KACHIRO v. ZAKWOI (2022)

KACHIRO v. ZAKWOI

(2022)LCN/16971CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, May 27, 2022

CA/MK/189/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

ADO KACHIRO (SARKIN ADO KASA) APPELANT(S)

And

SAMUEL ZAKWOI RESPONDENT(S)

RATIO

DEFINITION OF CORROBORATING EVIDENCE

The Law Dictionary went further to define corroborating evidence as “Evidence supplementary to that already given and tending to strengthen or confirm it…..”
Indeed, from the pleadings and evidence led in respect of the defendant’s case, there does not seem to be the needed corroborative evidence or confirmation of facts or evidence, to strengthen and/or add credibility to the DW1’s case. The witnesses only gave evidence to the effect that they saw the defendant farming on the land in dispute. They led no evidence as to how the land was founded and who founded it. PER JOMBO-OFO, J.C.A.

FACTS THAT MUST BE PLEADED WHEN A PERSON CLAIMS FOR DECLARATION OF TITLE TO LAND FOUNDED ON TRADITIONAL HISTORY

In a situation such as in the instant case, when a person claims for declaration of title to land founded on traditional history, he must plead and establish facts such as:
a. Who founded the land;
b. How the land was founded;
c. Particulars of the intervening owners through whom the claimant claims;
d. Sequence of evolvement of the land from the ancestors to the claimant.
See also Nwokidu vs. Okanu (2010) 26 WRN. Pg. 36 ratio 12; and Irawo vs. Adedokun (2005) 1 NWLR Pt. 906, pg. 1199.
Furthermore, in the case of Ezukwu vs. Ukachukwu (2000) 1 NWLR (Pt. 642) 657 @ p. 679 it was reiterated inter alia thus:
A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title must be, firstly established before the exercise of the rights of ownership may be exercisable.
The defendant having failed to establish his root of title over the land in dispute, the learned trial Judge was on the right path in his evaluation and ascription of probative value to hold that the defendant’s evidence concerning the deforestation of the land in dispute cannot be believed because of lack of supportive evidence from other defence witnesses. Having failed to prove his root of title, the defendant cannot indeed turn around to rely on acts of ownership and/or possession. The learned trial Judge aptly evaluated the traditional evidence of the appellant and his witnesses and thus reached the proper conclusion that the said appellant failed to establish his entitlement to the disputed land. See the cases of Omotayo vs. Co-op. Supply Association (2010) 52 WRN, pg. 1 at 15, ratio 7; and Oyedeji vs. Akinyele (2001) 29 WRN, pg. 69 at 73, ratio 7, where the apex Court held that: Where no evaluation or proper evaluation was made at all by the trial Court, an appellate Court can interfere with the findings of the lower Court. PER JOMBO-OFO, J.C.A.

THE POSITION OF LAW WHERE THERE ARE GAPS IN TRADITIONAL HISTORY IN RELATION TO PROOF OF TITLE TO LAND

As aptly explained above by the learned trial Judge, gap has to do with time interval between one event and another. If perchance one or more of the time intervals is or are omitted and unaccounted for, then a gap or hole is created in the history of the event under focus. As in traditional history, gaps occur ordinarily where the genealogical trees pans over a long period of time. In the recent case of Mathias Mazang vs. Samaila Mashinkpen & Anor. (2018) LPELR-46144(CA), per Omoleye, JCA., on meaning and nature of traditional evidence held as follows: It should be noted straightaway that, the method of proof under discuss herein, that is, traditional history, has to do with the aggregate of past events passed down to living memory. In the circumstance, it is the narrative description and account beyond the living memory of the narrator, of who found and in what manner the land in dispute was found and the successive inheritors down to the claimants. In the case of: Dike vs. Obi Nzeka II (1986) 4 NWLR (Pt.34) p.144 the Supreme Court per Oputa, JSC (of blessed memory) at page 158, paras. F-G on the nature of traditional evidence pointedly held as follows: What then is traditional history or traditional evidence? When is such evidence relevant? Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of Section 44 of the Evidence Act, Cap 62 of 1958 Laws of the Federation of Nigeria. This Section provides: “S. 44: When the title to or interest in family or communal lands is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.
In most cases of such long lull, the human mind tends to forget the content and/or incidents which could have occurred in one or more of the past events. The learned trial Judge in the instant appeal further held that:…, there is only one generation or family tree which is still alive from the plaintiff’s side that deforested the land in dispute. The plaintiff who said he deforested the land along with others is still alive and the land has not evolved on anyone. The issue of gap creating (sic) cannot arise. (See page 340, lines 9–14 of the record of appeal). There is indeed no room for gap creation since the PW1 who is the founder was at all times material present and alive to tell the story of how he founded and funded the deforestation of the disputed land. See Eze vs. Atasie (supra). PER JOMBO-OFO, J.C.A.

WHETHER OR NOT WHERE WITNESSES CONTRADICT THEMSELVES ON MATERIAL ISSUES TO THE EXTENT THAT THEY CAST SERIOUS DOUBTS ON THE CASE PRESENTED AS A WHOLE BY THE PARTY ON WHOSE BEHALF THEY TESTIFY OR AS TO THEIR RELIABILITY, THEIR TESTIMONIES WILL BE ACTED UPON

Traditional history being a matter relating to time and descent in the past is replete with hearsay and mix-up of facts. The disparity as opposed to contradiction apparent in the evidence of the plaintiff/respondent on the one part and some of his witnesses, relating to the founding of the land in dispute is as trivial as it is irrelevant. In the case of Adu vs. Gbadamosi (2009) 19 WRN, pg. 178 at 180 R. 2, the apex Court enjoined the Courts as follows:
Where witnesses contradict themselves on material issues to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf they testify or as to their reliability, their testimonies cannot be acted upon.
Even in instances where witnesses called by a party contradict themselves, the apex Court has enjoined that unless the contradiction touch on material issue(s) to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf they testify, their testimonies are to be acted upon. PER JOMBO-OFO, J.C.A.

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, sitting in Mararaba – Gurku (hereafter the lower/trial Court) in suit No. NSD/MG123/2011, per Hon. Justice Haruna A. Offo, J., delivered 3rd November, 2016.

BRIEF BACKGROUND FACTS
The plaintiff at the lower Court who herein is the respondent took out a writ of summons against the defendant herein the appellant claiming as follows:
i. A Declaration that the land lying, behind and situate at Ado Kasa in Kodobe District, Kaur Local Government Area of Nasarawa State and measuring about 3 hectares belongs to the plaintiff and that he is the only person that is entitled to be issued/granted a Certificate/Right of Occupancy over same to the exclusion of any other person(s).
ii. A Declaration that the defendant’s entry into the land without the consent of the plaintiff amounts to trespass.
iii. An Order of Perpetual Injunction restraining the defendant either by himself, privies, assigns, representatives, heirs, executors, successors-in-title, agents, servants or any other person however described from further entry into, interference with, alienating, selling or otherwise dealing with the said land in anyway whatsoever.
iv. An Order setting aside any purported compulsory acquisition, sell, (sic) alienation or transfer of the said land or any portion of same by the defendant to any person(s).
v. The sum of One Million Naira (N1,000,000.00) as damages for trespass. (see pages 191–192 of the record of appeal).

In his defence/counter-claim, the defendant sought the following reliefs against the plaintiff:
1. A declaration that the defendant acting for himself and on behalf of the entire family members of the Kachiros is the rightful and customary owner of the disputed land lying at Ado Kasa in Kodope District of New Karu L.G.C. of Nasarawa State.
2. A declaration that the plaintiff’s claim over the disputed land is null and void and of no legal effect at all.
3. A declaration that the defendant rightfully donated a portion of the disputed land to the Secondary School at Ado Kasa.
4. An order of perpetual injunction restraining the plaintiff either by himself or privies, agents, successors-in-title or any other person who may claim through him from further encroaching or interfering in whatever manner with the disputed land.
5. N10 Million Naira (sic) only as general damages for all the emotional inconveniences the plaintiff’s act has subjected the defendant into.
6. N2 Million as fees for legal services rendered to the defendant by T. M. Dokong & Co. Law Office. (See pages 80–81 of the record of appeal).

Upon service of the statement of defence/counter-claim on the plaintiff, he filed a Reply to the statement of defence/counter-claim on 6th April, 2012. (See pages 128–131 of the record of appeal).

With the conclusion of filing and exchange of pleadings, the matter proceeded to trial with the plaintiff calling 4 (four) witnesses with him as the PW1. The respondent on his part called 5 (five) witnesses with him as the DW5.

After witnesses testified and closed their respective cases, the Court visited the locus in quo on 8th March, 2016 and learned counsel on both sides filed and exchanged their written addresses thereafter. In a considered judgment delivered 30th November, 2016, the learned trial Judge entered judgment in favour of the plaintiff and further dismissed the defendant’s counter-claim.

Disturbed by the judgment, the defendant (now the appellant) filed a Notice of Appeal at the lower Court on 6th December, 2016. The appellant subsequently filed an Amended Notice of Appeal on 28th November, 2018.

Parties in compliance with the rules and practice of this Court filed and exchanged briefs of argument. The appellant’s brief of argument which was filed 10th December, 2018 was settled by Eteya Ogana, Esq., while the appellant’s reply brief filed 17TH March, 2021 was settled by N. B. Nwaigwe-Oyeniyi, Esq. The respondent’s brief of argument which was filed out of time on 15th May, 2019, but deemed properly filed on 3rd March, 2021 was settled by Dr. D. G. Shigaba.

From the 5 (five) grounds of the Amended Notice of Appeal the appellant crafted the following 3 (three) issues for determination:
1. Whether the Hon. Trial Judge was not in error when he held that the Appellant’s traditional evidence was not corroborated by his witnesses and that the Appellant did not establish his root of title by traditional evidence. (Grounds 1 and 3 of the Amended Notice and Grounds of Appeal)
2. Whether the Hon. Trial Judge was not in error of law when he held that he ‘saw and felt’ no gap in the traditional evidence of the Respondents. (Ground 2 of the Amended Notice of Appeal).
3. Whether the trial Court properly evaluate (sic) and appraise (sic) the pieces of evidence of the parties before it. (Grounds 4 and 5 of the Amended Notice and Grounds of the Appeal).

The respondent adopted the issues as posited by the appellant.
ISSUE 1 (ONE)
Whether the Hon. Trial Judge was not in error when he held that the Appellant’s traditional evidence was not corroborated by his witnesses and that the Appellant did not establish his root of title by traditional evidence.
In arguing this issue, the learned counsel for the appellant submitted that the Hon. Trial Judge was in grave error when he held that the appellant’s traditional evidence was not corroborated by his witnesses. See pg. 24 lines 8–17 of the printed record; the case of Amadi vs. Amadi (2011) 15 NWLR pg. 437 at 442 R 6; and page 314, lines 12–23 and page 315, lines 1–5 of the printed record.

Relying on the case of Fatoki vs. Baruwa (2012) 14 NWLR pg. 1 at 9 R14, the learned counsel submitted that the law is firmly settled that corroborative evidence of a fact in issue is not usually required in civil proceedings. A mere ipse dixit is admissible in evidence.

The appellant’s counsel canvassed that while the trial Court is vested with discretionary powers in arriving at its decisions, an appellate Court can interfere with the discretion where it is shown that there has been a wrongful exercise of such discretion. See University of Lagos vs. Aigoro (1985) 1 NWLR Pt. 1, pg. 143; and C.P.C. vs. Ombugadu (2013) 55 NSCQR 570 at 642.Counsel for the appellant further referred to the finding of the lower Court to the effect that the appellant did not establish his root of title. It is their contention that the appellant gave a vivid account of how he came about the land in dispute. That appellant’s account in this respect was not sullied and as such the trial Judge had the duty to act on it. He urged on us to interfere in the finding of the lower Court as all the major strands necessary in establishing a root of title were present in the appellant’s evidence.

The respondent on the converse submits that the appellant twisted the holden of the learned trial Judge out of context, as the learned trial Judge never made use of the word ‘corroboration’. (See pages 23–24 of the record of appeal). Rather, the holden of the learned trial Judge was that none of the defendant’s witnesses lent support to his evidence regarding NSAYIBO deforesting the land in dispute. Respondent submitted that the defendant’s witnesses did not give evidence regarding defendant’s claim that he inherited the land in dispute and that they only saw the defendant farming on the land in dispute. Respondent contended that in view of the fact that the learned counsel for the appellant submitted that respondent’s evidence regarding his deforestation of the land was given credence to by his witnesses who helped him in deforesting same, it was therefore right for the learned trial Judge in his duty of evaluation of evidence and ascription of probative value to hold that the defendant’s evidence regarding the deforestation of the land in dispute cannot be believed because of lack of supportive evidence from other witnesses. The learned trial Judge’s holden was not based on lack of corroboration as envisaged by law but it was on lack of supportive evidence.

In their reply brief, the learned counsel for the appellant submitted that the learned trial Judge only used the word “corroboration” as a synonym for the words actually used by the learned trial Judge. See the Black’s Law Dictionary (2nd Edition) for definition of corroborative evidence. Appellant also submitted that the authority of Atolagbe vs. Shorun (supra) referred to by the respondent is rather in favour of the appellant, as the trial Judge shut his eyes to the obvious and failed to take into account what he ought to have taken into account. Counsel urged on us to discountenance the respondent’s submission and uphold the appellant’s appeal.

RESOLUTION OF ISSUE 1 (ONE)
The learned Judge’s findings that threw up the issue of corroboration or no corroboration read as follows:
Though in law, there is no particular number of witnesses needed to establish a claim, where a party calls witnesses in support of his claim, their evidence must support his claim. In the case before me, Defendant’s witnesses called did not speak with any voice near to his claim that he inherited the land by the deforestation of same by any of the defendant’s relation(s). Though the fact of deforestation by Nsayibo is mentioned under paragraph 2(d) of the defendant’s statement of defence, DW1, 2, 3 and 4 did not adduce evidence to this fact. Consequently, defendant’s root of title through traditional history must fail. This I hold. (See page 344 of the record of appeal).

This Court in the authority of Yahi Bello vs. Lalai Dzakwa (2019) LPELR-50351(CA), per Abiru, JCA., at Pp. 27-29, paras. F-B held as follows on whether the evidence of traditional history must be corroborated:
Additionally, an assessment of the evidence of the defence shows that only the second Appellant as the fourth defence witness gave credible evidence in support of the case of the Appellants on traditional history as contained on the pleadings. The evidence of the first Appellant as the third defence witness cannot be deemed credible in view of his admission under cross-examination that the information contained in his statement of oath which he adopted as his evidence in chief was supplied to their lawyer by the second Appellant and not by himself. The evidence of the second Appellant on the traditional history was not supported by the evidence of any of the other defence witnesses. Now, while it is correct that the law does not require a particular quantity of evidence or witnesses for proof of traditional history nor is it a requirement of the law, either in the Evidence Act or decided authorities, that evidence of traditional history must be corroborated. It is good law that in the area of evidence of traditional history it is desirable that a person other than the person asserting it should also testify in support thereof. This is only common sense because no one can claim an exclusive knowledge of a long standing tradition said to be prevailing in his area. Therefore, in order to be certain that the evidence of traditional history is correct, another witness should confirm it – Oyediran vs. Alebiosu II (1992) 6 NWLR (Pt 249) 530, Lambe vs. Jolayemi (2002) 13 NWLR (Pt 784) 343, Usiobaifo vs. Usiobaifo (2005) 3 NWLR (Pt 913) 665, Orlu vs. Gogo-Abite (2010) 8 NWLR (Pt. 196) 307.
It stands out in the foregoing that no number of witnesses is specified as necessary, yet in order to be certain that the evidence of the said traditional history is correct, another witness should confirm same.

The defendant/respondent’s case is that his grandfather Nsayibo deforested the land in dispute and that Nsayibo came from old Karu and called for communal work in deforesting the disputed land. (See paras. 2. (d) and (e) of defendant’s statement of defence and 6 and 7 of the DW1’s statement on oath at pages 41 and 49 respectively of the record of appeal).

Aside from the evidence of the defendant who testified as DW1 that his grandfather Nsayibo deforested the land in dispute, none of the witnesses called by him led a supportive or corroborative evidence of that sort. It was on this premise, that the learned trial Judge found reason to conclude thus:
In the case before me, the defendant’s witnesses called did not speak with any voice near to his claim that he inherited the land by deforestation of same by any of the defendant’s relation….

The Black’s Law Dictionary (6th Edition) in defining the word corroborate put it this way: “To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence. The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or established.”

The Law Dictionary went further to define corroborating evidence as “Evidence supplementary to that already given and tending to strengthen or confirm it…..”

Indeed, from the pleadings and evidence led in respect of the defendant’s case, there does not seem to be the needed corroborative evidence or confirmation of facts or evidence, to strengthen and/or add credibility to the DW1’s case. The witnesses only gave evidence to the effect that they saw the defendant farming on the land in dispute. They led no evidence as to how the land was founded and who founded it.

The learned trial Judge was obviously not in any error of law when he held that the appellant did not establish his root of title. This is because aside from the said appellant, none of the other 4 (four) witnesses called by him could confirm or corroborate the appellant’s claim that his grandfather Nsayibo deforested the land in dispute. The question whether the Hon. Trial Judge was not in error when he held that the Appellant’s traditional evidence was not corroborated by his witnesses and that the Appellant did not establish his root of title by traditional evidence is therefore answered in the negative. This is to say that the trial Judge was not in error in his finding in this regard. Issue 1 (one) is thus resolved in favour of the respondent and against the appellant.

ISSUE 2 (TWO)
Whether the Hon. Trial Judge was not in error of law when he held that he ‘saw and felt’ no gap in the traditional evidence of the Respondents.
I feel constrained to point out at this juncture that the defendant/appellant herein is rather confused about whether he is the “Appellant” or the “Respondent” as the case may be in this appeal. For example, at paragraph 5.4 of their unpaginated brief of argument, the appellant had made submission as follows:
Our complaint is that there are unexplained gaps in the traditional pieces of evidence put forward by the “Appellant” and his witnesses. There are ample pieces of evidence which undergirds our submission in this respect.

The above paragraph 5.4 is in contradistinction with the appellant’s submission in paragraph 5.5 of their brief. A situation of this nature is bound to create uncertainty in the mind of the Court and is likely to bring about speculation, which the Court is meant to shy away from.

Be that as it may, the Court is referred to para. 3 of the respondent’s statement of claim at page 4 lines 19–20 and his deposition on oath at page 12, lines 21–22 of the printed record and to note and compare it with his cross-examination at page 298, line 23 where he said that he deforested the land alone.

Furthermore, the learned counsel for the appellant contended that the respondent gave no names of those he allegedly gave money to for the deforestation. Counsel went further to canvass that the statement of the respondent under re-examination was what the trial Judge said had padded up the contradiction on whether the respondent deforested the land alongside five other persons or alone as he claimed under cross-examination. Learned counsel submitted that it was not within the ken of the learned trial Judge to proffer explanations or pad up the gapping cracks in the respondent’s case. Doing that will amount into jumping into the arena. See the cases of Adu vs. Gbadamos (2009) 19 WRN, pg. 178, 180 ratio 2; Buhari vs. INEC (2009) 7 WRN pg. 1 at 73, R. 24; and Ajose vs. Fed. Republic of Nigeria (2011) 6 NWLR Pt. 1244, pg. 468.

Relying also on the case of Irawo vs. Adedokun (2005) 1 NWLR Pt. 906, pg. 199, the appellant submitted that there were glaring in-explicable gaps in the respondent’s traditional evidence which should not have been glossed over by the trial Court. Learned counsel reasoned that had the trial Judge spotted the embarrassing gaps in the respondent’s root of title he doubtless would have dismissed his case. See the case of Eze vs. Atasie (2000) 9 WRN, PG. 73 at 75 R. 11. Counsel urged on us to hold that there were gaping holes in the respondent’s root of title and it was wrong and a perversity of justice for the trial Judge not to have ‘felt or seen’ the holes. He urged that we uphold their argument on this issue and set aside the decision of the lower Court.

The respondent while disagreeing with the submission of the defendant/appellant, pointed out that by gaps the said defendant/appellant meant that there were contradictions in the traditional history of the plaintiff/respondent.

RESOLUTION OF ISSUE 2 (TWO)
According to the learned counsel for the defendant/appellant, one of the major planks upon which the learned trial Judge stood to give a clean bill of health to the respondent’s traditional evidence goes as follows:
As to a gap created in the traditional history of the plaintiff conversed (sic) by the defendant (sic) counsel, I am yet to see it or feel it. Gaps are ordinarily created where the genealogical tree is long, spanning over many generations. If one generation is left out of the history, unexplained, then a gap is said to have been created. (See page 340, lines 4–8 of the record of appeal).

As aptly explained above by the learned trial Judge, gap has to do with time interval between one event and another. If perchance one or more of the time intervals is or are omitted and unaccounted for, then a gap or hole is created in the history of the event under focus. As in traditional history, gaps occur ordinarily where the genealogical trees pans over a long period of time. In the recent case of Mathias Mazang vs. Samaila Mashinkpen & Anor. (2018) LPELR-46144(CA), per Omoleye, JCA., on meaning and nature of traditional evidence held as follows: It should be noted straightaway that, the method of proof under discuss herein, that is, traditional history, has to do with the aggregate of past events passed down to living memory. In the circumstance, it is the narrative description and account beyond the living memory of the narrator, of who found and in what manner the land in dispute was found and the successive inheritors down to the claimants. In the case of: Dike vs. Obi Nzeka II (1986) 4 NWLR (Pt.34) p.144 the Supreme Court per Oputa, JSC (of blessed memory) at page 158, paras. F-G on the nature of traditional evidence pointedly held as follows: What then is traditional history or traditional evidence? When is such evidence relevant? Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of Section 44 of the Evidence Act, Cap 62 of 1958 Laws of the Federation of Nigeria. This Section provides: “S. 44: When the title to or interest in family or communal lands is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.
In most cases of such long lull, the human mind tends to forget the content and/or incidents which could have occurred in one or more of the past events. The learned trial Judge in the instant appeal further held that:…, there is only one generation or family tree which is still alive from the plaintiff’s side that deforested the land in dispute. The plaintiff who said he deforested the land along with others is still alive and the land has not evolved on anyone. The issue of gap creating (sic) cannot arise. (See page 340, lines 9–14 of the record of appeal). There is indeed no room for gap creation since the PW1 who is the founder was at all times material present and alive to tell the story of how he founded and funded the deforestation of the disputed land. See Eze vs. Atasie (supra).

On the other part, to contradict as defined by the Black’s Law Dictionary (6th Ed.) simply means, to prove a fact contrary to what has been asserted by a witness. The learned trial Judge was very articulate in distinguishing genealogical gap from contradictions, if actually any of them exist in the traditional evidence as led by the plaintiff/respondent.

The plaintiff/respondent pleaded the facts of deforestation and they offered evidence in substantiation of same. Notwithstanding the disparity as to the number of those who took part in the deforestation of the land in dispute and/or their names, the fact remains that the said land was deforested by the respondent.

Whether there were 100 or 20 or even nobody at all who assisted the respondent in the deforestation of the land in dispute, it makes no difference in the circumstances of this appeal.

With no broken chains or gaps to bridge and leaning on the pleadings and the evidence led in substantiation of the facts averred to by the respondent and his witnesses, the learned trial Judge was not in any error of law when he held that he ‘saw and felt’ no gap in the traditional evidence of the respondents. Issue 2 (two) is thus settled in favour of the respondent and against the appellant.

ISSUE 3 (THREE)
Whether the trial Court properly evaluate (sic) and appraise (sic) the pieces of evidence of the parties before it.
The appellant submits that the trial Judge did not properly evaluate or appraise the parties’ pieces of evidence. Learned counsel on his behalf argued that if the lower Court had properly evaluated and appraised the parties’ pieces of evidence he would have arrived at a different decision. In his opinion, the traditional evidence of the appellant is not porous. He also submitted that the respondent’s root of title had gapping, inexplicable and embarrassing holes which should have moved the trial Judge into dismissing the respondent’s case. Where this Court holds that the parties’ pieces of traditional evidence where plausible, then recourse would have to be made to the parties acts of recent possession on the disputed land. See the case of Kojo vs. Bonsie (2003) 34 WRN pg. 162.

Learned counsel for the appellant further contended that there was no way the lower Court could have adequately evaluated the parties’ pieces of evidence when he did not adequately reflect what transpired at the visit to the locus in quo in his report of the visit. He urged on us to hold that this is a clear case of perversity of justice. That the trial Judge for reasons best known to him side-stepped the issue of the appellant’s tenants on the land. That the fact that the respondent and his witnesses admitted that the appellant’s family has a land within the disputed area should have weighed on the trial Judge’s mind that the appellant is likely to be the owner of the disputed land. See Ayoola vs. Odofin (1984) 11 SC 120; and Ewo vs. Ani (2004) 17 NSCQR. Counsel also canvassed that the respondent averred in his amended statement of claim and his witness deposition on oath that the signpost was erected on the disputed land, the trial Judge in his record of his observation at the locus in quo indicated that the signpost was outside the land, by the Western side, immediately after Jezhi Kachiro (the appellant’s family land. That what this translates into is that the signpost was on the appellant’s family land. Counsel submitted that had the trial Judge properly evaluated the parties’ pieces of evidence, he would have noticed this gaping hole in the respondent’s case. See Oyedeji vs. Akinyele (2001) 29 WRN pg. 69 at 73 R. 7. Learned counsel for the appellant finally urged on us to uphold their argument and consequently set aside the decision of the lower Court.

The respondent while not agreeing with the submissions of the appellant, on his part submitted that an appellate Court will not normally disturb the findings of the trial Court except where such findings are shown to be perverse or not supported by evidence. See Ishola vs. Union Bank Ltd. (2005) 21 NSCQR 167 at 183.

On whether the defendant had proved recent possession, the learned counsel for the respondent submitted that from the evidence, while the defendant alleged that he has tenants on the land, none of such tenants testified in Court nor at the locus in quo. Counsel added finally that there was proper evaluation of the evidence of the parties by the learned trial Judge and urged that we dismissed the appeal with substantial cost.

RESOLUTION OF ISSUE 3 (THREE)
I do align myself with the submission of the respondent that it was the duty of the plaintiff/respondent to establish his case on the balance of probability. The appellate Court will not normally disturb the findings of the lower Court except where such findings are shown to be perverse and I have found no perversity in the findings of the lower Court in the instant suit.

Aside from establishing his ownership by way of his pleadings and evidence led on his behalf by the PW2, PW3 and PW4, the plaintiff/respondent showed acts of recent ownership by farming and harvesting produce from the disputed land up until when he allowed the land to lie fallow. It was in the course of visiting the land while lying fallow that the respondent noticed the signpost that was mounted on the land by the defendant/appellant. This prompted the action that yielded this appeal. The respondent as earlier found, established his root of title by deforestation, upon reliable and credible evidence. This is unlike the defendant/appellant who, though he averred in his pleadings that the same land was deforested by Nsayibo, yet failed to substantiate his claim by evidence.

By reason of the defendant/appellant’s failure to establish his root of title to the disputed land, any claim or act of possession he has purportedly exercised on the land tantamount to trespass. In the authority of Oyadare vs. Keji (2005) 7 NWLR Pt. 925, pg. 571, 584, the apex Court enjoined thus:
Where a claimant for title to land pleads traditional history but fails to prove his root of title by that means, he cannot turn around to rely on acts of ownership and possession to prove his title to the land because once the foundation of title, the traditional history has failed, there would be nothing to found acts of ownership.

Having clearly established his root of title on the preponderance of evidence, as against the defendant/appellant, the plaintiff/respondent is saved the burden of going further to establish acts of possession.

The learned counsel for the appellant at paragraph 6.7 of their brief of argument, contended that the learned trial Judge did not adequately reflect what transpired at the visit to the locus in quo in his report. Counsel submitted that this is a clear perversity of justice.

Now, the report of the visit to the locus in quo by the learned trial Judge is as contained in the lower Court’s proceedings of 8th March, 2016 and it reads as follows:
VISIT TO LOCUS IN QUO
Parties are in Court.
D. G. Shigaba, Esq. – For the Plaintiff.
Abel Samuel, Esq. – For the Defendant.
Samuel Kaura – took the Court around the land in dispute.
Plaintiff – Economic trees destroyed by fire but studs remain.
Neighbours
North – Kaura Masaba
East – Ebbah Road
South – Tanimu Auta
West – Family of Late Jezhi Kachiro Government Secondary School proposed land by the Defendant in October, 2010.
Signed
Judge
[See page 315, lines 12–26 of the record of appeal).

From the foregoing narratives of the learned trial Judge, it can be seen that he took cognizance of the fact that by the Western end of the disputed land is the presence of the “family of Late Jehzi Kachiro Government Secondary School proposed land by the Defendant in October, 2010”. The facts of the defendant’s family being present on the land in dispute, is an act this Court already found and termed to be an act of trespass. The insinuation of the learned counsel for the appellant that “the trial Judge for reasons best known to him suppressed these facts (sic) (facts that the Appellants, his tenants and members of the family were in possession of the disputed land)” is rather unfounded.

In the case of Christian Nwosu vs. Titus Mbadugha(1999) LPELR-6587(CA), this Court per Ubaezonu, JCA. (of blessed memory) on the purpose of a visit to the locus in quo, had this to say:
It is my view that the purpose of locus in quo is to enable the Court to see (with its eyes) whether what it had heard (with its ear) was true or false. As it was well put in Nwizuk v. Eneyok (supra), the purpose of visiting the locus was for the Court “to substitute the eye for the ear.” It could be very helpful as the truth begins to come out while lies begin to crumble.
By the visit to the locus in quo, the learned trial Judge was able to see things for himself and that helped him to properly evaluate the evidence as put forward by the respective parties.

The position of the defendant as a trespasser on the disputed land was not going to out or defeat the respondent’s established root of title. Again, that the respondent’s witness PW3 (Gara Pavunya) testified under cross-examination that the defendant’s family has a land around the disputed land does not translate to the defendant’s family having a land within the disputed land. Also, the testimony of the PW4 to the effect that the defendant has a farm sharing boundary with respondents’ land, does not connote the fact that the said farm is within the land in dispute.

On the whole, I am of the humble view that the learned trial Judge did a thorough evaluation and appraisal of the pieces of evidence put forward by the respective parties and came to the right conclusion that the plaintiff’s case succeeds, while the defendant’s counter-claim fails. I cannot therefore help but sustain his unassailable findings.

Issue 3 (three) is hereby resolved in favour of the respondent and against the appellant.

With the resolution of all the 3 (three) issues in favour of the respondent and against the appellant, it follows that the appeal lacks merit and is therefore dismissed. The result is that the judgment of the High Court of Nasarawa State, holden at Mararaba-Gurku in suit No. NSD/MG123/2011, presided over by Hon. Justice Haruna A. Offo, J., and delivered 3rd November, 2016 is accordingly affirmed.

Costs assessed and fixed at N100,000.00 (One Hundred Thousand Naira) is awarded in favour of the respondent and against the appellant.
Appeal dismissed.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother Hon. Justice C. Ifeoma Jombo-Ofo, JCA, and there is no doubt that my Lord has comprehensively dealt with the salient issues raised by the parties in this appeal.

I shall adopt all his reasonings as mine in dismissing the appellant’s appeal and affirming the judgment of the lower Court.
I also abide by the consequential order as to costs.

MUSLIM SULE HASSAN, J.C.A.: Having read in advance, the lead judgment of my learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA, just delivered. With whose reasoning and conclusion I entirely agree and being unable to reasonably add to the exhaustive treatment of the issues therein made.
Appeal dismissed as to cost awarded.