CORAM

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

HON. JUSTICE, PATRICIA A. MAHMOUD JUSTICE, COURT OF APPEAL

HON. JUSTICE, PETER O. AFFEN JUSTICE, COURT OF APPEAL

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

HON. JUSTICE, PATRICIA A. MAHMOUD JUSTICE, COURT OF APPEAL

HON. JUSTICE, PETER O. AFFEN JUSTICE, COURT OF APPEAL

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PARTIES

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1 SAMAILA BULUS

2 MAKONG BULUS

APPELLANTS 

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WILLIAM KWANTI

RESPONDENTS 

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AREA(S) OF LAW

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LAND LAW, PROPERTY LAW, EVIDENCE, PRACTICE AND PROCEDURE, CIVIL PROCEDURE, TITLE TO LAND

 

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SUMMARY OF FACTS

The Respondent claimed ownership of land in Kassa Village, Yorro Local Government, Taraba State through inheritance from his mother who received it as a gift in 1986. The original founder was Mazang Kinkin who deforested the land, followed by his son Majo Kinkin and granddaughter Donki Majo who gave it to Respondent’s mother. The Appellants claimed ownership through inheritance tracing back to Gusa Mading who they alleged first deforested the land 150 years ago. The trial court found in favor of the Respondent and declared title to him. The Appellants appealed.

 

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HELD

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Appeal dismissed. Trial court’s judgment affirmed. Cost of N200,000 awarded against Appellants.

 

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ISSUES

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1. Whether the trial court was right in holding that the Respondent proved the description of the land with certainty to warrant a declaration of title?

2. Whether the judgment was predicated upon proper evaluation of evidence adduced by the parties?

 

 

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RATIONES DECIDENDI

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IDENTITY OF LAND – EFFECT OF PARTIES’ KNOWLEDGE

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“The parties, themselves, know the portion of the land in dispute. In the circumstance, the identity of the disputed portion of land is not in dispute. The principle well established since BARUWA v. OGUNSHOLA (1938) 4 W.A.C.A 159, is that the onus is on the Plaintiff who seeks a declaration of title to land to show clearly the area of land to which his claim relates. Where however, the parties themselves know the portion of land in dispute this principle does not strictly apply.” – Per Eko, JSC

 

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TRADITIONAL HISTORY – EFFECT ON LAND IDENTITY

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“And where the proof is based on traditional history, the identity of the land cannot be in issue, where the parties are fully agreed as to the land in dispute and asserted same in their pleadings, and described it in their evidence, in a manner that a surveyor can trace the same, based on the description.” – Per Mbaba, JCA

 

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MINOR DISCREPANCIES – EFFECT ON WITNESS CREDIBILITY

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“Evidence is said to contradict one another when it asserts or affirms and not where… there are some minor discrepancies or omissions in details. Consequently, the Court will not regard every discrepancy or inconsistency of witness as contradictions.” – Per Mbaba, JCA

 

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COUNTERCLAIM – NECESSITY IN LAND DISPUTES

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 “Where the Defendant failed to Counter-claim, as in this case, his description of the land becomes immaterial, where the Plaintiff is held to have discharged the burden of identifying the land with credible evidence.” – Per Mbaba, JCA

 

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EVALUATION OF EVIDENCE – SEQUENCE AND APPROACH

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“The trial Court in its judgment should begin by considering the Plaintiff’s case and examine whether the Plaintiff has led evidence on all material issues of fact which would, if accepted after evaluation, entitle him to succeed.” – Per Mbaba, JCA

 

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BOUNDARY DISPUTES – RELEVANCE TO IDENTITY

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“Since the controversy is not about the land abutting or sharing common boundary with the disputed land, ascription of title in respect of a land abutting the land in dispute to a person other than the person to whom the claimant ascribed title does not amount to disputation of the identity of the land in dispute.” – Per Peter O. Affen, JCA

 

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PLEADINGS – ROLE IN DETERMINING ISSUES

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“Issues for trial, including the issue of the identity of disputed land, are framed by the pleadings filed and exchanged by the parties in a case. Thus, where the defendant did not make identity an issue in the pleadings and the land is well known to the parties, identity cannot be said to be in issue.” – Per Peter O. Affen, JCA

 

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DECLARATION OF TITLE – BURDEN OF PROOF

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“In a claim for declaration of title to land the onus of proof lies on the Plaintiff who must succeed on the strength of his case and not on the weakness of the defendants’ case.” – Per Mbaba, JCA

 

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COMPETING CLAIMS – ORDER OF CONSIDERATION

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“In a competing claim of title, that Court has a duty to first consider the Plaintiff’s title and decide upon it before a consideration of the title of the defendant arises.” – Per Mbaba, JCA

 

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WITNESS TESTIMONY – EVALUATION OF DISCREPANCIES

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“Minor discrepancies between a previous written statement and subsequent oral testimony are to be expected and do not destroy the credibility of the witness.” – Per Mbaba, JCA

 

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EVALUATION OF EVIDENCE – APPELLATE INTERVENTION

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 “The duty of evaluating the evidence of the parties is that of the trial Court, which had the opportunity to see hear and watch the demeanour of the witnesses.” – Per Mbaba, JCA

 

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IDENTITY OF LAND – CERTAINTY REQUIREMENT

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“Where the land in dispute is certain and clear and there is no difficulties whatever in identifying its precise extent and boundaries, a declaration of title may be made even without it being based on or tied to survey plan.” – Per Iguh, JSC

 

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UNCONTROVERTED EVIDENCE – EFFECT ON TITLE

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“Appellants did not controvert or discredit the said evidence on the root of title and the same were deemed admitted.” – Per Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act, 2011

2. High Court Law of Taraba State

3. Court of Appeal Rules

 

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