EMMANUEL MUSA v. GALIA NUGIA (2014)

EMMANUEL MUSA v. GALIA NUGIA

(2014)LCN/6961(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of March, 2014

CA/J/86/2013

RATIO

BURDEN OF PROOF IN CIVIL CASES: PREPONDERANCE OF EVIDENCE

The law is settled that civil cases are decided on the preponderance of evidence or on balance of probabilities. In considering whether the evidence preponderates in favour of one party to the dispute or not, the court is to take into consideration the entire evidence before it and weigh it together to see which set of evidence out weighs the other; before preferring such evidence instead of the other. This is what the Supreme Court said in the case of Wachukwu vs. Onwanwanne (2011) 14 NWLR Pt.1260 P.1 @ 17:
“Civil cases are decided on preponderance of evidence and balance of probabilities. Thus, unless a plaintiff’s case is so patently incredible and unreasonable, a trial court is bound to carefully consider ‘the competing evidence of the parties to determine in whose favour the evidence preponderates. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of set of facts was given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given d in evidence by the other party, the trial court, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weight more, accept it in preference to the other, and then apply the appropriate law to it. (Elias v. Omo-bare (1982) 5 SC 25; Woluchem v. Gudi (1981) 5 SC 291; Duru v. Nwosu (1989) 4 NWLR (Pt.363; Akintola v. Balogun (2000) 1 NWLR (Pt.642) 532; Odofin v. Mogaji (1978) 2 NSCC 275 referred to.) (Pp 36 – 37, paras. G – C).” PER IBRAHIM SHATA BDLIYA, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

It is the primary responsibility of a trial court, which saw, observed and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value, not the appellate court which neither heard nor observed their demeanour while giving evidence in the witness box. A trial court is expected to evaluate the evidence before taking a decision. See Fagbenro V. Arobadi (2006) 7 NWLR Pt.978 P.172 @ 193; Sha (Jr.) V. Kwan (2000) 8 NWLR Pt.670 P.685.

How can a trial court evaluate the evidence before it? In evaluating evidence, the trial court must put the totality of the testimony or evidence adduced by the parties, on an imaginary scale before it comes to a decision as to which evidence it believes or accepts and which it rejects. The evidence be weighed one side against the other and then decide upon the preponderance of credible evidence which weighs more. The court would then see which is heavier, not by the number of witnesses called, but by the quality of the probative value of the testimony of the witnesses. This is what is meant when it is said that a civil case is proved or decided on the balance of probabilities or on the preponderance of evidence. See Henshaw v. Effange (2009) 11 NWLR Pt. 1151 P.65 @ 87; Mogaji v. Odofin (1978) 4 S.C. 91; Woluchem v. Gudi (1981) 5 S.C. 291; Omokhafe v. Mil. Adm. Edo state (2001) 14 NWLR Pt.733 P.290 and Trade Bank v.
Chami (2003) 13 NWLR Pt.836 P.158.

Where a trial court unquestionably evaluates the evidence and appraises the facts, it is not the business of an appellate court to substitute its own views for the views of the trial court. An appellate court is not to disturb the findings of facts and evaluation of evidence by the trial court simply because it could have done it differently so long as the judgment of the trial court can be supported by the evidence. It is not the duty of an appellate court to disturb the ascription of probative value to evidence before the trial court, unless there are good and exceptional reasons to do so. See Eze vs. Okoloagu (2010) 3 NWLR Pt.1150 P. 182 @ 218 and Onwuka v. Ediala (1989) 1 NWLR Pt.90 P.182.

Where however, a trial court abdicates its duty of evaluation of evidence and the ascription of weight to evidence, or when it is demonstrately shown that it had not done it properly or having done it, came to a wrong decision, an appellate court is in a good position as the trial court to evaluate the evidence and ascribe or approbate value thereto before taking a decision. See Fagbemi V. Anbadi (2006) 7 NWLR Pt. 978 P.172 @ 193; Romaine V. Romaine (1992) 4 NWLR Pt.288 P.650; Akinola V. Oluwa (1962) 1 SCNJ P.352; Ebba V. Ogodo (1984) 1 S.C. 372 and Kazeem V. Mosaka (2007) 17 NWLR Pt.1064 P.523 @ 546.
Generally, the attitude of an appellate court to the evaluation of evidence by the trial court should be that of whether the trial court properly evaluated the evidence and reached a correct decision or not. It is not the method or the manner that necessary determines the proper evaluation of evidence. So long as the trial court considered the evidence from both sides, gave reason for acceptance side and why it rejected the other, and arrived at a. decision one way or the other, an appellate court has no business to interfere or disturb such decision. See Anyafalu V. Agazie (2006) 5 NWLR Pt.975 P.260; and Woluchem V. Gudi (1981) 5 S.C. 291.PER IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

EMMANUEL MUSA Appellant(s)

AND

GALIA NUGIA Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): The appellant as plaintiff sued the respondent as defendant before the Uba Area Court (hereinafter referred to as the trial Court seeking for, (a) a declaration of title to a parcel of land, (b) a declaration that the entry to the land by the respondent is tantamount to trespass, (c) an order restraining the respondent by himself, privies, assigns or any other person claiming through him committing further trespass to the land, (d) general damages for trespass in the sum of Ten Thousand Naira (N10,000.00) and (e) cost of the suit. The trial Court, after taking evidence from the witnesses of the parties and counsel addresses entered judgment in favour of both parties by dividing the land equally among them. The appellant did not agree with that judgment, hence he appealed to the Upper Area Court (Askira) (hereinafter referred to as the Upper Area Court). That court, after hearing the parties allowed the appeal, set aside the judgment of the trial court and entered judgment in favour of the appellant granting the declarations sought before the trial court. The respondent was dissatisfied with the judgment, hence he appealed to the High Court of Justice, Borno State, (hereinafter referred to as the lower Court). The lower court, after the hearing of the appeal, allowed it and set aside that judgment. The appellant being dissatisfied, with leave of court, appealed to this Court vide a Notice of appeal filed on 29th of February, 2013 on four (4) grounds. Without their particulars, the four (4) grounds of appeal are thus:
(i) The Learned Judges of the lower court erred in Law when they dismissed the claim of the Appellant; the Respondent having failed to show- that the concurrent finding’s of the lower courts are perverse.
(ii) The Learned Judges of the Lower court erred in law when they held that “it is trite law that to succeed on a claim for declaration of title on land it is a sine qua non for the plaintiff to establish the identity of the land in dispute …” which has occasioned a miscarriage of justice.
(iii) The Learned Judges of the Lower court erred in law when they held that “further that all the respondent’s witnesses did not give evidence as to who found the land and how it was founded intervening owners through whom the respondent claim” which has occasioned a miscarriage of justice.
(iv) The judgment of the Lower court is against the weight of evidence.

The appellant filed brief of argument on the 10th of May, 2013, wherein he distilled 2 issues for determination. The respondent filed brief of argument on the 31st of October, 2013, wherein he adopted the issues formulated by the appellant. The appellant in response to the arguments in the respondent’s brief, filed a Reply brief on the 18th of December, 2013, deemed filed on the 23rd of January, 2014. The appeal was heard on the 23rd of January, 2014, whereat the learned counsel to the parties adopted their respective briefs of argument accordingly. Learned Counsel to the appellant did urge the court to allow the appeal, set aside the judgment of the lower court and judgment per the reliefs sought before the trial court. Learned Counsel to the respondent urged the court to dismiss the appeal and affirm the judgment of the lower court. The two (2) issues formulated in the appellant’s brief which were adopted in the respondent’s brief of argument are as follows:
(i) Whether by the preponderance of evidence and the balance of probabilities, the learned judges of the lower Appellate Court were right to have interfered with the concurrent judgments of both trial court and the Appellate Upper Sharia Court without any evidence of perversion/perversity.
(ii) Were the Learned Judges of the Lower Appellate Court right to have raised the issue of identity of land suo motu and interfered without regards to the evidence at the visit to the locus in quo.

On page 85 of the record of appeal, the learned judges of the lower court found and held thus:
“It is clear that PW2 has given evidence against the plaintiff who has called him as a witness and in the circumstances this court is bound to accept his evidence as true with all its sweetness and bitterness. See ODI V. IYALA (2004) All FWLR (PART 207) 570 at 591 – 592.
In the light of the evidence available at the trial court, the trial court ought not to have relied on same in entering in favour of the parties before us. The lower court was also in error when it entered judgment in favour of the respondent. Since, there was no credible evidence to support the claims for declaration of title to the land and for trespass to the land, the lower court ought to have dismissed the case of the respondent who was the plaintiff before the trial court.
Having resolved the lone issue for determination in favour of the appellant, we hereby allow the appeal and set aside the judgment of the lower court. We do hereby dismiss the claim of the respondent who was the plaintiff before the trial court.”

Were the learned judges of the lower court justified by interfering with the judgment of the Upper Area Court in view of the evidence adduced before the trial Area Court the findings and the decision of the Upper Area Court?

Abdulsalam Esq., who settled the appellant’s brief of argument submitted that the learned judges of the lower court were wrong in interfering with the concurrent findings of the trial and Upper Area Courts without showing how the decisions of the said courts were perverse, thereby set it aside and dismissed the appellant’s claim at the trial court. Learned Counsel adumbrated that it is the duty of a trial court to assess, evaluate and ascribe probative value to the evidence adduced by the parties. That where the decision of the trial court has been based on the evidence which was evaluated by it, an appellate court has no right to interfere with the evaluation of evidence and the findings of the trial court, unless the evaluation of the evidence and the decisions thereon were not improperly done or not done at all. Learned Counsel cited the cases of Agbeje v, Ajibola (2002) FWLR Pt.92 P.1677; Nwangwu vs. F.B.N. Plc. (2009) All FWLR Pt. 500 P:712; Ataske vs. Mogaji (2009) All FWLR Pt.641 P.887 and Akanmode vs. Dino (2009) All FWLR Pt.471 P.529 to buttress the submissions supra.

It was learned counsel’s further submission that the judgment of the lower court is perverse in that same was not based on the evidence adduced at the trial court. As to when a decision of a court is perverse, learned counsel cited and relied on the authorities of Udengwu vs. Uzuegbu (2003) FWLR Pt.179 P.1172 and Bunyan vs. Akiboye (1999) NWLR Pt. 609 P.31, among others. It was pointed out that the lower court did not re-evaluate the evidence of the appellant’s witnesses in arriving at the decision and that same were contradictory, therefore, unreliable to support the decision of the Upper Area Court. It was counsel’s contention that there are no contradictions or discrepancies in the evidence of the 1st and 2nd witnesses (PW1 and PW2) to have warranted the interference of the lower court in allowing the appeal before it. It was further submitted that the lower court erred in holding that the appellant did not adduce evidence on how the land in dispute was founded and the intervening holders of title to it up to him. That had the learned judges of the lower court adverted their minds to the evidence before the trial court and Upper Area Court, their findings that there were contradictions or discrepancies in the evidence of witnesses for the appellant would not have been so.

On the alleged long possession of the land in dispute by the respondent which the learned judges of the lower court relied on, it was contended that mere farming on a land can not ripe into ownership or conferring title in the land to the person in possession thereof. The cases of Isiyemi vs. Adeniyi (1992) 2 WACA 126 @ 136 and Ado vs. Kamo 3 WACA 240 among others were cited in aid. Learned Counsel cited and retied on the case of Wablari vs. Alim (2004) All FWLR Pt.224 P.2030 @ 2041 to reinforce his submission that mere possession or farming on a land without more can not confer title in such land where there is earlier title vested in another person. It was counsel’s contention that having adduced evidence on how the appellant’s father, grandfather and great grandfather acquired title to the land in dispute, the lower court judges erred in law when they disregarded such evidence in dismissing the appellant’s claims in their judgment setting aside the judgment of the Upper Area Court.

As to the evidence at the locus in quo, it was submitted that where parties were afforded equal opportunity in the proceedings thereat, a court should not reject the findings of a trial court merely because there was failure to comply with technicalities here and there. The case of Ogunameh vs. Adebayo (2008) All FWLR Pt.467 P.168 @ 206 was cited to buttress the submission supra. As to which evidence to accept, and rely on in taking a decision by a court of law, learned counsel submitted that a court can not pick and choose which evidence to accept and rely on if it had no opportunity of seeing, and observing the demeanor of such witnesses giving the evidence. In this case, learned counsel pointed out, the trial court and the Upper Area Court who had the opportunity of seeing and observing the demeanor of the witnesses who gave evidence were in-a better position to decide their credibility and reliability than the learned judges of the lower court. It was also submitted that not in all cases that contradiction or discrepancy in the evidence of witnesses would render such evidence unreliable or discredited. The cases of Owena Bank Plc. vs. Olatunji (2002) FWLR Pt.124 P.523, among others, were cited to reinforce the submission supra. It was learned counsel’s contention that the judgment of the learned judges of the lower court is against the weight of evidence, therefore perverse. The court has been urged to hold so, and allow the appeal, set aside the judgment of the lower courts and restore that of the Upper Area Court.

Emem Esq., who settled the respondent’s brief of argument conceded that the evaluation and ascription of probative value to evidence adduced before the court is the primary duty of a trial court. That when a trial court has preformed such duty judiciously and arrived at a decision supported by such evidence/ an appellate court can not interfere with such findings and decision. The case of Sha vs. Kwam (2005) 5 S.C.N.J, P.109 was cited to buttress the submission supra. There are however exceptions to the general proposition of the principles of law adumbrated supra which have been enumerated on pages 10 – 11 of the brief of argument. It was learned counsel’s submissions that having regard to the grounds of appeal, the issues distilled therefrom and the submissions of counsel to the court, the learned judges of the lower court were justified in re-evaluating the evidence on record whereby they allowed the appeal and dismissed the claims of the appellant.

It was counsel’s submission that the lower court was right in law in setting aside the decision of the Upper Area Court because there was no credible evidence to support or justify that decision.

On the alleged contradiction in the evidence of the witnesses for the appellant at the trial court, learned counsel contended that the learned judges of the lower court were right in relying on same as the basis for discrediting the evidence of the appellant’s (then plaintiff’s) witnesses which was the basis of their setting aside the decision of the Upper Area Court and dismissing the appellant’s claims. Learned Counsel urged the court to resolve this issue in favour of the respondent.

Were the learned judges of the lower court right in their decision that the evidence adduced at the trial and Upper Area Court were not properly evaluated having regard to the contradictions and discrepancies, which was the basis of their allowing the appeal before them and coming to a decision that the respondent had adduced credible evidence in proof of his claim of title to the land in dispute? Before delving into the resolution of whether there was proper evaluation of the evidence or not, it is pertinent to know what evaluation of evidence means, how it is performed, where not performed or improperly performed, and what an appellate court should do in such circumstances. This court in Eze vs. Okoloagu & Ors. (2010) 3
NWLR Pt.1180 P.183 @ 218 per Tsamiya J.C.A., said:
“On evaluation of evidence, I wish to state that, the court or tribunal is duly bound to evaluate the whole evidence adduced by both parties in order to come to the right conclusion. What is the meaning of the expression evaluation? Evaluation means the assessment of evidence as to give value to qualify to it. See also Onwuka V. Ediala (1989) 1 NWLR Pt.96 P.182 @ 208.”
It is the primary responsibility of a trial court, which saw, observed and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value, not the appellate court which neither heard nor observed their demeanour while giving evidence in the witness box. A trial court is expected to evaluate the evidence before taking a decision. See Fagbenro V. Arobadi (2006) 7 NWLR Pt.978 P.172 @ 193; Sha (Jr.) V. Kwan (2000) 8 NWLR Pt.670 P.685.

In order to arrive at a correct decision as to whether the learned judge trial Court and the learned judge of Upper Area Court evaluated the evidence adduced before them and properly ascribed probative value thereto or not, a resort to the judgments of these courts is pertinent. The learned judge of the trial court referred to the evidence adduced before him on pages 39 – 41 of the record of appeal and arrived at his decision at the bottom of page 41 as follows:
“So therefore the court declared title to the land which grandfather to Emmanuel was farming on, that is the land which Nugia was told to return to the children or grandchildren of Neksida if they demand back, therefore let it be return to them since they demanded now therefore court ordered the return of the land to the plaintiff being he is the grand child of Neksida.
The second land which the father to PW1 shown to Nugia which is the land Nugia or his children cleared base on that court ordered that the children of Nugia are entitle to it.
Since the boundary of the two lands can not be easily identified court ordered that the whole lands be divided into two, the plaintiff will take half of the land in respect to the land which Neksida was farming on before it was given to Nugia. Likewise the court declare title to the remaining half of the land to Nugia in respect to the fact that the land which the father to PW1 shown to him is the one which his son cleared.
The court has ordered for the division of the land into two on equal size plaintiff will take half of the land, likewise the defendant will take half of the remaining land.”

On appeal to the Upper Area Court against the decision of the trial court which has been reproduced supra the learned judge of that court considered the evidence that was adduced before the trial court from pages 49 to 50 of the record of appeal and arrived at his decision thus:
“According to the Islamic law, it is must for a person who is claiming ownership of the land to prove how he obtained the land in question. In Sharia law, there are three (3) ways of owning a land.
1. You inherited the land
2. You bought the land and or
3. You cleared a virgin land.
Assuming you come from another place, it is the head of that village that will show you the land to clear who will tell you that from today, you are the owner of this land.
The respondent and his witnesses are saying that the respondent inherited the farmland from his grandfather and brothers but the appellant did not show to this court how he got the land. Also, the words Girbi (cultivate) sayarwa (selling) and sharewa (clearing) differs from one another. Girbi (cultivate) means person who started (clearing) means some one might have worked on the land.
With regard to swearing, there is no provision under the Sharia law except one person who can tell the truth.
Sharing of this farm land among the parties by the court of first instance is not proper. The best is to give or affirm the land to one person based on the testimony of the witnesses.
Based on the submission of the respondent’s counsel and the findings of this court, this court is satisfied with the reasons adduced above. And do hereby affirmed to the respondents the whole farmland based on the reasons I stated above.”
The respondent who was the appellant before the Upper Area Court was not satisfied with the decision of the Upper Area Court, hence his appeal to the lower court. After hearing of the appeal by the lower court, the learned judges of that court reviewed the evidence on the record of appeal before them and on page 85 thereof came to a decision as follows:
“It is clear that PW2 has given evidence against the plaintiff who has called him as a witness and in the circumstance this court is bound to accept his evidence as true with all its sweetness and bitterness. See ODI V. IYALA (2004) All FWLR (PART 207) 570 AT 591 – 592.
In the light of the evidence available at the trial court, the trial court ought not to have relied on same in entering judgment in favour of the parties before us. The lower court was also in error when it entered judgment in favour of the respondent. Since there was no credible evidence to support the claims for declaration of title to the land and for trespass to the land, the lower court ought to have dismissed the case of the respondent who was the plaintiff before the trial court.
Having resolved the lone issue for determination in favour of the appellant, we hereby allow the appeal and set aside the judgment of the lower court. We do hereby dismiss the claim of the respondent who was the plaintiff before the trial court.”

Were the learned judges of the lower court justified in arriving at their decision in allowing the appeal and set aside the decision of the Upper Area Court whereby dismissing the claims of the appellant, on the ground that there was no cogent and credible evidence to warrant the judgment of the Upper Area Court which declared title to the land in dispute to the appellant’s. What was the evidence adduced by the appellant before the trial court. The evidence of the witnesses for the appellant (who was the plaintiff) are on pages 6 to 8 in respect of PW1; page 9 in respect of PW2; page 10 PW3; page 12 for PW4 and page 16 for PW5 of the record of appeal. The evidence of the witnesses for the respondent (who was the defendant) PW1 on page 19 for DW1; pages 22 – 23 for DW2 and pages 24 – 25 for DW3 of the record of appeal. The learned judges of the rower court set aside the decision of the Upper Area Court on the ground that the evidence of the witnesses for the appellant are contradictory or consisted of discrepancies inter se and intra se. The Lower court judges found that the evidence of the respondent and his witnesses are more credible than the evidence of the appellant and his witnesses. This is what the learned judges of the lower court said on page 85 of the record of appeal:
“In the light of the evidence available at the trial court, the trial court ought not to have relied on same in entering judgment in favour of the parties before us. The lower court was also in error when it entered judgment in favour of the respondent. Since there was no credible evidence to support the claims for declaration of title to the land and for trespass to the land, the lower court ought to have dismissed the case of the respondent who was the plaintiff before the trial court.”

Were the alleged contradiction and or discrepancy in the evidence of the appellant and his witnesses on material facts which could discredit their evidence rendering the evidence of the respondent more credible to warrant the decision arrived at by the learned judges of the lower court? When is a piece of evidence contradictory. In Nwande v. Ufomata (2009) All FWLR Pt.497 P.189 @ 204, it was held that contradiction exists in the evidence of witness or witnesses if one pieces of evidence is totally opposite to the other, but where it is short or add to the other evidence, such shortness or addition can not be regarded fatal to the extant of marring or discrediting the entire evidence to render it worthless and of no probative value. That minor discrepancies do often exist in the testimonies of witnesses who are always ready and willing to tell the truth as it is always human to err. That it is natural and normal for differences to exist in the testimony of witnesses. What should be of great concern to the court in the assessment and evaluation of evidence as to which one to be relied on is the totality of the evidence, not the minor discrepancies in the testimony, for it is impossible for one person to give evidence exactly in the same manner and contents as another. Therefore it is human to differ with one another. See Owena Bank Plc. vs. Olatunji (2002) FWLR (Pt.124) P.523; Fataba vs. Ogundahunsi (2003) FWLR Pt.154 P.569 and Ejesimba v. Onazarike (2002) FWLR Pt.128 P.1386.

The contradictions or discrepancies in the evidence of the appellant’s witnesses at the trial court which were accepted as reliable and credible by the trial court and the Upper Area court are not on material issues which could have destroyed their credibility as found and held by the learned judges of the lower court. Therefore, had the learned judges of the lower court considered the totality of the evidence on record, they would not have arrived at the conclusion that the evidence of the respondent was more credible than that of the appellant more so when it is not in dispute that the respondent’s father was the one who migrated from another village to the village of the appellant, his great grandfather, grandfather and father. In other words, the learned trial judges erred in law in preferring the evidence of the respondent than that of the appellant on who first founded and possessed the land in dispute.
The law is settled that civil cases are decided on the preponderance of evidence or on balance of probabilities. In considering whether the evidence preponderates in favour of one party to the dispute or not, the court is to take into consideration the entire evidence before it and weigh it together to see which set of evidence out weighs the other; before preferring such evidence instead of the other. This is what the Supreme Court said in the case of Wachukwu vs. Onwanwanne (2011) 14 NWLR Pt.1260 P.1 @ 17:
“Civil cases are decided on preponderance of evidence and balance of probabilities. Thus, unless a plaintiff’s case is so patently incredible and unreasonable, a trial court is bound to carefully consider ‘the competing evidence of the parties to determine in whose favour the evidence preponderates. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of set of facts was given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given d in evidence by the other party, the trial court, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weight more, accept it in preference to the other, and then apply the appropriate law to it. (Elias v. Omo-bare (1982) 5 SC 25; Woluchem v. Gudi (1981) 5 SC 291; Duru v. Nwosu (1989) 4 NWLR (Pt.363; Akintola v. Balogun (2000) 1 NWLR (Pt.642) 532; Odofin v. Mogaji (1978) 2 NSCC 275 referred to.) (Pp 36 – 37, paras. G – C).”

If the learned judges of the lower court had adverted their minds to the principles of law enunciated in the case supra, their decision would have been different in that they would have realized that the evidence of the respondent were not more credible than that of the appellant. Rather, the evidence of the appellant was more credible than that of the respondent. It is on this premise that I am unable to agree with the learned judges of the lower court that the learned judge of the Upper Area Court erred in law when he found and held that the appellant did not prove his title to the land in dispute, rather it was the respondent who had proved his title to the land. The lower court judges did not therefore properly evaluate the evidence on record as adduced before the trial court. The decision in setting aside the judgment of the Upper Area Court was therefore not based on proper evaluation of the evidence adduced at the trial court. Such decision is therefore perverse which occasioned a miscarriage of justice. A decision is said to be perverse when it is not based on evidence or can not be supported by the evidence on record. See Onagoruwa v. State (1993) 7 NWLR Pt.303 P.49 and Oguntayo vs. Adelaja (2009) All FWLR Pt.495 P.1626 @ 1635. In view of the foregoing, I have no difficulty in resolving Issue one (1) in favour of the appellant. I so resolve.

As to the 2nd Issue, that is, whether the learned judges of the lower court were right in raising the identity of the land suo motu and resolved same without regard to the evidence at the locus in quo, I think a resort to the judgment of the lower court on this issue is apt at this juncture. On page 84 of the record of appeal this is what the learned judges of the lower court said:
“It is trite law that to succeed on a claim for declaration of title to land, it is a sine qua non for the plaintiff to establish the identity of the land in dispute. See ALHAJI GONI KYARI V. ALHAJI CIROMA ALKALI (2001) FWLR (PART 60) 1481 at 1505 – 1506.”

From what the learned judges of the lower court stated which has been reproduced supra, the identity of the land in dispute was no put in issue, rather only the principles of law that is required in proving title to land generally was adumbrated. The principles of law stated by the learned judges did not influence their decision in any way because identity of the land was not an issue before the trial court nor the lower court. In my considered view, the learned judges of the lower court were entitled to state any principles of law in their judgment even though it was not directly in issue at the time. Though the learned judges of the lower court did not advert their minds to the evidence given at the locus in quo in stating the principles of law that in considering whether to grant the claim of title to land, the identity of such land must be proved had no effect on the judgment of the court. The learned judge of the lower court were therefore right in enunciating the principles of law on the need to establish identity of a land where there is a claim of title to such land. Having resolved this 2nd issue in favour of the appellant, the appeal succeeds. The appeal is hereby allowed. The judgment of the lower court is hereby set aside. The judgment of the Upper Area Court is hereby restored in view of the credible evidence adduced at the trial court by the appellant in proof of his title to the said land. The appellant is entitled to costs, which is hereby assessed at N30,000.00. Same is awarded to the appellant against the respondent.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I had before now read in draft the lead judgment just delivered by my learned brother, Bdliya, JCA. I fully agree with him that this appeal is meritorious and ought to be allowed. I hereby also allow it. I abide by all the consequential orders made in the lead judgment, including the order for costs.

CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A.: I have had the opportunity of reading in draft the Judgment read by my learned brother I.S. BDLIYA JCA and I agree that there is merit in this appeal. The Judgment of the lower Court is hereby set aside. The Judgment of the Upper Area Court is accordingly restored.
I endorse the order as to costs.

Appearances

A.B. Abdulsalam Esq.For Appellant

AND

Roland C. EmemFor Respondent