LAWAL DIKKO & ORS v. YAHAYA ABDUL & ORS (2014)

LAWAL DIKKO & ORS v. YAHAYA ABDUL & ORS

(2014)LCN/7734(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of July, 2014

CA/K/203/2008

RATIO

COURT: DUTY OF COURTS; THE PRIMARY FUNCTION OF THE TRIAL COURT TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO EVIDENCE

As it is the law, the primary function of evaluating and ascribing probative value to evidence is that of the trial court which heard, saw and observed the demeanor of the witnesses. The trial court having these advantages is eminently placed in the best position of evaluating and ascribing the proper value to the evidence adduced before it and making findings thereon. Generally, therefore, it is not the business of an Appeal Court to interfere with the performance of this function by the trial court except where it is shown that the trial court did not do so in accordance with the well laid down principles of law or did not use its advantage of seeing and observing the witnesses. See Iriri vs. Erhurhobora (1991) 2 NWLR (Pt.173) 252. However, where the trial Judge failed to evaluate the evidence and make proper findings on the issue, the Court of Appeal is in as much a good position as the trial Court to deal with the issues and make the proper findings. See Chief James Olepiri & Ors. Vs. Chief Igoni Jonah & Ors. (1961) 1 ALL NLR 102, The Appeal Court is usually not in a hurry to perturb or disturb the findings of facts made by the trial court except where such findings are unsound or are perverse.
Thus, where the judgment of the Lower Court was reached either upon erroneous inference drawn from findings of facts or that its application of the law to properly found facts is perverse or erroneous, the Appeal Court has the duty to intervene to correct the injustice so caused. See First African Trust Bank Ltd vs. Partnership Invest. Co. Ltd (2003) 18 NWLR (Pt.851) 35 or (2003) 12 SC (Pt.1) 90. per. AMINA AUDI WAMBAI, J.C.A.

LAND LAW: TITLE TO LAND; IN WHAT CASE IS THE IDENTITY OF LAND AN ISSUE BETWEEN PARTIES
However, the law is settled that where as in this case the identity of the land was not an issue at pleadings as same is well known to all parties, See Alechenu vs. Oshoke (2002) 9 NWLR (Pt.773) 521, or where as in this case the case has travelled to many courts over the same subject matter and also where an interlocutory injunction has been sought, it is presumed that the identity of the land is not an issue between the parties. See Anyanwu vs. Uzuwaka (2009) 7 SCNJ 29 at 36. The law does not require either the plaintiff or the defendant/counter-claimant to prove the identity of the land, which is well known to all the parties. See Nadi vs. Oseni (2003) 48 WRN 12, Adedeji vs. Oloso (2007) LPELR 86 (SC). per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: PROOF OF TRADITIONAL HISTORY; WHAT A PARTY WHO RELIES ON TRADITIONAL HISTORY MUST ESTABLISH

Now, on the proof by traditional history, it is no longer subject to any argument that a party who relies on traditional history as a means of proving title to land must not only plead but lead evidence to establish the followings:-
“(1) who founded the land
(2) what manner the land was founded
(3) names and particulars of successive owners through whom the land descended from the founder to a living descendant who would most likely give that oral history.”
See Nruma vs. Ebuzoeme (2006) 2 WRN 133 at 153 lines 20 – 45, Akinloye vs. Eyiyiola (1968) NMLR 92.
A party relying on traditional history must therefore prove not only the founder of the land who his ancestors were but also how the land was founded and how by credible and unbroken chain of evidence, the land devolved unto him.
Failure of the party to plead and or prove any of these conditions is tantamount to failure to prove his title as claimed. per. AMINA AUDI WAMBAI, J.C.A.

LAND LAW: TITLE TO LAND; WHETHER A PARTY SEEKING A DECLARATION TO TITLE TO LAND IS NOT BOUND TO PLEAD AND PROVE MORE THAN ONE ROOT OF TITLE TO SUCCEED

It is important to point out that the acts of long possession being relied upon by the Appellants in this matter is predicated on the traditional history as pleaded by them. It is settled law that in a situation like this, where reliance on traditional history fails, the party cannot fall back to long possession on the land which is predicated on the traditional history pleaded which he has failed to prove.
In Ezuchukwu vs. Ukachukwu (2004) 17 NWLR (Pt.902) 227, SC, the court stated the position of the law, thus:
“A party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where he relies on traditional history and in addition acts of ownership and long possession predicated on the traditional history as pleaded he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of history is unavailable.”
In the light of all these, the learned trial Judge was right in holding that the Appellants failed to prove the root of their title. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: HEARSAY EVIDENCE; WHETHER HEARSAY EVIDENCE IS ADMISSIBLE

Generally, except in a few cases exempted by law, a witness can only testify to what he heard or saw and not to what he was told. The evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and it is trite that hearsay evidence is not admissible in evidence. See Ozude vs. IGP (1965) 1 All NLR 106. See also Christopher Idahosa vs. Sgt. Stephen Idahosa (2010) LPELR 9072 (CA). per. AMINA AUDI WAMBAI, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

1. LAWAL DIKKO
2. ALH. HASSAN DIKKO
3. DANGANA DIKKO
4. FATIMA DIKKO
5. TANKO DIKKO
6. TANBAYA DIKKO Appellant(s)

AND

1. YAHAYA ABDUL
2. SANI YAHAYA
3. JIBRIL YAHAYA
4. MUSA ABDUL
5. RABIU ABDUL Respondent(s)

AMINA AUDI WAMBAI, J.C.A.(Delivering The Leading Judgment): This appeal is against the decision of Kaduna State High Court sitting at Zaria in suit No.KDH/Z/174/2004 delivered on 25th June, 2008 by M. L. Bello J., wherein the plaintiffs’ (now Appellants) case was dismissed.

At the Lower Court the Appellants as plaintiffs claimed against the Respondents as defendants, as follows:

“(a) A declaration of title that the farmland and farm lying and situate at Kundu village along Birnin Gwari Road, Karatt, Karau District of Giwa Local Government of Kaduna State belong to the plaintiffs.
(b) A declaration that defendants trespassed into the plaintiffs land and destroyed plaintiffs farm on the 20/06/2004.
(c) Perpetual injunction restraining the defendants by themselves, their servants, agents, privies, representatives and whosoever claiming through them from trespassing, entering into and tampering the plaintiffs land, cultivating the land or to do any other thing whatsoever and in any manner on the plaintiffs land lying and situate at Kundu village along Birnin Gwari Road, Karau, Karau District of Giwa Local Government of Kaduna State.
(d) Claims damages against the defendants severally and jointly for the destruction of plaintiffs farms on 20/06/2004 as follows:-
(i) N180,000 being cost of 60 bags of fertilizer applied on the farm at N3,000 per bag.
(ii) N100,000 being cost of labour
(iii) N12,000 cost of seeds planted
(iv) Loss of earning for both corn, beans and Okro at N1,311,000 i.e 205 bags of corn at N3000 = N615,000, 17 bags of beans at N8,000 per bag = N136,000, 1400 baskets of Okro at N400 per basket = N560,000
(v) N350,000 as general damages for hardship because of the means of plaintiffs livelihood has been destroyed.
(vi) The cost of filing the suit.”

In denial of the plaintiffs’ (hereinafter supply referred to as the Appellant) claim, the Respondents (then the defendants), filed a 20 paragraphed statement of defence.

At the close of pleadings, hearing in the matter commenced. While the Appellants called 5 witnesses in support of their claim, the Respondents called three witnesses to deny the Appellants claim.

The case for the Appellants at the Lower Court was that the farmland in dispute situate and lying at Kundu village along Birnin Gwari Road at Karau, in Karau District of Giwa Local Government Area of Kaduna State belongs to the Appellants having inherited same from their father Dikko Abdul who was born on the land and farmed on it until he died in 1985 at the age of 110 years. Dikko Abdul also inherited the land from his own father, Abdul, the first person to own the land over 200 years ago.

Both the Appellants’ late grandfather and father farmed on the land unchallenged.

The Appellants who inherited the land from their father after the latter’s demise, were also born on the land and had been farming thereon unchallenged until about 4 years before the institution of the suit at the Lower Court on 28/7/2004 when the Appellants father claimed ownership of the land.

The Respondents trespassed on the land, which act caused the Appellants to institute an action against the Respondents at Chief Magistrate Court for trespass. While the case was still pending, the Respondents went into the land and completely destroyed the Appellants planted crops on the land and thereby causing the Appellants the loss of the crops and earnings therefrom amounting to N1,311,000.

That the late Respondents’ father once sued the first Appellant at Area court Sabon Gari Zaria which court convicted the 1st Appellant for trespass. The said conviction was however reversed by the High Court in suit No.KDH/Z/44/CA/90 which ordered a retrial, consequent upon which Respondents father sued the 1st Appellant at Area court I Samaru, which court dismissed the Respondents father’s case and entered judgment for the 1st Appellant.

Respondents father being dissatisfied again appealed to Kaduna State High which again remitted the case back to Upper Area Court (UAC) Zaria. The Respondents father died before the suit was determined and none of the parties went back to the court. However, the Respondent decided to destroy the Appellants crops.

The Respondents case was that the land in dispute belonged to their father who at one time had placed custody of same in trust to the Appellants father but had in 1984 in the presence of witnesses retrieved same from the Appellants father who honourably surrendered same. That the Respondents father had thereafter being in undisturbed possession of the land until his death in 2004 when Abdulkarim Jibril, the Respondent inherited the land, and took over possession and has been cultivating same.

That it was the case of the Respondents that at the re-trial of the case referred to by the Appellants in suit No. 240190 – Lawal Dikko and Abdulkarim Jibril, judgment was entered for them. They denied destroying the Appellants crops but maintained that the land belonged to their grandfather.

After hearing and considering all the evidence including the final submission of both counsel, the Lower Court in its considered judgment of 25/06/08 dismissed the Appellants claim holding that the Appellants failed to lead credible evidence to show that their grandfather first cleared the land, failed to prove the boundaries of the land and also failed to prove the destruction of the crops on the land.

Dissatisfied with the said judgment, the Appellants’ through their counsel P. K. Agbayinta Esq., filed a notice of appeal on 24/07/2008 dated 23/07/2008. The notice of appeal contains 5 grounds of appeal. The Appellants sought and was granted extension of time to file the Appellants brief of argument out of time. The Appellants’ brief of argument dated 8/2/2011 and filed on 18/3/2011 was deemed properly filed.

The said Appellants brief of argument was served on the Respondent on 13/3/12. By the failure of the Respondent to file the Respondents’ brief of argument, the Appellants’ counsel by a motion on notice filed on 9/4/13 sought and was granted an order of this Court directing and setting down the appeal for hearing based only on the Appellants’ brief of argument.

Thus, this appeal was heard only on the Appellants brief of argument.

Let me on the outset state that the failure of the Respondent to file any brief of argument though is tantamount to an admission by the Respondent of everything stated in the Appellants brief of argument, which is borne out of the record, the Appellant still has the duty to show that the judgment of the Lower Court which has favoured the Respondent, is wrong. See Unity Bank Plc vs. Bouari (2008) 7 NWLR (Pt.1086) 372.
This point was made clear by the Supreme Court that the failure of the Respondent to file Respondents brief of argument is immaterial. An Appellant must succeed or fail on his own brief. Although failure to file Respondents’ brief may amount to the Respondents being deemed to have admitted the truth of everything stated in the Appellants’ brief which is borne out of the record, the absence of the Respondents’ brief will not place the Appellants at an undue advantage. This is because the Respondent has already a judgment of the court below in his favour, and findings of a Lower Court are presumed to be correct until they are set aside and COP & Ors v. Omamukwue & Ors (1999) 2 NWLR (Pt.590), Per Ogbuagu JSC in John Ogbu & Anor vs. The State (2007) LPELR 2289 (SC).
Thus, the Appellants have to succeed on the strength of his brief.

In the Appellants’ brief settled by learned P. K. Agbayinta Esq. four(4) issues were raised for determination. The issues are:

“(1) Whether the learned trial Judge was right in dismissing the Appellant case when the Appellants have discharged the onus on them in civil matter which is proved by preponderance of evidence.
(2) Whether the learned trial Judge was right in dismissing the Appellants’ case when the Appellants have cogently proved the root of their title, which far out weighed the defendants’ evidence.
(3) Whether the learned trial Judge was right in dismissing the Appellant’ case on the ground that the boundaries of the land were not pleaded when same is not in dispute.
(4) Whether the learned trial Judge was right in dismissing the Appellants’ case premised on the ground that a particular witness was not called to give evidence when it was not in doubt that the Appllants’ crops were destroyed by the Respondents.”

I am of the view that two issues will determine this appeal. These issues are:

“(1) Whether the learned trial Judge properly evaluated the evidence placed before the court and was right in dismissing the Appellants’ claim.
(2) Whether the Appellants proved his entitlement to the damages claimed.”

ISSUE NO.I

Whether the learned trial Judge properly evaluated the evidence placed before the court and was right in dismissing the Appellants’ claim.

It was canvassed for the Appellants in the main that Civil suits are decided on balance of probabilities or preponderance of evidence and that the evidence adduced by the Appellants at the Lower Court by the PWs including PW1 of 78 years of age, show that the Appellants had been on the land for over 60 years before the institution of the matter and that the Appellants’ father was collecting tribute (Galla) from the Respondents’ father. That if the learned trial Judge had properly evaluated the evidence and placed the Appellants and Respondents evidence on the imaginary scale, he would have seen that the Appellants’ evidence outweigh, the Respondents’ incredible evidence that about 22 years ago, the Respondents went to the Appellant to reclaim the land in dispute allegedly given in trust to the Appellants by the Respondents’ father, which evidence was not plausible.

That the learned trial Judge ought to have found for the Appellants inspite of their failure to adduce evidence to support their pleadings that their grandfather was the first to clear the land, as the evidence by the Appellant was still stronger than that of the Respondents.

Further, it was contended that the Appellants in addition to the evidence of traditional history pleaded and adduced evidence of long possession which they could rely upon. He cited the case of OPUZUBAU VS KWOKWO (2002) NWLR PT 747 PG.116 at 134, PRAS B-F.

That the identity of the land not being an issue, the boundaries of the land needed not to be pleaded or proved. He cited the case of Alachenu vs. Oshoke (2002) 9 NWLR PT.773 pg.521, paras C-D.

The learned Appellants’ counsel has urged upon us to re-evaluate the evidence and to find for the Appellants.

What was the evidence placed before the court?

By their pleadings, the Appellants pleaded facts of traditional history of how they inherited the farmland in dispute from their father. However, they did not plead the boundaries of the land in dispute. On the failure of the Appellants and also the Respondents to plead the boundaries of the land in dispute the learned trial Judge at pages 126 – 127 of the record relying on Otua vs. Nteogwu-Ile (1996) 4 NWLR 480 among others, held, and rightly so that all evidence adduced by the witnesses in respect of the description of the boundaries went to no issue and was discountenanced.
However, the law is settled that where as in this case the identity of the land was not an issue at pleadings as same is well known to all parties, See Alechenu vs. Oshoke (2002) 9 NWLR (Pt.773) 521, or where as in this case the case has travelled to many courts over the same subject matter and also where an interlocutory injunction has been sought, it is presumed that the identity of the land is not an issue between the parties. See Anyanwu vs. Uzuwaka (2009) 7 SCNJ 29 at 36. The law does not require either the plaintiff or the defendant/counter-claimant to prove the identity of the land, which is well known to all the parties. See Nadi vs. Oseni (2003) 48 WRN 12, Adedeji vs. Oloso (2007) LPELR 86 (SC).
I therefore hold that Appellants were not required, to prove the identity of the land.

In the instant case, the Appellants pleaded that their grandfather was the founder of the land in dispute over 200 years ago by being the first to clear the land. He farmed on it until his demise. His son Dikko who was their father inherited the land and also farmed on the land and lived on it until his death about 20 years ago.

Upon his death, the Appellants who are his children, inherited the land and have continued farming on it as they were doing even before the demise of their father.

The witnesses who testified for the Appellants including PWs 1, and 2 who were aged 78 and 86 years respectively all testified that since their childhood they have seen the Appellants grandfather on the disputed land and have known him as the owner of the land. The evidence of PW4 was not different from those of PWs 1, and 2 and so was the evidence of PW1 and PW5 who are the 1st and 2nd Appellants respectively.

However none of the witnesses testified in support of the pleadings that it was the Appellants’ grandfather who first cleared the land.

Although PW2 maintained in cross-examination that he had never seen or heard any other person farming on the land, he stated inter alia thus:

“I don’t know who first cultivated the land.”

PW4 testified in cross-examination that:

“I do not know who originally owned the farmland…….I cannot precisely say who owns the land since I do not know who first cleared it.”

PW5 who is the 2nd Appellant stated inter alia in cross-examination that:

“Our father died 20 years ago. He inherited it from his father, Abdu whom I do not know how he got the land. Without Abdu having no title to the land our father cannot inherit the farm.”

With the evidence of PWs, 2, 3, 4 and 5 in cross-examination that they do not know who first cultivated the land, who first cleared the land, or who originally owned the land, the Appellants were unable to support their pleadings that their grandfather was the first person to clear the land. This condition of proving the founder of the land is a necessary condition precedent to the proof of title by traditional history. Where a party fails to prove any of these essential ingredients, as the learned trial Judge held, it would be fatal to the plaintiffs’ case. See DAGACI OF JERE vs. DAGACI OF EBWA (2006) 7 NWLR (Pt.979) 382.

The learned Appellants’ counsel has canvassed citing the case of Ezukwu vs. Ukachukwu (2004) 17 NWLR (Pt.902) 227 at 256 A – B, that a party is not bound to prove all averments in his pleadings in so far as he adduces enough evidence to sustain his claim and that although the Appellants did not adduce evidence to show the pleaded fact that their ancestor was the first to cultivate/clear the land, the Appellants case is still stronger than that of the Respondents and should be entitled to judgment.

I shall straight away not hesitate to disagree with this contention of the learned Appellants’ counsel for the following reasons;

“(1) In a claim of declaration of title to land, the plaintiff has to succeed on the strength of his case by adducing cogent and credible evidence. He cannot rely on the weakness of the defence’s case except where the defence’s case supports his case. See Nrumah vs. Ebuzeome & ors (supra).
(2) A party relying on traditional history to prove title to land succeeds only upon pleading and adducing credible evidence of the 3 fundamental conditions already set out in this judgment. Nrumah vs. Ebuzeome (supra).
(3) Where the defendants as in this case does not counter claim, he has no duty to prove anything and the entire burden of proof is squarely placed on the plaintiff who succeeds or fails on the strength or weakness of his case. Damra vs. Batagarawa (2002) 17 NWLR (Pt.796) 243”.

It was further canvassed for the Appellant citing Opuzibau vs. Kwokwo (2000) NWLR (Pt.747) 116 at 134 that where the evidence of traditional history fails, the plaintiff can rely on act of long possession.

ISSUE NO.2

Whether the Appellants proved his entitlement to the damages claimed.

It was contended for the Appellants that the Appellants proved their entitlement to the damages claimed arising from the destruction by the Respondents of the Appellants crops planted on the disputed land. The evidence for this, was essentially provided by PW5, who testified that he was so informed by his son Ali, that it was the Respondents who destroyed the crops. That he saw the Respondents destroying the crops when he climbed a tree.

As rightly found by the learned trial Judge that evidence offered by PW5 was hearsay evidence. His son who said he saw the Respondents destroying the crops was not called as a witness to testify to the court what he saw.

In the instant case, the only evidence the Appellants relied upon as proof of the destruction of their farm crops was the evidence of PW5 who did not himself see the destruction being carried out or done by the Respondents, but who relied on what his son told him. His son was not called as a witness. Clearly, the evidence of PW5 on that issue amounted to hearsay evidence which is not admissible in proof of the truth of what was stated. There was therefore no admissible evidence in support of the claim of damages predicated on the alleged destruction of the farm crops. Here also, I cannot find fault with the finding and the conclusion reached by the learned trial Judge that the Appellants did not prove their entitlement to the damages claimed.

This issue is also resolved against the Appellants.
The two issues having being resolved against the Appellant, this appeal must be dismissed as lacking in merit.
The judgment of the Lower Court is affirmed.
There shall be no order as to cost.

ABDU ABOKI, J.C.A.: I have the privilege of reading the draft judgment of my learned brother AMINA AUDI WAMBAI, JCA and I agree with her.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read the Judgment in draft of my learned Brother Amina Audi Wambai, JCA.

I am in agreement with the reasoning and decision reached. I also dismiss this appeal and affirm the judgment of the Lower Court.

Appearances

A. Y. Mohammed with B. A. AremuFor Appellant

AND

Respondent Absent, Unrepresented.For Respondent