of the Evidence Act, 2011 and the case of: Johnson v. Lawanson (1991) 1All NLR p.56). -Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner. (See the case of: Ekpo v. Ita 11 N.L.R p.68). -Fourthly, acts of long possession and enjoyment of the land may also be ‘prima facie’ evidence of ownership of the particular piece or quantity of land with reference to which such acts are done. (See Section 35 of the Evidence Act, (supra). Such acts of long possession in a claim of declaration of title (as distinct from a claim for trespass) are a weapon more of defence than of offence; moreover, under Section 143 of the Evidence Act, (supra), while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title. (See Da Costa v. Ikomi (1968) 1All NWLR p.394 at p.398). -Finally, 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, may also rank as a means of proving ownership of the land in dispute. (See Section 35 of the Evidence Act, (supra). See also the cases of: (1) Abinabina v. Enyimadu (1953) AC p.207 at pgs. 215-216; (2) Bankole v. Pelu (1991) 8NWLR (Pt.211) p.523; (3) Okonji v. Njokanma (1999) 12 S.C. (Pt.II) p.150; (4) Irolo v. Uka (2002) 14NWLR (Pt.786) p.195; (5) Kazeem v. Mosaku (2007) 7 S.C. p.22 and (6) Sapo v. Sunmonu (2010) 11NWLR (Pt.1205) p.374. –
DECLARATORY RELIEFS – WHO BEARS THE BURDEN AND STANDARD OF PROOF IN DECLARATORY RELIEFS?
“In the case of: Dumez Nig. Ltd. V. Nwakhoba (2008) 18NWLR (Pt.1119) p.361, the Supreme Court on the issue of who bears the burden and standard of proof in declaratory reliefs restated the age-long legal principle as follows: The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the 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 other words, declarations of right as sought by the plaintiffs/ respondents in their first relief against the defendant/ appellant in the present case, cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant witnesses. See Wallersteiner v. Moir (1974) 3 All ER 217 at 251, where Bukley, L.J., said: It has always been my experience, and I believe it to be a practice of long standing, that the court does not make declarations of right either on admission or in default of pleading…………but only if the court was satisfied by evidence. See also Metzger v. Department of Health and Social Security (1977) 3 All ER 444 at 451. This statement of the law was adopted by this court in Vincent I. Bello v. Magnus Eweka (1981) 1SC.101; (1981) 1SC. (Reprint) 63, and also applied in Motunwase v. Sorungbe (1988) 12S.C (Pt.1) 130; (1988) 5NWLR (Pt.92) p.90 at p.102. Further on the standard of proof, the law is equally trite that a party may rely on any of the five methods of proof and succeed, based on cogent, satisfactory and conclusive evidence, to prove his title. See the cases of: (1) Aikhionbare v. Omorejie (1976) 12SC p.11; (2) Faleye v. Dodo (2016) 15NWLR (Pt.1534) p.80 and (3) Orlu v. Onyeka (2018) 3NWLR (Pt.1607) p.467. –
TRADITIONAL HISTORY – DUTY OF A PARTY WHO RELIES ON TRADITIONAL HISTORY TO PROVE HIS TITLE TO LAND
“In the instant matter, the Respondents as claimants, in their bid to establish their claim of ownership of the disputed land and concomitantly damages for trespass and injunction against the Appellant, from the pleading and evidence adduced before the trial Court, clearly employed the first of the five methods of proof laid down in the case of: Idundun v. Okumagba (supra) set out above by me, that is, proof by traditional evidence. Where a party relies on traditional history to prove his title to land as in the instant matter, he must plead facts and lead cogent, credible, conclusive and satisfactory evidence in support thereof to prove: (a)who found the land; (b)how the land was found; and (c)the particulars of the subsequent intervening owners of the land. See the cases of: (1) Alli v. Aleshinloye (2000) 4SCNJ p.264 at pgs. 284-285; (2) Mogaji v. Cadbury (Nig.) Ltd. (1985) 2NWLR (Pt.7) p.393; (3) Elegushi v. Oseni (2005) 14NWLR (Pt.945) p.348 and (4) Orlu v. Onyeka (supra) at p.493. It should be noted straightaway that, the method of proof under discuss herein, that is, traditional history, has to do with the aggregate of past events passed down to living memory. In the circumstance, it is the narrative description and account beyond the living memory of the narrator, of who found and in what manner the land in dispute was found and the successive inheritors down to the claimants.
TRADITIONAL EVIDENCE – NATURE OF TRADITIONAL EVIDENCE
“In the case of: Dike v. Obi Nzeka II (1986) 4NWLR (Pt.34) p.144 the Supreme Court per Oputa, JSC (of Blessed Memory) at page 158, paras. F – G on the nature of traditional evidence pointedly held as follows: What then is traditional history or traditional evidence? When is such evidence relevant? Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of Section 44 of the Evidence Act, Cap 62 of 1958 Laws of the Federation of Nigeria. This Section provides: “S.44: When the title to or interest in family or communal lands is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant”. (The underlining is supplied by me for emphasis). Section 44 of the old and repealed Evidence Act is in “pari materia” with Section 66 of the extant Evidence Act, (Supra). Section 66 provides: “Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is admissible.” –
BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL CASES
“In a civil case, the Court decides the case on the balance of probabilities or preponderance of evidence. This is done when the trial Court or an appellate court as the case may be, puts on an imaginary scale the totality of the evidence adduced by the parties before it and then comes to a decision as to which evidence it accepts and which it rejects. The Court must put the evidence adduced by the plaintiff on one side of the scale and that adduced by the defendant on the other side of the scale and weigh them together. The Court will then see which is heavier not by the number or quantity of witnesses called by each party, but by the quality or probative value of the testimonies of those witnesses. See the decision of the Supreme Court in Fagbenro vs. Arobadi (2006) 7NWLR (Pt.978) 174. –
APPELLATE COURT – DUTY OF AN APPELLATE COURT WHEN THE FINDINGS OF A LOWER COURT IS PERVERSE
“The law is trite that, a finding or decision or judgment of a lower court which an appellate court finds to be perverse must be set aside by the appellate court. This is one of the predominant legally bounden duties of an appellate court. A finding is said to be perverse, when it runs counter to the evidence and pleadings or where it has been shown that the trial judge took into account matters which he ought not to have taken into account or shuts his eyes to the obvious, thereby persisting in error, different from what is reasonable or required or when it has occasioned a miscarriage of justice. See the cases of: (1) Ebe v. Ebe (2004) 3NWLR (Pt.860) p.215; (2)Adimora v. Ajufo (1988) 3NWLR (Pt.80) 1, 16; and (3) Odiba v. Azege (1991) 7NWLR (Pt.206) 724. –
DECLARATION OF TITLE TO LAND – WHETHER A DEFENDANT AUTOMATICALLY ACQUIRES TITLE TO LAND, WHERE THE CLAIM OF A PLAINTIFF IS DISMISSED
“The law is quite on solid footing that, the fact that a plaintiff claiming title to a land in dispute failed in proving the title and the court dismissed his claim, does not automatically confer title to the land on the defendant. See the case of: Pada v. Galadima (2018) 3NWLR (Pt.1607) p.436 where the Supreme Court held as follows: It is worthy of note, that the respondent herein as defendant at the trial Court, did not file any counter-claim. The law is trite that for a defendant to get title, he must prove it where the action of a plaintiff seeking declaration of title is dismissed. Such dismissal in the absence of a successful counter-claim by the defendant, does not amount to a declaration of any right to the defendant. Therefore, where a plaintiff claims title to land and the Court dismisses his claim for failing to prove title, the defendant who has not counter-claimed for declaration of title to the same land, does not automatically become entitled to the land. (The underlining is supplied by me for emphasis). See also the case of: Muda Auwoyi & Ors. V. John Bankole Shodeke & Ors. (2006) LPELR – 502(SC) where the Supreme Court at pages 25-26 per Ogbuagu, JSC (of blessed memory) stated as follows: The Appellants did not counter-claim and therefore, the dismissal of the Respondents’ said suit, it is now settled, does not automatically mean, that the land in dispute, belongs to the Appellants. See the cases of: The Obi of Ogwashi-Ukwu v. Obi Onwordi & Ors. (1986) 4NWLR (Pt.33) 27; Chief Eyo Ogboni & 2 Ors. V. Chief Ojo Ojah & 5 Ors. (1996) 6NWLR (Pt.454) 272 at 294………. Alhaji Salami V. Chief S. Gbodoolu & 3 Ors. …………. (1997) 4NWLR (Pt.499) 77, 196 at 206 citing the cases of: Kodilinye v. Odu (1935) 2WACA 336 and Abisi & Ors. V. Ekwealor & Anor. (1995) 6NWLR (Pt.302) 643; (1993) 7SCNJ, 193 just to mention a few, i.e. such dismissal or judgment, decrees no title to the defendant who has not counter-claimed seeking such declaration to title…… (The underlining is supplied by me for emphasis). –
RELIEFS – WHETHER A COURT IS ALLOWED TO GRANT TO A PARTY RELIEF(S) NOT CLAIMED OR SPECIFICALLY SOUGHT FOR
“It is settled and an elementary law that a court of law is not allowed to grant what a party in an action did not specifically ask for or claim. A declaratory relief must be specifically pleaded, claimed and proved. The arena to do this is in the initiating process of the party’s action and not during trial, addresses or submissions of counsel in the party’s briefs of argument. In the case of: Peter Adeboye Odofin & Anor. V. Chief Agu & Anor. (1992) LPELR-2225(SC), the Apex Court per Nnaemeka-Agu, JSC (of blessed memory) restated the legal principle that: It has been said times without number that a court ought not to play the role of Father Christmas which can go around granting to party’s relief which they have not asked for. See Nwanya v. Nwanya (1987) 3 N.W.L.R. (Pt.62) 697. In our adversary system, a court makes orders on the lis or issues raised by the parties. Where a court grants to a party a relief which it did not seek, it has made the order on a lis not raised by the party. This will be an order made without jurisdiction and therefore a nullity; see Umenweluaku v. Ezeana (1972) 5 SC. 343; Western Steel Works Ltd. V. Iron and Steel Workers Union (1986) 3 N.W.L.R. (Pt.30) 617 at 618. (The underlining is supplied by me for emphasis). See also the cases of: (1) Pada v. Galadima (supra) and (2) Zaccala v. Edosa (2018) 6NWLR (Pt.1616) p.528. –
CASES CITED
Not Available
STATUTES REFERRED TO