JATAU & ANOR v. SANTIVI (2020)

JATAU & ANOR v. SANTIVI

(2020)LCN/14010(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, March 12, 2020

CA/YL/22/2019

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1) AKILA JATAU 2) NUHU AKILA APPELANT(S)

And

ZABADI SANTIVI RESPONDENT(S)

RATIO

WHETHER OR NOT A JUDGE IS TO CONSIDER THE TOTALITY OF EVIDENCE ADDUCED BY PARTIES BEFORE JUDGEMENT IS GIVEN

The law is settled that before a judge before whom evidence is adduced by the parties in a civil case comes to a decision as to which side he believes or accepts and which evidence he rejects, he should first of all put the totality of the evidence on an imaginary scale and weigh them together and see which is heavier by the probative value of the testimony of those witnesses – Mogaji v. Odofin (1978) 4 SC 91 at 94-96. PER BAYERO, J.C.A.

WHETHER OR NOT PLEADINGS NOT SUPPORTED GOES TO NO ISSUE

The law is settled that a pleading not supported by evidence goes to no issue. Facts pleaded must be supported by evidence or they would be deemed abandoned. At paragraph 6 of the amended statement of claim it was averred thus:-
“The Plaintiff avers that the land in dispute was deforested by his father Santivi Bevikati over one hundred years ago”. PER BAYERO, J.C.A.

WHETHER OR NOT A CLAIMANT/PLAINTIFF WHO FAILS TO DISCHARGE THE BURDEN OF PROVING HIS OOT OF TITLE IN A CASE FOR DECLARATION OF LAND, CANNOT BE ENTITLED TO THE DECLARATION SOUGHT

It is trite that where a claimant/plaintiff in a case for declaration of land fails to discharge the burden of proving his root of title to the land he pleaded, he cannot be entitled to the declaration he sought. In Cornelius v. Registered Trustees of Cherubium & Seraphim of Nigeria (2003) 7 SCNJ 463 the Supreme Court held:- “Admittedly, since there was no averment that Omowole founded Igbokoda, the evidence cannot be taken as if he did. However, it shows that his claim that his grandfather founded Igbokoda is unreliable apart from the inadequate pleading.”PER BAYERO, J.C.A.

WHETHER OR NOT A PARTY WHO SEEKS A RELIEF OF AN ORDER OF DECLARATION OF TITLE OF LAND PREDICATED ON TRADITIONAL HISTORY MUST PROVE HIS CASE WITH CREDIBLE EVIDENCE

It is a cardinal principle of law that a party who seeks a relief of an order of declaration of title of land which is predicated on traditional history must prove his case with cogent, credible, consistent and uncontradicted evidence. Evidence that is not consistent but full of discrepancies cannot sustain an action of title to land. See Onuoha v. Nwogu (2009) AFWLR (Pt. 476) 1888-1889. PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of Taraba State High Court sitting in Jalingo delivered by Yakubu J. on 22nd December, 2017. The Respondent/Plaintiff claims before the lower Court as follows:-
1) A DECLARATION of title to the land lying and situate at Unguwar Uyange, Misheli Village, Lau Local Government Area, Taraba State and bordered to the North by the land of the 1st Defendant, to the South by Jalingo-Numan highway, to the East by the land of Hananiya Jabe and to the West by the land of Jowen Sule Jatau.
2) AN ORDER of perpetual injunction restraining the Defendants, their privies, agents and successors in title from trespassing into the land in dispute
3) Cost of litigation.

The lower Court entered Judgment in favour of the Respondent. Dissatisfied, the Appellants filed their Notice of Appeal on 20th March, 2018. The Appellant’s Brief was filed on 23rd April, 2019. The Respondent’s Brief was filed on 28th June, 2019 but deemed properly filed and served on 7th October, 2019. In the Appellant’s Brief, three issues are distilled for determination:-

ISSUE ONE:
Whether the Appellant was accorded fair hearing at the locus in quo, (Distilled from ground 8 of the Notice of Appeal).
ISSUE TWO:
Whether the learned trial judge made a correct approach to the evidence led by the parties by coming to a conclusion on the evidence led by the Plaintiff/Respondent without considering that of the defendants/Appellants’ (Distilled from grounds 1, 2, 3 and 9 of the Notice of Appeal).
ISSUE THREE:
Whether the learned trial judge was right when he declared title to a land which was neither pleaded, nor proved by the Respondent in his favour (Distilled from grounds 4, 5, 6 and 7 of the Notice of Appeal)

On issue one, it is submitted that the right to fair hearing is guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and its breach vitiates the whole proceeding referring to Unical v. Akintunde (2013) 3 NWLR (Pt. 1340) 1.

That a careful perusal of the record of proceeding at page 183 and 184 will reveal that the plaintiff’s witnesses were not present at the locus in quo. That the only witnesses there were DW1 and DW3 and were not given the

opportunity by the Court to show the land they gave evidence in the Court room. According to Counsel, the defence Counsel was not given the opportunity to cross-examine the Plaintiff. That the law is well settled that a party must be given the opportunity to cross examine the witnesses that testified against him.

That the 1st Defendant did not testify in the Court room but was asked by the Court to show the land at the locus.

He urged the Court to resolve the first issue in favour of the Appellants.

On issue two, it is submitted that the trial judge failed in his duty to act as an impartial arbiter by deciding the case before him on correct principles of law and on proper evaluation of the evidence adduced by the parties as enunciated in Mogaji v. Odofin (1978) 4 SC 91 at 94-96.

That the learned trial judge failed to place side by side the case of the parties on the imaginary scale and the law to ascertain which one is heavier than the other.

That the law is well settled that one who gave conflicting evidence to establish a root of title cannot have pronouncement as to title in his favour – Michael Eyo v. Emeka Onouha (2011) 195 LCRN (Pt. 33) 84.

According to Counsel, the Plaintiff pleaded his root of title at paragraph 6 of his amended statement of claim thus:
“The Plaintiff avers that the land in dispute was deforested by his father, Santivi Bevikati over One Hundred years ago”.

That during the visit to locus, the plaintiff (as PW2) somersaulted and told the trial Court that:
“My grandfather was the first person that deforested the land and stayed there before he died and my father also stayed on the land ….”.

That PW3 HannaniyaJabe stated under cross – examination that:
“I was told by my elder brothers that my father and Zabade’s father were the one that first deforested the land in dispute”
Page 151 lines24 –26 of the printed record.

That the Plaintiff/Respondent also pleaded in paragraphs 9 and 10 that Jabe founded the present Mishelli village but under cross – examination he told the Court that:
“Before Jabe came to Mishelli there were other people. When Jabe first came to Mishelli, he stayed with some people. I don’t know their names because I was not there.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Page 150 lines 15 – 19 of the record.

That the issue of customary tenancy pleaded in paragraphs 24 (a) – (d) and 27 – 34 of the amended Statement of Defence (Pages 173 – 176 of the record) were never challenged. That the findings by the trial Judge that the Defendants could not adduce evidence is not borne out of the record. He urged the Court to resolve the second issue in favour of the Appellants.

On issue three, it is submitted that the law is well settled that the issue of identity of land in dispute being crucial, the Plaintiff/Respondent must prove same to succeed in a declaration of title. Ibhafidon v. Igibinosun (2001) 6 N SCQR 315 at 323 – 324.

That the Respondent tried to establish the identity of the land pleaded by him, called witnesses and gave evidence.

That PW1 under cross – examination told the trial Court that the land in dispute is bordered to the West by one John Buba and Akila Jatau (1st Defendant) bordered it to the North.

But that PW2, the Plaintiff told the Court that the person sharing boundary to the North is John Jatau not the 1st Defendant. That the 1st Defendant (Akila Jatau)

has no common boundary with the land in dispute. That he did not share boundary with the 1st Defendant. But for PW3, he stated that to the North of the land is John Wesley. That the 1st Defendant did not share common boundary with the land. To the West is a footpath and East is Akila’s House. (pages 148 lines 10 -14, 149 lines 15 – 24, 152 lines 2 – 10 of the Record. That these pieces of evidence elicited from the witnesses of the Plaintiff/Respondent sharply contradicted and conflicted with the description of the land pleaded by the Plaintiff in paragraph 6 of his amended statement of claim. That the trial judge ought not to have embarked on a visit to the locus but to dismiss the Plaintiff/Respondent’s case.That a visit to the locus is not a must before a Court can reach a decision as to where the land in dispute is situated-Odiche v. Chibogwu (1993) NWLR (Pt. 354) 78 Ratio 5. He urged the Court to resolve issue three in favour of the Appellants.

In the Respondent’s Brief, the Respondent adopted the three issues formulated by the Appellants for determination. On issue one, it is submitted that the doctrine of fair hearing

is fundamental to every proceeding in Court. That the Appellants are claiming that they were not accorded fair hearing when the trial Court visited the locus in quo. That their witnesses were not given the opportunity to show to the Court the land they gave evidence in respect of. According to counsel, it is not mandatory that when a visit to locus in quo is conducted by a Court, evidence must be taken there- Adamu v. Yan Tamaki (2012) ALL FWLR (Pt. 626) 503 at 510 Ratio 10.

That fair hearing was accorded to all the parties during the visit to the locus (Pages 183 to 185 of the record of proceedings). That the parties were given equal opportunity to present their case with respect to the land in dispute.

That the fact that DW1 and DW3 were not called upon to show the Court the land in respect of which they gave evidence, does not in any way amount to denial of fair hearing.That the 1st Defendant/Appellant who was present at the locus was given that opportunity. More so, that it is not every failure or omission to afford a party a hearing on an issue that would be fatal to the proceedings – Egbonyi v. NAL Merchant Bank PLC (2010) ALL FWLR (Pt. 528) 886 at 888 Ratio 1.

That the contention by counsel to the Appellant that he was not given an opportunity to cross examine the plaintiff at the visit to locus is misplaced. That the record of proceedings shows at page 184 that the trial judge stated thus, ”Counsel on both sides asked questions and same were noted by the Court accordingly”. According to counsel, it is therefore not correct for the counsel to the Appellants to claim that he was denied opportunity to cross-examine the plaintiff. That the statement by the trial judge with respect to what transpired at the locus in quo would be taken as the accurate account of what transpired at the visit to the locus – Arowolo v. Omole (2010) ALL FWLR (Pt. 514) 117 at 120 Ratio 2.

That although the 1st Appellant did not testify during the trial, the step taken by the trial judge to ask him to show the land is not out of place.That as a party in the matter, the 1st Appellant was in a better position to show the land at the locus. According to counsel, assuming without conceding that it was an irregular procedure to call the 1st Appellant to show the land at the locus, it did not affect

materially the proceedings or outcome of the matter. That an Appeal will not be allowed merely because the trial Court failed to comply with the procedure laid down for a visit to locus in quo, unless the failure led to a miscarriage of justice – Moji v. Shafi (1965) 1 N.M.L.R 33 at 35.

He urged us to resolve issue one in favour of the Respondent and against the Appellant.

As to issue two, it is submitted that it is trite that civil matters are determined on preponderance of evidence and balance of probabilities. That the learned trial judge considered and placed the case of the parties on the imaginary scale of justice before arriving at his decision. That at pages 260 to 262 of the record of proceedings, the trial judge evaluated the pleadings and evidence of the Appellants before arriving at his decision.

That the trial judge placed more reliance in his evaluation on the evidence of the Respondent because he was the plaintiff and the reliefs sought are declaratory in nature. According to counsel, the law is settled that in an action for declaration of title to land, a claimant must succeed on the strength of his case and not on the weakness

of the defendant’s case -Eya v. Olopade (2011) ALL FWLR (Pt. 584) 28 at 31 Ratio 7.

That assuming without conceding that the learned trial judge did not consider the evidence of the Appellants’ witnesses before arriving at his decision, it is submitted that this Court has the power to consider and evaluate the evidence of the Appellants witnesses – Yakubu v. U.B.A PLC (2012) ALL FWLR (Pt. 611) 1468 at 1471 Ratio 1. And Lorakpen Begha v. Mkpentiza (2004) 4 NWLR (Pt. 652) 211-212.

That counsel to the Appellants has submitted that the pleadings of the Respondent with respect to his root of title and the evidence adduced thereof is conflicting. According to counsel, there is no conflict whatsoever with the pleadings of the Respondent. That a cumulative reading of paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 of the Respondent’s amended statement of claim unequivocally revealed a consistent narrative of how the land in dispute was founded by the Respondent’s father, Santivi Bevikati. (Pages 106-107 of the record of proceedings).

That the evidence of the Respondent’s witnesses with respect to his root of title was not debunked by the

Appellants during cross-examination. That under cross-examination, PW3, Hananiya Jabe stated that he was told by his elder brother that his father and the Respondent’s father were the ones that deforested the land in dispute (Page 151 of the record). That the Respondent who testified as PW2 mentioned in his pleadings and evidence that his father deforested the land in dispute and he inherited same from his father. (Page 106, line 17 and page 119 line 13 of the record of proceedings). That minor discrepancies in statement of witnesses cannot be termed as contradiction -Wachukwu v. Owunwanne (2011) ALL FWLR (Pt. 589) 1044 at 1050 Ratio 11. That the Respondent has through the evidence of his witnesses discharged the burden placed on him by convincingly tracing his root of title. That all the witnesses for the Respondent were consistent in their testimonies on how the land in dispute was founded and who founded it.

That the Respondent’s traditional history is more cogent and believable than the Appellants’. In paragraph (4) of their amended statement of defence, the Appellants stated thus:
“The Defendants deny paragraph 4 of the

statement of claim and put the plaintiff to the strictest proof of same. In further answer, the 1st Defendant avers that himself and his brothers are the owners of the land in dispute, having inherited same from their father JatauNyaki who deforested the land in dispute’’.
That there was nowhere else in their pleadings that the Appellants showed how their father, JatauNyaki founded the land in dispute. (pages 168-175 of the record of proceedings).
According to counsel, the evidence adduced by the witnesses for the Appellants were unreliable and weak having been discredited under cross examination. That where the evidence of the Defence favours the Plaintiff’s case, it is an admission against their interest -Sanya v. Saumam (2012) ALL FWLR (Pt. 618) 917 at 921 Ratio 3.
That DW4, the 2nd Appellant in paragraph 12 of his statement on oath stated:-
“I was born and grew up on the land in dispute while JatauNyaki was still alive and as a grandfather he narrated the history of how the village Mishelli was founded to me’’.
(Page 54 paragraph 12, record of proceedings).
That under cross examination DW4

stated that he did not know when his grandfather JatauNyaki died, because he wasnât born then. (Page 180 line 8-11 of the record of proceedings). That this simply implies that he does not know how the land in dispute was founded and his evidence was also contradictory.
That the Appellants failed to prove by way of credible evidence that the Respondent was their tenant because their pleadings that they are the landlords of the Respondent was not supported by evidence. According to counsel, the failure of the 1st Appellant to testify rendered impotent every pleading of fact with regards to that assertion. That when the trial Court visited the land in dispute, it was discovered that it was only the houses of the Respondent and his family that are on the land in dispute. It is submitted that the learned trial judge was right to have held that the Appellants could not prove that the Respondent was their tenant on the land in dispute. He urged this Court to resolve issue two in favour of the Respondent.
On issue three, it is submitted that the identity of the land in dispute was not in issue. That in paragraph 4 and 5 of the amended statement of

claim, the Respondent identified the land in dispute.(Page 106 of the Record). That the Appellant also identified the land in dispute in paragraph 5 of the amended statement of defence.(Page 168 of the Record). A careful perusal of the aforementioned pleadings will reveal that the identity of the land in dispute and the boundaries were not in dispute. He referred to Nwokidu v. Okanu (2010) ALL FWLR (Pt. 522) 1633 at 1636 Ratio 4.

It is submitted that assuming without conceding that there are discrepancies in the evidence of the witnesses to the Respondent with regards to the boundaries of the land in dispute, the visit to the locus conducted by the trial Court has laid to rest any form of discrepancy that occurred at the trial – Nwankwo v. Jubril (2012) AFWLR (Part 646) 483 at 486 Ratio 3.

That at the locus, the trial Court ascertained the actual area of the land in dispute after hearing from the parties. That the trial Court also observed the buildings and other features on the land in dispute. That the law is settled that a Court can declare title to a smaller portion of the land originally in dispute -Sanya v. Saumam (Supra) 922 and 923 Ratio 6.

That at the locus, the 1st Appellant did not dispute the portion shown by the Respondent (Page 184 of the Record). He urged us to resolve the third issue in favour of the Respondent and against the Appellants.

DETERMINATION OF THE APPEAL
I will determine this Appeal on the three issues formulated by the Appellants which the Respondent adopted. The first issue is “Whether the Appellant was accorded fair hearing at the locus in quo”. Learned counsel for the Appellant referred to Pages 183 to 184 of the printed record and submitted that the plaintiffs’ witnesses were not present at the locus. That only DW1 and DW3 were at the locus but were not given the opportunity to show the land in respect of which they gave evidence. That the defence counsel was not given the opportunity to cross examine the plaintiff. Reference was made to Baba v. N.C.A.T.C.A (Supra). According to counsel, the 1st Defendant did not testify in Court but was asked by the Court to show the land in dispute at the locus.

On the side of the Respondent’s counsel it is argued that it is not mandatory that when a Court visits locus evidence must

be taken there. He citedAdamu v. Yantamaki (Supra) in support. It is further argued that pages 183 to 185 of the printed record shows that both parties were given the opportunity to state their cases at the locus.

RESOLUTION OF ISSUE ONE
The essence of a visit to locus in quo is to enable the parties to show the boundaries of the land in dispute. A careful look at the printed record at pages 183 to 185 shows that the lower Court visited the locus in quo on 11th November, 2017. The record shows that parties were before the Court. Z. A. Ma’aji Esq. represented the plaintiff/Respondent, while M. G. Josiah Esq. represented the Appellants/Defendants. The record further shows that after explaining to the parties the purpose of the visit to the locus, the Court called on parties to show the area in dispute. The record at page 184 shows that the plaintiff and the 1st Defendant stated their case. The Respondent stated that:- “the land starts from the Nim tree in front of the Pastor’s house straight to the main road and traversed to the main road close to the 1st defendant’s stores by the main road.” On the side of the 1st Appellant

he stated that “the matter was once reported to the Magistrate and also the District head of Kunini who advised us to maintain peace and resolve our differences amicably” as shown at page 184 of the record. It is the grouse of the Appellant’s counsel as argued at page 6 of the Appellant’s Brief that DW1 and DW3 who were present at the locus were not given the opportunity by the Court to show the land. However, the record shows that learned counsel for the Respondent told the lower Court at the locus that DW1 and DW3 were present at the locus, while DW2 is sick and DW4 has travelled outside jurisdiction and that they were ready. As I stated earlier in this judgment, the 1st Appellant gave evidence at the locus. The Appellant’s counsel who was present at the locus representing the Appellants did not apply that DW1 and DW3 will testify at the locus but presented the 1st Appellant. Furthermore, the printed record did not show that learned counsel to the Appellants has requested to cross examine the Respondent who testified at the locus and the request was refused. The lower Court then gave the parties time to file their written

addresses and adjourned the matter to 7th December, 2017 for adoption (See pages 184 to 185 of the printed record).

It therefore follows that both parties were accorded fair hearing at the locus. The first issue is therefore resolved in favour of the Respondent and against the Appellants.

ISSUE TWO
The second issue is:-
“Whether the trial judge made the right approach to the evidence led by the parties by coming to a conclusion on the evidence led by the Plaintiff/Respondent without considering that of the Defendant/Appellants”.

It is argued by the Appellants’ counsel that the trial judge failed in his duty to act as an impartial arbiter between the parties by failing to place side by side the case of the parties on imaginary scale. That the trial judge did not consider the Appellants’ case at all. That while at paragraph 6 of the amended statement of claim the plaintiff pleaded his root of title to his father Santivi Bevikati who deforested the land in dispute over one hundred years ago (page 106 of the printed record), at the locus he stated that his grandfather was the first person that deforested the land

and stayed there before he died.

According to counsel, while the Plaintiff/Respondent stated at Paragraphs 9 and 10 of the amended statement of claim that his father’s elder brother by name Jabe migrated to Misheli when it was a thick forest, he cleared it and founded Misheli village (page 107 of the printed record); during cross examination at page 150 of the record, the witness stated that before Jabe came to Misheli, there were other people there.

On the part of the Respondent’s counsel he argued that the trial judge considered and placed the case of the parties on an imaginary scale of justice before arriving at his decision. That even if the trial Court did not consider and evaluate the evidence of the witnesses, the Appellate Court has the power to do that and cited Yakubu v. U.B.A. Plc. (Supra) in support.

RESOLUTION OF ISSUE TWO
Y

The judgment of the lower Court appealed against spans from page 230 to 265 of the printed record. At page 255 of the record the lower Court held:-
“Having produced in details the case of the parties before the Court, their respective legal arguments/submissions, it is now for the Court to further place side by side the factual situations in the case vis-a-vis the position of law with a view to ascertain whether the Plaintiff has proved his claim before the Court that will entitle him to the reliefs he sought in paragraph 47(a), (b) and (c) of the amended statement of claim”.
However, a careful look at the judgment of the lower Court will reveal that the trial judge did not place side by side the case of the parties on the imaginary scale of justice to ascertain which one is heavier than the other. This is because the Court did not put the Defendants’/Appellants’ case on the imaginary scale more especially the evidence of DW1 Johnson Jidda Jatau, DW2 Jauro Elihu Kofa, DW3 John Akawu and DW4

Nuhu Akila (2nd Appellant) who gave evidence in chief and were cross examined respectively as shown at Pages 160 to 164 and 179 to 180 of the printed record respectively.
What the lower Court did in respect of the case of the Appellants/Defendants as shown at page 261 of the printed record is a mere passing comment thus:-
“…Permit the Court to observe here that the only attempt made by the Defendants to establish their root of title vide traditional history were by the depositions of the 1st Defendant and that of his brother one Yuguda Jatau in their statement on oath and who were also listed as witnesses for the Defendants. However, the said 1st Defendant and his brother Yuguda Jatau did not testify in their defence, thus abandoning their depositions aforesaid in support of their pleadings if any regarding their traditional evidence or root of title.”
As I stated earlier, even though the 1st Defendant/1st Appellant and his brother did not testify before the lower Court, the Court ought to have considered the evidence of DW1, DW2, DW3, and DW4 respectively that testified for the Appellants/Defendants before it and were duly

cross examined before arriving at the decision it did. By Section 15 of the Court of Appeal Act, this Court has full jurisdiction to take over the whole proceedings instituted before the lower Court as if the proceedings had been instituted before us. The Section provides:-
“The Court of Appeal may from time to time, make any order necessary for determining the real issue 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 the 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 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 the Court, or in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
It therefore follows that when Section 15 is invoked, it is to facilitate the speedy administration of justice. It is designed to avoid multiplicity of proceedings and hearings. Instead of remitting the case back to the trial Judge for a trial, Section 15 empowers the Court of Appeal to assume the jurisdiction of the trial Court and determine the real issue in controversy. This is to save the much needed judicial time in the administration of justice. See Inakoju & Ors. V. Adeleke & Ors. (2007) LPELR (1510) SC.
I will now proceed to consider and evaluate the evidence of DW1, DW2, DW3 and DW4 which the lower Court has failed to do.

The evidence in chief of DW1, DW2, DW3 and DW4 as shown at pages 35 to 40, 41 to 44, 67 to 70 and 52 to 57 of the printed record is common to the effect that the land in dispute is bordered to the North by the land of the 1st Defendant/1st Appellant, to the South by

Jalingo Numan Highway, to the East by the land of Akawu John Wesley and to the West by the compound of Reverend Innocent Solomon. That the Defendants/Appellants inherited the land from their late father John Nyaki who migrated from a village called Komidin deforested the disputed land and found the present Misheli village. That the Respondent’s father Santivi Bevikati migrated from Uyange Hill in Adamawa Province to Sayonti, later left Sayonti and settled at Kunini. That from Kunini he was visiting Jabe his Uncle at Misheli.That Jabe pleaded with JatauNyaki to give Santivi portion of his land which Jatau agreed and gave Santivi a portion of his land to settle temporarily.

During the cross examination of the witnesses as shown on Pages 160 to 164 and 179 to 181 of the Printed record respectively, their evidence was not shaken or contradicted. The law is trite that it is deemed admitted. It therefore follows that if the trial Judge had considered and evaluated the evidence of DW1, DW2, DW3 and DW4 he would have entered judgment for the Appellants and not the Respondent. The second issue is therefore resolved in favour of the Appellants and against the Respondent.

ISSUE THREE
The third issue is:-
“Whether the trial judge was right when he declared title to a land which was neither pleaded nor proved by the Respondent in his favour”.

Counsel to the Appellant argued that the Respondent/Plaintiff tried to establish the identity of the land he pleaded by giving evidence and calling witnesses. That PW1 under cross examination told the Court that the disputed land is bordered to the West by the land of John Buba and Akila Jatau (1st Defendant) bordered it to the North. That PW2 (the plaintiff) told the Court that the person that shared boundary with the land to the North is John Jatau not Akila Jatau and that Akila Jatau has no common boundary with the disputed land or the 1st Defendant. That PW3 stated that to the North of the land is John Wesley and to the West is a footpath and to the East is Akila’s house (page 148 of the printed record).

According to counsel, the evidence elicited from the witnesses as shown above contradicted and conflicted with the description of the land pleaded by the plaintiff in paragraph 6 of the amended statement of claim. On the side of the

learned counsel to the Respondent, it is submitted that from paragraphs 4 and 5 of the amended statement of claim and paragraph 5 of the amended statement of defence, the Respondent and the Appellants have identified the land in dispute. As such the identity of the land is not in issue citing Nwokidu v. Okanu (Supra). That even if there are discrepancies in the evidence of the Respondent’s witnesses with regards to the boundaries of the land in dispute, the locus visit by the trial Court laid to rest such discrepancies referring to Nwankwo v. Jubril (Supra).

RESOLUTION OF ISSUE THREE
The law is settled that a pleading not supported by evidence goes to no issue. Facts pleaded must be supported by evidence or they would be deemed abandoned. At paragraph 6 of the amended statement of claim it was averred thus:-
“The Plaintiff avers that the land in dispute was deforested by his father Santivi Bevikati over one hundred years ago”.

However the Plaintiff as PW2 somersaulted and gave evidence contrary to his pleading when he stated at the locus:-
“My grandfather was the first person that deforested the land and

stayed there before he died….”

Furthermore PW3 Hannaniya Jabe under cross examination gave a different account of who actually founded the land in dispute. He stated at page 151 of the printed record thus:-
“I was told by my elder brothers that my father and Zabade’s father were the ones’ that deforested the land in dispute”.

cardinal principle of law that a party who seeks a relief of an order of declaration of title of land which is predicated on traditional history must prove his case with cogent, credible, consistent and uncontradicted evidence. Evidence that is not consistent but full of discrepancies cannot sustain an action of title to land. See Onuoha v. Nwogu (2009) AFWLR (Pt. 476) 1888-1889. Issue three is therefore resolved in favour of the Appellants and against the Respondent. Although issue one is resolved in favour of the Respondent, having resolved issues two and three (issues that are the kernel of this Appeal), the Appeal succeeds in part. The Judgment of the lower Court in Suit No. TRSJ/16/2016 delivered on 22nd day of December, 2017 by Yakubu J of Taraba State High Court sitting in Jalingo is hereby set aside. Parties to bear their respective costs.

CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment, just delivered by my learned brother Abdullahi M. Bayero JCA.

For the reasons contained in the lead judgment, I too allow the appeal and set aside the judgment of the Court below.

abide by all other orders including the order as to costs.

Appearances:

T. Ieave, Esq., holding brief of A. G. Josiah For Appellant(s)

G. Seudukteri holding brief of Z. A. Maaji Esq. For Respondent(s)