SABO v. DAMURAP
(2020)LCN/15249(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, May 21, 2020
CA/J/215/2018
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
AUDU SABO APPELANT(S)
And
BITRUS DAMURAP RESPONDENT(S)
RATIO
WAYS OF PROVING TITLE OF OWNERSHIP TO A LAND IN DISPUTE
It is settled that a plaintiff who claims a declaration of title of ownership to the land in dispute must prove his title to the land in dispute by one of the five ways listed in the case of Idundun Vs. Okumagba (1976) 10 SC 227 thus:
1. By traditional evidence
2. By production of document of title
3. By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner
4. Long possession
5. By proof of possession of connected or adjacent land would be the true owner of the land. PER HASSAN, J.C.A.
WHETHER OR NOT A DECLARATORY RELIEF IS GRANTED ON A STRONG AND COGENT CASE
The declaratory relief is not granted as a matter of course, but on very strong and cogent case. It follows therefore that the plaintiff must succeed on the strength of his case alone and not by virtue of the weakness of the defendant’s case. See Omisore Vs. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Akinbade Vs. Babatunde (2018) 7 NWLR (Pt. 1618) 366 and Egbunike Vs. Muonweokwu (1962)1 SCNLR 97. PER HASSAN, J.C.A.
WHETHER OR NOT WHERE TRADITIONAL HISTORY SUCCEEDS, THERE WILL BE NO OTHER EVIDENCE OF POSSESSION REQUIRED
Where the traditional history succeeds, there is no other evidence of possession required. See Alade Vs. Awo (1975)4 SC 215 and Balogun Vs. Akanji (1988)1 NWLR (Pt. 70) 301. In Makinde Vs. Ajidike (1996) NWLR (Pt. 239), the Supreme Court held that where title is based on traditional history and was found to be conclusive, there was no need to require further proof. PER HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of Plateau State Customary Court of Appeal, Jos delivered on the 7th of December, 2015 in Suit No: CCA/36A/2012.
The subject matter of this appeal is a farm land. The respondent as plaintiff in the Upper Area Court, Mangu claimed against defendant as appellant therein ownership of the land situate at Ampang West District of Mangu Local Government Area of Plateau State. The claim went into trial and at the end of trial the Court gave judgment in favour of the respondent. Dissatisfied with the judgment, the appellant appealed to the Customary Court of Appeal Jos who in turn affirmed the decision of the Upper Area Court and dismissed the appeal filed by the appellant.
Still dissatisfied with the decision of the Customary Court of Appeal, the appellant by a further Amended Notice of Appeal dated 21st December, 2018 and filed on 15th March, 2019 but deemed filed on 11th of April, 2019 appealed to this Court on two grounds of appeal with their particulars.
The appellant’s brief settled by Polycarp Nimyel Esq. dated and filed on the 24th of May, 2019 has two issues distilled for determination as follows:
(a) Whether the lower Court erred in law in giving judgment in favour of the Plaintiff/Respondent in land case based on traditional history, when indeed the traditional history of the Plaintiff/Respondent is weaker than that of the defendant/appellant.
(b) Whether if the traditional history preferred by the lower Court ought to have resorted to acts of ownership and long procession to determine which of the traditional histories of the parties is more probable.
Learned counsel for the appellant adopted the brief and urged us to allow the appeal.
The respondent’s brief dated 24th day of June, 2019 was filed on the 26th of June, 2019. The brief settled by A.A. Madaki Esq. has two issues identified for determination.
(a) Whether the lower Appellate Court was right to uphold the findings of fact by the trial Court on the plaintiff/respondent’s traditional evidence as his root of title to the disputed land.
(b) Whether having failed to convince the trial Court and the Lower Appellate Court of his traditional evidence, as root of his title, the Court had a duty to consider his evidence of long possession.
It is observed neither the appellant nor the respondent indicated the grounds covered by the issues they formulated. It is highly desirable that counsel should indicate, in his brief of argument the ground or grounds of appeal tied to the issues for determination. This is because it assists the appellate Court in relating arguments on the issues to the appropriate grounds of appeal. However a calm examination of the two grounds of appeal reveals their relationship with the two issues formulated by counsel to both parties.
The two issues formulated by both parties are similar but couched differently. I shall be guided by the appellant’s issues in determining this appeal. The two issues will be taken together.
ISSUE ONE
“Whether the lower Court erred in law in giving judgment in favour of the Plaintiff/Respondent in land case based on traditional history, when indeed the traditional history of the Plaintiff/Respondent is weaker than that of the Defendant/Appellant.”
ISSUE TWO
“Whether if the traditional history preferred by the lower Court ought to have resorted to acts of ownership and long procession to determine which of the traditional history of the parties is more probable.”
Arguing the appeal on both issues learned counsel for the appellant submits that both sides claim entitlement to the land in dispute on traditional history, but that both the traditional evidence of the plaintiff/respondent and that of the Defendant/Appellant were not in accordance with the decision in Ezinwa Vs. Agu (2004) 3 NWLR (Pt. 861) 431 at 449 and Anyafulu Vs. Meka (2014)2 SCNJ 251 at 275. He referred to the evidence of PW3, DW8 and DW9 to submit that the plaintiff/respondent who relied on the traditional history in the testimony of PW3, has failed to adequately and sufficiently adduce evidence to prove the founder of the land, how the land was founded and the history of the devolution of the land from the founder of the land to him, the plaintiff. He contends that the defendant/appellant, from the combined testimonies of DW8 and DW9, he had stated the founder of the land which devolved to the descendants down to the defendant/appellant.
It is also the submission of the appellant’s counsel that what is lacking in the evidence of the defendant/appellant and plaintiff/respondent is that both of them did not give evidence on how the land was founded.
He submits that failure of the plaintiff/respondent to discharge the burden of proof on him, he cannot rely on the weakness of the defence and his claim therefore ought to have been dismissed.
He referred to Matanmi Vs. Dada (2013) 2 SCNJ 616 at 631.
It is the contention of the appellant’s counsel that the trial Court stripped the appellant of victory when it imported evidence that was not stated by DW9. That the decision of the lower Court is perverse and we are urged to set it aside with regard to the traditional history proffered by the parties which is inconclusive, counsel argued that if the lower Court was interested in doing justice, it ought to have resorted to acts of ownership and long possession to determine which of the traditional history of the parties was more probable.
Counsel submits that the appellant has shown how the founder of the land in dispute founded the land and first cleared it and narrated the chain of devolution of the land from the founder to himself.
He referred to the evidence of DW1 and DW7 to submit that the appellant hired the respondent to cultivate the land for him at seven pounds (£7) which he paid the respondent. It is argued that the respondent did not rebut this evidence of the appellant and did not give evidence as to how he came about the possession of the land. The case of Matanmi Vs. Dada (supra) at 632 was referred to.
That the evidence of DW6 is to the effect that it was the appellant that had been farming on the land and that the appellant’s acts of long and undisturbed possession of the land in dispute clearly suggests that he is the owner of the land. Counsel also referred to the evidence of DW2 and DW3 who shared boundary with the appellant that they testified, they never saw the respondent farming on the land in dispute. It is finally submitted that the appellant having shown to be in active possession and ownership of the land, the Court is urged to resolve in favour of the appellant.
Responding, learned counsel for the respondent, relying on the case of Prince Ngene Vs. Chike Igbo (2000) 2 SCNJ 136 at 149 submits that in a claim for declaration of title to land, the onus is on the plaintiff to prove his case. That the respondent who was the plaintiff at the trial Court traced his root of the disputed land by evidence of traditional history. He referred to the evidence of PW3 (respondent) at page 28 lines 13-15 of the record who testified as to how the land devolved to him. Counsel referred to Christian Ewo Vs. Agbodo Ani (2004) SCNJ 237 at 281 and Addah Vs. Ubandawaki (2015) 6 NSCQR (Pt. 2) 1198 at 1231-1232 on proof of title to land by evidence of traditional history. Counsel submits that on the strength of the foregoing Supreme Court decisions, the respondent had successfully proved his root of title to the disputed land by traditional history and the Plateau State Customary Court of Appeal rightly found for the respondent that there was no gap and nothing was left hanging in the respondent’s history.
Learned counsel for the respondent contends that the evidence of DW8 and DW9 relied upon by the appellant in proof of his title by traditional evidence is vague, ambiguous and inconsistency and the ambiguity and inconsistencies are so fundamental that no Court could safely rely on such evidence to declare judgment in favour of the appellant.
That the appellant’s witness led two versions of inheritance of the land by the appellant which the lower Appellate Court found as irreconcilable and held that the Court cannot pick and choose, as it cannot prefer one version to the other and therefore must reject both.
With regard to the evidence of the parties on traditional history which is inconclusive which the appellant’s counsel argued that the Court can resort to act of possession, the respondent’s counsel relying on Kojo Vs. Bonsie (1957)1 NLR 1223 and Idundun Vs. Okumagba (1976) 1 – 10 SC, submits that act of possession is also one of the five ways of proving title to land but where the traditional history by one party satisfied the requirement of the law, the other party’s acts of possession is needless. That the appellate Court having found the traditional history of the respondent as indeed founded by the trial Court, the principle in Kojo Vs. Bonsie (supra) is inapplicable in this case. The Court was referred to Alade Vs. Awo (1975) 4 SC 125 and Balogun Vs. Akanji (1988) NWLR (Pt. 70) 301 at 339.
The Court is urged to resolve in favour of the respondent.
The case of the appellant as contested is that he is the owner of the land in dispute which he claimed to be entitled to, as against the respondent. The contention of the appellant is that, since the traditional history proffered by both parties is inconclusive, the lower Court ought to have resorted to acts of possession to determine between the parties.
It appears to me that the real issue the appeal raises centres squarely on the role of the trial Court in the evaluation of evidence it had undertaken and the upholding of same and affirming the decision of the trial Court by the lower Court. Both the appellant and the respondent as defendant and plaintiff respectively claimed entitlement to the declaration of the Court as being the rightful owners of the land in dispute.
It is settled that a plaintiff who claims a declaration of title of ownership to the land in dispute must prove his title to the land in dispute by one of the five ways listed in the case of Idundun Vs. Okumagba (1976) 10 SC 227 thus:
1. By traditional evidence
2. By production of document of title
3. By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner
4. Long possession
5. By proof of possession of connected or adjacent land would be the true owner of the land.
The declaratory relief is not granted as a matter of course, but on very strong and cogent case. It follows therefore that the plaintiff must succeed on the strength of his case alone and not by virtue of the weakness of the defendant’s case. See Omisore Vs. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Akinbade Vs. Babatunde (2018) 7 NWLR (Pt. 1618) 366 and Egbunike Vs. Muonweokwu (1962)1 SCNLR 97.
The main issue in this appeal concerns the complaint that the trial Court erroneously gave judgment for the respondent and affirmed by the lower Court, when he failed to prove his root of title by traditional history.
The respondent testified as PW3. He gave evidence that the land in dispute was being farmed by the original plaintiff in the case, Kyakyes Damurap who was his elder brother. That the said Kyakyes got the land from their father Damurap, Damurap got the land from Sihitkyes, Sihitkyes inherited from Dachar, Dachar got it from Lur and it was Lur who cleared the land. That Kyakyes Damurap had been farming on the land without being challenged by anybody. He shared boundary with the land in dispute by the west, Luka Wetkur by the North, Hassan Dawap by the South and Jonah Guyahout by the East. He confirmed the facts under cross- examination.
DW8 was the initial defendant in the case. His evidence is to the effect that he inherited the land in dispute from his father Kyakduhur, his father inherited from Yilrope his father, Yilrope inherited from Datuhun who also inherited from Dakong and Dakong got the land from his father. Under cross- examination he said he cannot show any evidence of the ruins of his grandparents on the land in dispute.
The evidence of DW9 is that the land in dispute was inherited by the original appellant from his father Tiyakduhur, Tiyakduhur inherited from his father Yilrope, Yilrope inherited it from Mutuhun, Mutuhun inherited it from Dakong, Dakong inherited it from his father Yilkyes and that it was Dakong and Yilkyes that first cleared the land.
From the foregoing evidence of the parties as shown on the record DW9 is saying that Yilkyes and Dakong were the two founders of the land in dispute. He also said Dakong inherited the land from his father Yilkyes. It follows therefore, if as he said that Yilkyes and Dakong were co-founder the land in dispute, then the question of devolution on the appellant would not avail him. DW8 in his evidence could not even say who founded the land. There is certainly a gap in the traditional history proffered by the appellant coupled with the contradiction in the evidence of DW9. I agree with the lower Court in reviewing the trial Court’s findings adjudged at page 238 of the record.
“In consequence, the defence traditional history is bereft of who the founder of the land in dispute was. The trial Court was therefore right in accepting the traditional history of the plaintiff, replete with the three elements constituting an efficacious traditional history.”
There is no doubt the traditional history of the respondent is in compliance with the requirements of the law. In other words the respondent has satisfied the requirements of the law in proving his entitlement to the land in dispute.
Therefore the contention of the appellant that the Court ought to have resorted to possession with regard to inconclusive traditional history does not arise in this case. Both the trial Court and the lower Appellate Court and this Court are satisfied with the traditional history given by the respondent.
The case of kojo Vs. Bonsie (supra) relied by the appellant is inapplicable in this case having found the traditional history of respondent satisfactory. Where the traditional history succeeds, there is no other evidence of possession required. See Alade Vs. Awo (1975)4 SC 215 and Balogun Vs. Akanji (1988)1 NWLR (Pt. 70) 301. In Makinde Vs. Ajidike (1996) NWLR (Pt. 239), the Supreme Court held that where title is based on traditional history and was found to be conclusive, there was no need to require further proof. In the instant case since the respondent’s traditional history is conclusive, there is no need to resort to possession as contemplated by the appellant.
In conclusion, we affirm the decision of the lower Court and dismiss the appeal for lacking in merit. N50,000.00 costs for the respondent against the appellant.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother JUSTICE TANI YUSUF HASSAN, JCA.
I am at one with the reasoning and conclusion arrived thereat that the appeal is meritless and ought to be dismissed.
The appeal is also dismissed by me and I abide by the consequential orders thereat including the order on cost against the Appellant.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A., and I am in agreement with him that the appeal lacks merit; accordingly, I also dismiss it with costs as ordered by my learned brother.
Appearances:
POLYCARP NINMOL For Appellant(s)
A.A. MADAKI For Respondent(s)
