IDRIS v. DINO & ORS (2020)

IDRIS v. DINO & ORS

(2020)LCN/14844(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/J/94/2020

RATIO

WORDS AND PHRASES: DEFINITION OF A PERVERSE DECISION OF A COURT

Webster’s online Dictionary defines a perverse decision of a Court as one which among others is contrary to the evidence before the Court. A decision based on ‘evidence’ from witness or witnesses who never testified before the Court is certainly a perverse one that cannot be allowed to stand. PER MOSES UGO, J.C.A.

LAND LAW: FIRST DUTY OF ANY PERSON CLAIMING DECLARATION OF TITLE TO LAND

it is well settled law that the first duty of any person claiming declaration of title to land or its modern equivalent of right of occupancy or even just injunction to land is to show clearly the area or identity of the land to which his claim relates and upon which the Court’s order of declaration or injunction will run: see Efetiroroje v. Okpalefe ll (1991) 5 NWLR (PT 193) 513 @ 533, Babatola v. Aladejana (2001) FWLR (PT 61) 1670 @ 1682; Dada v. Dosunmu (2006) 1 NWLR (PT 1010) 134 @ 156; Awote & Ors v. Owodunni & Anor. (1987) 1 NWLR (PT 87) 366, (1987) LPELR-659 (SC) p.6. If such a claimant fails in that duty, the Court will not even bother going to other issues like whether he proved his ownership, for ownership can only be meaningful if it relates and is tied to an identified area of land: see Awote & Ors v. Owodunni & Anor supra. PER MOSES UGO, J.C.A.

LAND LAW: PRINCIPLES ESTABLISHED BY THE COURTS ON WHEN THE DUTY TO PROVE IDENTITY OF LAND IN A CLAIM FOR DECLARATION OF TITLE OR INJUNCTION OVER LAND

Over time, some principles have been established by the Courts on when the duty to prove identity of land in a claim for declaration of title or injunction over land arises. These can be summarized as follows: First is that issue of identity of land claimed will only arise in a case where the defendant (in this case respondents) makes it an issue in his statement of defence: see Anyanwu v. Uzowuaka (2009) ALL FWLR (PT 499) 411 @ 436; Adenle v. Olude (2003) FWLR (PT 157) 1074 @ 1076; Buraimoh v. Bamgbose (1989) 3 NWLR (PT 190) 352 @ 365, 369. Also, where the land is well known to both parties, issue of identity of land will not arise and the trial Court cannot possibly reach a conclusion that the area claimed is uncertain. Consequently, where from the evidence or processes filed by parties the identity of the disputed land is clear, it will not be open to the defendant to raise issue of identity of disputed land: see Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360 @ 374 – 376; Osho v. Ape (1998) 8 NWLR (PT 562) 492 @ 506 – 507; Oshodi v. Eyifunmi (2000) 1 SCNJ 295 @ 325; Motanya v. Elinwa (1994) 7 NWLR (PT 356) 252 @ 361; Ayuya & Ors v. Yonrin & Ors (2011) 5 SCM 16 @ 38; Tanko v. Echendu (2010) 2 S.C. (PT 1) 33, 60, 63-65, 67.
Furthermore, even though a plaintiff’s description of the land is vague but the defendant counterclaims and in his counterclaim clearly identifies the land in dispute, a declaration which will otherwise not be granted can be granted on that basis: Okedare v. Adebara (1994) 6 NWLR (PT 349) 157. The same principle applies where the defendant clearly identifies a disputed land in his statement of defence: Anyanwu v. Uzowuaka (2009) ALL FWLR (PT 499) 41. PER MOSES UGO, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

MALLAM ABUBAKAR IDRIS (Suing For Himself And On Behalf Of Members Of Bakura Sakin Yaki) APPELANT(S)

And

1. RABIU DINO 2. DINO KWARI 3. WAMBAI WAMBAI RESPONDENT(S)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Bauchi State of the 19th day of December, 2019 (A.M. Liman, J., presiding) dismissing the claim of the appellant as plaintiff in Suit No. BA/91/2016 against respondents who were defendants as well as counterclaimants in the case.

Appellant for himself and on behalf of members of Bakura Sakin family claimed against respondents (1) Declaration that a particular farmland land situate at the outskirt of Wuro Ladde town which the respondents are occupying on loan, according to appellant, belongs to his family; (2) an order of Court ejecting respondents from that land and or further working on or tampering with it for any purpose; (3) general damages of ₦1,000,000.00; (4) special damages of ₦60,000.00 and (6) Cost of the action.

His case as put forward in his not so elegantly drafted amended statement of claim is that the land the subject of his claim is a large piece of farmland at the outskirts of his Wuro Ladde village, which village, he averred, was originally a village of Fulani people who are still the rulers and the people

that own the land in that village He claimed that the disputed farmland was first cleared and owned by his family’s great grandfather, Bappatai, over 150 years ago and devolved from Bappatai to other members of the family named in his statement of claim down to himself. The said farmland, according to his statement of claim, is bounded by a place called Gibak on the West, by his Wuro Ladde village on the East, by a river on the south, and finally by Yola Nura town and katbala on the North. Respondents, he claimed, are members of a small nearby village called Badakoshi whose forebears first came to his Wuro Ladde village as strangers and it was one of his ancestors, Garkuwa, who permitted respondents’ ancestors to settle and reside in their present settlement of Badakoshi. The farmland in dispute, which he admitted is presently occupied by respondents, he was quick to point out, is however different from respondents’ Badakoshi village that his family gave respondents. That is even as he also claimed that the disputed portion of farmland was also given by his people to respondents’ ancestors Kwari and Wambai but only on loan and on

agreement that respondents would be paying his family tributes in the form of yearly grains and their use of the land would be subject to swapping of same with other portions of appellant’s land at the discretion of his family – thus effectively making respondents his family’s customary tenants on the disputed farmland which, according to his statement of claim, measures 35 hectares in width and 50 hectares in length. Respondents, he said, observed the terms of that customary tenancy until recently when they began asserting ownership of same in themselves, started using it without any reference to his family and even began to cut down trees there for wood. He said Respondents even resisted the new place his family gave them to cultivate in line with the terms of their customary tenancy; that instead, respondents proceeded to cultivate their old place and in the process destroyed even his beans farm, thereby making him incur losses to the tune of ₦60,000.00 (Sixty thousand Naira), hence his action and claims earlier reproduced.

Respondents in their statement of claim expressly denied being customary tenants of appellant and his people, ever

being gifted land by appellant’s ancestors either in their present settlement of Badakoshi or anywhere else or even that appellant’s Bappatai cleared their Badakoshi land or any portion of land used by them or observing any terms of customary tenancy. They rather claimed that they and over 250 inhabitants of their kin have been in occupation of their present settlement of Badakoshi for over 150 years. While admitting that Kwari and Wambai mentioned by appellant are their ancestors, they said neither Kwari and Wambai nor anybody connected to them ever asked for or was gifted land by appellant’s ancestors; that Kwari and Wambai were rather the first settlers on Badakoshi settlement. Their ancestors, they said, had founded their settlement of Badakoshi even before appellant’s ancestors settled in the neighbouring village of Wuro Ladde. They also denied appellant’s assertion that his grandparents were buried in their Badakoshi village or any land owned and occupied by them. They claimed they and 250 of their people have lived all their lives from time immemorial in their ancestral land of Bada Koshi. They said while their village is

in Banunu District, appellant’s Wuro Ladde village is in Mball District, even as both Districts are in the same Tafawa Balewa Local Government Area of Bauchi State. Regarding the boundaries of the land, they said if the land described by appellant as the land in dispute meant and refers to their Bada Koshi, it is bounded on the North by Yola Nura Village which is approximately three kilometers from it; on the South by a river, on the West by a village called Giba about 2 kilometers away; and on the East by Wuro Ladde about one and half kilometers away. They adopted all these averments in support of their counterclaim and added that their ancestors discovered and settled on Bada Koshi village and that they settled and have been in occupation of it over 150 years ago; that they had long settled in Bada Koshi (that being their own variant of the spelling of their village) before appellant’s ancestors came from a village called Dull to settle in the present Wuro Ladde. They repeated the boundaries of their Bada Koshi village as stated earlier in their statement of defence and counterclaimed from appellants (1) a declaration that they are the rightful

owners of the land known and referred to as Bada Koshi having inherited same from their descendants (sic: ancestors) who happened to be first settlers; (2) order of injunction restraining appellants from encroaching on the said Bada Koshi land; (3) ₦600,000.00 general damages, and (4) cost of the action.

The case went to trial and appellant who had earlier filed witness statement and also caused two other members of his family in Mallam Hassan Maihula and Jubrin Jauro to depose to witness statements in line with their statement of claim testified along with his said two family-members in line with their pleadings. In fact, Mallam Hassan Maihula testifying as plaintiff/appellant’s first witness (P.W.1) claimed under cross-examination (and it was supported by appellant, also under cross-examination) that it was to him respondents gave the agreed customary return of the land the previous year.

All three respondents/counterclaimants also deposed to witness statements and testified in the order they are listed in the case. Unlike appellant however, they called witnesses outside their family, one of such witnesses being the village head of Lim

(P.W.4). Other witnesses called by them in support of their ownership of the disputed land are Garba Madaki (P.W.5) of P.W.4’s Lim village and Mohammed Yusuf Sarkin Gibak (P.W.6), also known as Sarkin Gibak of Anwon Shagara. All three witnesses (P.W.4, P.W.5 and P.W.6) all confirmed that the disputed land, which they claimed knowledge of and described even its boundaries, belongs to Respondents.

After receiving final addresses from counsel to the parties, the trial High Court of Bauchi State (A. M. Liman, J.), in an extremely lengthy judgment that includes verbatim reproduction of the evidence of witnesses and even the written addresses of counsel to parties, dismissed appellant’s claim on the ground that he did not prove the identity of the land claimed by him. It also dismissed the counterclaim of respondents on the same ground that they did not also prove the boundaries of the land claimed by them in line with their pleadings, but added this time that respondents did not also prove the person who first founded the land.

While the respondents seem contented with the dismissal of their counterclaim, appellant is dissatisfied with the

dismissal of his claim and has lodged the instant appeal against it to this Court. From four grounds of appeal he filed against it, he framed for our determination the following two issues which were also adopted by the respondents:
1. Whether having regards to the evidence led and the pleadings, he proved a better title to be entitled to the judgment of the Court.
2. Whether the judgment of the trial Court is a valid judgment given the style and approach adopted by the trial judge.

Starting with issue 1, appellant through his counsel Mr. Patrick Owoicho first referred us to page 221 of the records where the trial judge in his judgment said he was “not impressed with the quality of evidence adduced in support of the plaintiff’s case as the P.W.1 – P.W.4 gave evidence which were not pleaded in paragraphs 3 and 5 of the claim in respect of the boundaries of the land and also that they built a hut for the defendant and he settled in 1st defendant’s house. I therefore find that the evidence of PW1-PW4 was not pleaded in respect of the land and also the issue of the defendant staying in the house of PW1 for 42 days and there was a

communal effort that built a house for the defendant.” Mr. Owoicho submitted that these ‘evidence’ and reasons referenced by the lower Court – that appellant alleged he or members of his family built a hut for respondents or that respondents stayed in his house for 42 days or even that a communal effort was used to built a hut for respondents or any of them – is not supported by the pleadings or even the evidence of the witnesses that testified in the case.

Counsel also argued that the lower Court in its judgment at page 224 of the records occasioned another miscarriage of justice when it held that appellant and three of his witnesses under cross-examination gave evidence as to the size of the land and its description that contradicted what they deposed in examination in chief so such evidence went to no issue. Counsel argued that this issue is not tenable because land disputes like other civil cases are settled on the issues joined by parties in their pleadings; that where parties are in agreement on an issue in their pleadings, there is no burden of proof requiring presentation of evidence to prove it. Counsel submitted that it

is in the statement of defence that the issues of boundary, identity and size of disputed land are made issues to require plaintiff to prove them otherwise the defendant would be taken to have agreed with the boundaries, size and identity of the land pleaded by the plaintiff and plaintiff would be relieved the duty of proving them. To support that, learned counsel cited Abdullahi v. Hedima (2011) 2 NWLR (PT 1230) 42 @ 45, Thomas v. FJSC (2019) 7 NWLR (PT. 1671) 284 @ 294. Learned counsel next referenced Okonkwo v. Okonkwo (2010) 42 NSCQR (PT 11) 1291 @ 1322 to say that where both parties are clear about the identity of a disputed land even the filing of a survey plan is unnecessary. Learned counsel then reproduced the pleadings of parties and submitted that they were similar in every respect except for the village of Gibak to the west of the land, which respondents called Giba as opposed to Gibak as appellant named it. He pointed out too that unlike appellant, respondents in their statement of claim and counterclaim were even more elaborate in their description of the land as they gave the size of the land and its distance by kilometers to identified boundary

feature and boundary neighbours so the lower Court was wrong in its conclusion. Learned counsel made the same submission regarding the lower Court’s conclusion that appellant was unable to prove the size of the land respondents were asked to vacate. Counsel submitted that from the pleadings of parties, size of land in dispute was not in issue. Counsel thus submitted that all three grounds on which the trial judge dismissed appellant’s claim were faulty and deserved to be interfered with.

On issue 2 regarding the approach of the lower Court in its judgment, Mr. Owoicho for appellant while conceding that judgment writing is more of an individual thing and every judgment is entitled to his style so a complaint predicated merely on style in writing judgment cannot justify the setting aside the judgment, submitted that the way the trial judge wrote his judgment here ‘completely obfuscates’ the case appellant presented before him thus making it impossible for the relative strength of parties cases to be weighed, thereby occasioning miscarriage of justice so it cannot be allowed to stand. He cited Ekasa v. Alscon Plc (2014) 16 NWLR

(PT. 1434) 542 @ 564 to say that a valid judgment should show appropriate description of parties; the consideration of the nature of the claim and cause of action; appreciation of the issues in controversy which must be also dealt with; proper reception and evaluation of the evidence and ascription of probative value to them, finding of facts supported by evidence and correct conclusion in fact and law and, in civil cases, construction of imaginary scale for weighing the accepted evidence on both sides for purpose of determining which side it tilts, and finally giving its verdict/decision/judgment an making of consequential orders where necessary. He said that that was not done by the trial judge in this case; that since there were claims and counter claims before the trial judge his duty was to first resolve the claim and in doing so consider it along with the defence of respondent and see whether appellant despite the defence of respondents proved his claim to be entitled to judgment; that it is after resolving that issue and the claim that the Court would proceed to the counterclaim and carry out the same exercise. The trial judge in this case, counsel

complained, simply took on appellant’s case and descended on it by highlighting what he considered were perceived weaknesses in it and dismissed it without making a single reference to the defence of respondents to it or placing it on the scales of justice alongside the case of appellant to see which one preponderated. The same procedure he said was also adopted by the Court in dismissing respondents’ counterclaim without making any reference to appellant’s defence to it. A miscarriage of justice was therefore done, according to counsel, as the lower Court did not resolve all the issues in controversy between parties or make findings on them. Those issues so left not unresolved by the trial judge, he submitted, related to credibility of witnesses called by both parties so it would be difficult, if not even impossible, for this Court as an appellate Court to look at the cases of both sides and determine who proved better title so the appropriate order is one setting aside the judgment of the lower Court and order for retrial.

In finally summing up his entire arguments for appellant, however, Mr. Owoicho rather submitted, somehow

contradictorily, that appellant actually proved his claim with consistent evidence on the crucial issues of the history of the founding of the disputed land and how it devolved on him and that his witnesses also gave evidence along the same line, so we should allow the appeal and set aside the judgment of the lower Court dismissing appellant’s claim and enter judgment for appellant in terms of his claim but affirm the same judgment as it relates to the dismissal of the counterclaim of respondents, they, according to counsel, having not proved their counterclaim as found by the lower Court. Learned counsel was however again quick to add that, in the alternative, if we find that the judgment of the lower Court was nullity for the inherent defects he pointed out in it, we may order a retrial as earlier suggested by him. Learned thereafter went into another lengthy argument trying to justify the trial judge’s dismissal of respondent’s counterclaim, even as respondents have not appealed against that finding. I do not intend to waste my time and energy on that sparring session (if I may resort to boxing terms) of appellant. The Court only deals

with live issues between litigants and not ‘issues’ that are not contested by the other party as in this one of the correctness of the judgment of the lower Court dismissing respondent’s counterclaim.

For respondents, Mr. I.S. Salman replied that appellant who bore the onus of adducing evidence to prove his ownership of the disputed land failed to do that so the judgment of the lower Court dismissing his claim was properly made. Relying on Addah v. Ubandawaki (2015) LPELR-24266 (SC), learned counsel submitted that the law requires a claimant for declaration of title to land to first prove with certainty the identity of the land he is claiming but appellant did not do that in this case. He said to give judgment to appellant on the evidence he adduced would have amounted to granting him judgment over a vague piece of land, something he said the Court cannot do.

On the approach of the lower Court and whether its judgment was a valid one, Mr. Salman while agreeing with appellant that judgment writing is an art and each judge is entitled to his style, disagreed with appellant’s contention that the judgment of the lower Court

fell short of the requirements in Ekasa v. Alscon Plc and so occasioned a miscarriage. Learned counsel cited Awopejo v. State (2001) 18 NWLR (PT. 745) 430 @ 442 to submit that the mere fact that a Court first evaluated the evidence of the prosecution before adverting to that of the defence is not evidence of wrong evaluation and finally submitted that given the contradictions in appellant’s case regarding the identity of the land in dispute, it was correctly dismissed by the lower Court so we should also resolve this issue against him.

Resolution of issues
As is evident from the judgment of the lower Court, the main reason for its dismissal of appellant’s claim was that he did not prove, or gave contradictory evidence of the boundaries and size of the disputed land. The other ground for its decision dismissing appellant’s claim is where it said:
“Having carefully examined the plethora of evidence adduced with regard to the formulated issue, I will say that I am not impressed with the quality of evidence adduced in support of the plaintiff’s case as the P.W.1 – P.W.4 gave evidence which were not pleaded in

paragraphs 3 and 5 of the claim in respect of the boundaries of the land and also that they built a hut for the defendant and he settled in 1st defendant’s house. I therefore find that the evidence of PW1-PW4 was not pleaded in respect of the land and also the issue of the defendant staying in the house of PW1 for 42 days and there was a communal effort that built a house for the defendant.”

Starting first with this latter finding, I must say that I also combed the records of the lower Court as carefully as possible but failed to find the said assertion by appellant which the trial judge relied so much on as an alternative ground for dismissing appellant’s case. In fact it is even a mystery where the trial judge got the P.W.4 he repeatedly referenced there, for the records show that only three witnesses – Mallam Hassan Maihula (PW1), Jubrin Jauro (PW2) and appellant himself as P.W.3 – testified on behalf of plaintiff/appellant. Merriam Webster’s online Dictionary defines a perverse decision of a Court as one which among others is contrary to the evidence before the Court. A decision based on ‘evidence’ from witness or

witnesses who never testified before the Court is certainly a perverse one that cannot be allowed to stand.

It does not also appear to me that the learned trial judge fared better even on the issue of the identity of the land in dispute, which he devoted a lot of time on in his judgment and found against appellant that he did not establish so his case deserved an order of dismissal. Yes, it is well settled law that the first duty of any person claiming declaration of title to land or its modern equivalent of right of occupancy or even just injunction to land is to show clearly the area or identity of the land to which his claim relates and upon which the Court’s order of declaration or injunction will run: see Efetiroroje v. Okpalefe ll (1991) 5 NWLR (PT 193) 513 @ 533, Babatola v. Aladejana (2001) FWLR (PT 61) 1670 @ 1682; Dada v. Dosunmu (2006) 1 NWLR (PT 1010) 134 @ 156; Awote & Ors v. Owodunni & Anor. (1987) 1 NWLR (PT 87) 366, (1987) LPELR-659 (SC) p.6. If such a claimant fails in that duty, the Court will not even bother going to other issues like whether he proved his ownership, for ownership can only be meaningful if it relates and

is tied to an identified area of land: see Awote & Ors v. Owodunni & Anor supra. On that basis, therefore, the trial Court was on firm ground in making heavy weather of whether appellant really proved the identity of the land he claimed in his action. The main issue, however, is whether the trial judge was right in his conclusion.

land is clear, it will not be open to the defendant to raise issue of identity of disputed land: see Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360 @ 374 – 376; Osho v. Ape (1998) 8 NWLR (PT 562) 492 @ 506 – 507; Oshodi v. Eyifunmi (2000) 1 SCNJ 295 @ 325; Motanya v. Elinwa (1994) 7 NWLR (PT 356) 252 @ 361; Ayuya & Ors v. Yonrin & Ors (2011) 5 SCM 16 @ 38; Tanko v. Echendu (2010) 2 S.C. (PT 1) 33, 60, 63-65, 67.
Furthermore, even though a plaintiff’s description of the land is vague but the defendant counterclaims and in his counterclaim clearly identifies the land in dispute, a declaration which will otherwise not be granted can be granted on that basis: Okedare v. Adebara (1994) 6 NWLR (PT 349) 157. The same principle applies where the defendant clearly identifies a disputed land in his statement of defence: Anyanwu v. Uzowuaka (2009) ALL FWLR (PT 499) 41.

So, was identity of the disputed land in issue from the pleadings and the evidence before the Court? It does not at all appear to me that the records support the lower Court’s decision that parties to this case did not know the identity or area of the land in dispute

so there was need for appellant to prove it and he failed in that regard. In the first place, contrary to the reasoning of the lower Court and respondents, appellant made it very clear in his amended statement of claim that even though the ‘nearby small settlement’ of respondents called Badakoshi, which land according to him is a kilometer away from his Wuro Ladde village, was also given to respondents ancestors by his ancestors (see paragraph 9 of his amended statement of claim), the area of land claimed by him in this suit is just a farmland at the outskirts of his Wuroladde village and not the Badakoshi village homestead of respondents. That is even as he also maintains that the said farmland was also given by his family to respondents’ ancestors albeit only on loan or customary tenancy with condition of payment of tributes by respondents to his people and swapping of the land at his people’s discretion whenever the land became weak from cultivation. The said farmland in dispute, he further added, is where his grandparents were also buried with the sole aim of discouraging claims of its ownership by respondents as they are making now

(see paragraphs 11,15, 16, 17, 18, 19, 20 and 21). He even described the boundaries of the said disputed farmland at the ‘outskirts’ of his Wuro Ladde village (as opposed to respondents’ homestead a kilometer away), saying at paragraph 16 of his amended statement of claim that:
16. The land in dispute is a large farmland bounded by Gibak by the west, bounded by the town of Wuro Ladde by the east (as the land in dispute at the outskirt of Wuro Ladde), bounded by the river by the south, and finally by the north is bounded by Yola Nura and katbala.
What was respondents’ response to this assertion? It was rather tongue-in-cheek. They had this to say in paragraph 14 of their statement of defence:
14. The defendants jointly and severally in answer to paragraph 16 of the Plaintiff’s statement of claim state that the description of the land in the said paragraph 16 is not true; it relates to the land referred to as “Bada Koshi” and if meant (sic) to the land in dispute, it has the following boundaries contrary to the one mentioned an described by the plaintiff thus:
a. From the North it shares boundary with

a village called by Yola Nura covering a distance of approximately 3 kilometer.
b. From the South – it shares boundary with a river.
c. From the West – it shares boundary with a village called Giba covering a distance of at least 2 kilometer.
d. From the East it borders with a village called Wuro Ladde covering a distance of at least 11/2 kilometer.

These boundaries as described by respondents do not differ significantly from that given by appellant as earlier reproduced. If anything, they, I agree with Mr. Owoicho for appellant, rather made the description of the land in dispute even more precise by giving its distance by kilometers to its boundary features and neighbours. Those descriptions were further adopted by respondents in their counterclaim to the same land. I have already said that even where a plaintiff’s description of the land in dispute is not very clear (which is not even the case with that of appellant), a declaration which would have been denied on that ground could be granted if the defendant in his statement of defence, or counterclaim, if there is one, describes the disputed land clearly, as respondents

did: see again Okedare v. Adebara (1994) 6 NWLR (PT 349) 157, Anyanwu v. Uzowuaka (2009) ALL FWLR (PT 499) 41.

Undoubtedly, appellant and respondents were in agreement on the location and identity of the farmland claimed by appellant which, as shown already, is not the Badakoshi homestead of respondents further away.

The fact that parties knew the disputed farmland and were in agreement on its location was further brought out by the answers given by both appellant and respondents’ witnesses under cross-examination. Starting with appellant, this is what his first witness and kinsman Mallam Hassan Maihula (PW1) said about the land under cross-examination:
“I am 68 years old and I know the land in dispute. …. The land in dispute is close to 50 hectares and is as big as football field and is situate at Wuro Ladde.”

After asserting that it was he who gave the return of the land the previous year (2015), this same witness in line with the amended statement of claim of appellant restated in re-examination thus at p.72 of the records:
“The defendants are staying in Badakoshi and the land in dispute is in Wuroladde.”

P.W2 and 3 repeated virtually the same things in their cross-examination. Yes, appellant and his witnesses may have prevaricated a bit on the exact size of the land in dispute, but that is not unexpected given that none of them claimed to have measured, let alone engaged an expert by way of a surveyor to measure, the said land in dispute to know its exact size. In fact, if they had given exact size of the said farmland that they did not claim to have measured I would have even found it difficult to believe them.

Respondents were also very clear in their evidence that they knew the disputed farmland at the outskirts of appellant’s Wuro llade village claimed by appellant. Hear, for instance, 1st defendant/Respondent, Mr. Rabiu Dino Kwari, under cross-examination as D.W.1:
“I am 30 years old and my village is Badakoshi. I know the land in dispute. I know the land in Wuroladde but we are working in both but was not loaned to us. … the land is bounded by the North by Katbala, by the east by Wuroladde, by the West by a people of Gibar, and by the South is bounded by the river. Wuroladde and Badakoshi are

not far from each other. The land in Badakoshi does not belong to the plaintiff.”

Under re-examination, this same witness was unshaken and reconfirmed that he was very much aware that their Badakoshi settlement is a different piece of land from the farmland claimed by appellant when he answered that:
It is both lands that are in dispute.
His brother, 2nd respondent, also admitted he knew the land in dispute. He also gave its boundaries as given by DW1. In fact he was even clearer on that when he said:
“I know the disputed land at Wuroladde.”
And after giving its boundaries, etc., he continued:
“There is nothing on the land [not even homesteads] apart from locust beans trees. There is no land in dispute in Badakoshi. The land in dispute is situate between Badakoshi and katbala.”
Third respondent, Wambai Wambai, also confirmed knowledge of the disputed land and its boundaries when cross-examined, saying:
“I know the land in Wuroladde. The land is bounded by .. (same description as DW1 and DW2……….). I know the land in Badakoshi. The founders of the land are Kwari,

his junior brother and Wambai, and they are the same with the land in Wuroladde.”

In the face of these pieces of evidence how can it be seriously asserted by the lower Court, now supported by the same respondents through their counsel, that identity and boundaries of the farmland claimed by appellant was after all uncertain and unknown to respondents so appellant had a burden to prove it and his inability to prove its exact size, possibly in square metres as a surveyor would do after measuring it, is a defect in his case and so deserving of an order dismissing it? That is another perverse decision which deserves the intervention of this Court. In Udengwu v. Uzuegbu & Ors (2003) 13 NWLR (PT 836) 136; (2003) LPELR-3293 (SC) p.13-14 it was said (Uwaifo, J.S.C.) that:
“A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence; or that it misconceived the thrust of the case presented; or took into account irrelevant matters which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case;

or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all this, a miscarriage of justice, and the decision must be set aside on appeal: see Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360; Adimora v. Ajufo (1988) 3 NWLR (PT 80) 1; Agbomeji v. Bakare (1998) 9 NWLR (PT 564)1; Odiba v. Azege (1998) 7 NWLR (PT 566) 370.”
The only remaining point, in my opinion, is the appropriate consequential order to be made. As hinted earlier, that order, in the circumstances of this case, is one for retrial and not one entering judgment for the appellant as suggested by their counsel in the alternative. In the first place, besides the flaws already pointed out in the case, it is admitted by even appellant that respondents are the ones in occupation of the disputed farmland. That automatically brings into operation the presumption, albeit only a rebuttable one, of Section 143 of the Evidence Act that they, respondents, are its owners. See also Ajeigbe v. Odedina & Ors (1988) 1 NSCC 427 @ 435, (1988) 1 NWLR (PT 72) 584 @ 595; Oduola v. Coker (1981) 5 S.C 197; Onyekaonwu & Ors v. Ekwubiri (1966) 1 ALL N.L.R. 32 @ 35;

Onobruchere v. Esegine (1986) 1 NWLR (PT 19) 799 and Okoye v. V. Nwankwo (2014) ALL FWLR (PT 756) 471 @ 595 – 500 (S.C.). That is just as it is also settled law that possession is 9/10th of the law and ownership. The burden is therefore on appellant to rebut that presumption by showing that the said farmland in dispute is his nevertheless. He tried to do that with his evidence, corroborated by that of his brother, P.W.1. (Mallam Hassan Maihula), that respondents as his family’s customary tenants gave ‘return’ of the land to his people through P.W.1 even as recently as 2015 (see pages 75 -76 of the records). That evidence, if true and accepted, is capable of rebutting the presumption. The trial judge, however, did not make any finding on it, even as respondents vehemently denied being tenants or ever making any return to appellant and his people and rather asserted their own ownership. Those opposing assertions and denials being purely oral and having to do with credibility of the witnesses from which they proceeded, it is only a person, in this case the trial judge, who watched witnesses testify to them that can decide who was saying the

truth. An appellate Court like ours which only deals with cold records is not in a position to do it. That, in addition to the grave error highlighted earlier of the trial judge deciding the case partly on evidence and witnesses that were not before him, makes a retrial order inevitable.
For each and all of the foregoing reasons, I hereby allow this appeal and set aside the 19th December, 2019 judgment of the High Court of Bauchi State given by A.M. Liman, J., in Suit No. BA/9/2016 between Mallam Abubakar Idris v. Rabiu Dino & 2 Ors dismissing appellant’s claim and in its stead send the said case back to the High Court of Bauchi State for retrial on its merits by another judge of that Court to be assigned by the Chief Judge of Bauchi State.
Cost of this appeal is assessed at ₦50,000.00 (Fifty Thousand Naira) in favour of appellant.

TANI YUSUF HASSAN, J.C.A.: I read in draft the lead judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA. I agree with the reasoning and the conclusion reached in the lead judgment.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading in draft before now the judgment just delivered

by my learned brother BOLOUKUROMO MOSES UGO, JCA.
I agree with the reasoning and conclusion reached thereat and I also allow the appeal.
I abide by the consequential order made therein including the order for cost.

Appearances:

Eric Goler, Esq., (holding the brief of Patrick Owoicho, Esq.) For Appellant(s)

S. Salman, Esq., with him, O. A. Matthew Esq. For Respondent(s)