YAKUBU SHWARBAKA v. SILAS GOFWAN
(2019)LCN/12586(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/J/214/2017
RATIO
APPEAL: WHETHER AN APEEAL IS TO INCLUDE FACTS/LAW
“Now, an issue for determination in an appeal is said to be a combination of facts and circumstances including the law applicable thereto which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal. Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155. The law is that an issue raised for determination in an appellate Court should be material; it must be such a proposition of law or fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court. Ugo Vs Obiekwe (1980) All NLR 566, Kalu Vs Odili (1992) 6 SCNJ 76, Ezekwesili Vs Agbapuonwu (2003) 9 NWLR (Pt 825) 337.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: WHERE THE DECISION OF A COURT IS PERVERSE
“In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse . Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564. A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable. Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.”PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
LAND LAW: PROVE OF TITLE TO LAND
“The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities. Akintola Vs Solano (1986) 2 NWLR (Pt 24) 298, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence ? Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Ali Vs Salihu (2011) 1 NWLR (Pt 1228) 227, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. This onus on the claimant is the same even where the claim for ownership of land is made by a counterclaim. Oronsaye Vs Osula(1976) 6 SC 21, Olusanmi Vs Oshasona (1992) 6 NWLR (Pt 245) 22, Balogun Vs Yusuff (2010) 9 NWLR (Pt 1200) 515, Obi Vs Onyemelukwe (2011) 1 NWLR (Pt 1228) 400.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
YAKUBU SHWARBAK’A
(Suing for himself and on behalf of Shwatse Family) Appellant(s)
AND
SILAS GOFWAN
(Suing for himself and on behalf of Bitmang Family) Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Plateau State delivered by Honorable Justice D. G. Mann in Suit No PLD/P1/2012 on the 18th of December, 2015.
The action in the lower Court was commenced by the Appellant and his claims were for (i) a declaration of entitlement to a customary right of occupancy over a portion of land situate at Per-Duk in Duk Village, Pankshin; (ii) an order of forfeiture of portion of the disputed land occupied by the Respondent; (iii) possession of the said land; and (iv) injunction to restrain trespass and/of further trespass into the land by the Respondent. Upon being served with the originating processes, the Respondent filed a statement of defence and counterclaim wherein he prayed for (i) a declaration that he, and the people he represents, were entitled to occupy, farm on and use the land in dispute in accordance with Ngas Native Law and (ii) an injunction restraining the Appellant from trespassing into the land.
The case of the Appellant on the pleadings was that his great grand-parent called Nde Shwatse migrated from Wokkos, in the present day Wokkos District in Pankshin Local Government Area, and settled at Dumok-Duk, Duk Village and whereat he founded several farmlands by deforestation, including a large parcel of farmland situate and lying in Per-Duk, and a small portion of which is in dispute in this case. It was his case that the land in dispute was bounded on the east by the land of Luka Audu and by a footpath that passes from Cocin Duk to Sohon Duk through a river that flows from the West to the North East of his own portion of land, on the north by his own portion of land which was originally cultivated, and later relinquished, by one Iliya Filbus, on the South by the land of one Chinme Adamu and on the west by a farmland cultivated by his nephew, Goyin Shwarka. It was his case that the portion of land in dispute had several economic and non-economic trees, about six graves Lengshak’a thereon and the houses of John G. Bitmang and Gongang and was being cultivated by John G. Bitmang, Gongang Lengshak’a and Emmanuel Bitmang.
It was case of the Appellant, that several years after the migration of Nde Shwatse from Wokkos to Duk and the founding of the several farmlands, including the large farmland in Per-Duk, Nde Bitmang, who was his friend and neighbor in Wokkos, joined him at Duk and Nde Shawtse granted Nde Bitmang the eastern portion of the large farmland at Per-Duk to farm upon and to sustain his family, and that under Ngas tradition, this made Nde Bitmang a customary tenant of Nde Shwatse on the said portion of land. It was his case that Nde Bitmang later left Dumok and resettled first at Kongkong and finally at Dukwat, along with his family and that while Nde Shawtse begat one son, Dukka, Nde Bitmang begat several children including Gofwan, Biskuk, Jingshak’a, Lengshak’a, Goshi, Dungyi’a and Emmanuel. It was his case that after the death of Nde Shawtse, his farmlands devolved on Dukka and Dukka begat two sons, Jan and Katdenn’a, and a daughter, Tongpadd’a and that upon the death of Dukka, Jan became the head of the family and he superintended over the farmlands founded by his progenitor.
It was the case of the Appellant that Jan begat three children, Shwarbak’a (also known as Shwarka), Golupwi and Danyilnwa while Katdenn’a begat two children, Wakgyida and Gaksamwa, and that upon the death of Jan, Shwarbak’a, being the eldest, became the head of family and he superintended over the farmlands founded by his progenitor. It was his case that Shwarbak’a begat many children namely, Yakubu (himself), Goyin, Sati, Bala, Monday, Musa, Ponangkat (also known as Jummai), Nabum, Chinmwa, Talatu and Laraba and that Golupwi begat Danjuma, Naghen, Asabe and Jummai and that descendants of Nde Shwatse constantly and consistently cultivated and farmed upon the farmlands. It was his case that notwithstanding the migration of Nde Bitmang to Dukwat with his family, his children and grandchildren were allowed to continue their customary tenancy on the portion of land in dispute and that at a point in time, one of the children, Gofwan, upon attaining old age, returned to live on the land in dispute and he died and was buried thereon.
The Appellant pleaded different acts of ownership his family carried out on their large parcel of land at Per-Duk, inclusive of the land in dispute and of how one Nde Gotan laid claim to part of the large farmland, including the area in dispute, and how the dispute was arbitrated by the then Village Head of Duk, Nde Golu Tongrum’a, and that Nde Gotan lost to Shwarbak’a and subsequently died the same year as a consequence of the traditional oath administered at the arbitration. It was his case that upon the death of Nde Gotan, his son Dangle harvested his late father?s crops on the land and commenced a fresh case against Shwarbak’a before the Council of Elders at Ner, in Pankshin Local Government and that the Council of Elders declined the case on the ground of the earlier arbitration carried out by the Village Head of Duk. It was his case that under Ngas native law and custom applicable to the people of Duk, customary tenants were allowed to build residential houses upon farmlands loaned to them so long as they obtained the permission of their overlords and that the payment of tributes was not a prerequisite or a requirement for loaning of farmlands.
It was the case of the Appellant that at a point in time, the Respondent, the Bitmang family, met and resolved to denounce their relationship with his Shwatse family and in consequence of which they wrote him a letter dated 1st of January, 2003 and he reported the matter to the Village Head of Duk who summoned a meeting of his traditional Council and of the parties and whereat the family of the Respondent admitted writing the letter, demanded autonomy and stated that they would no longer share anything with the Shwatse family and that they will no longer recognize them as their overlord in respect of the land in dispute. It was his case that while efforts were on to find a solution to the dispute, the family of the Respondent wrote another letter dated 13th of April, 2009, to the Village Head of Duk demanding for the creation of their own domain on the portion of land in dispute and that the attempt by the Village Head to resolve the matter was rebuffed. It was his case that the family of the Respondent was acting in concert with one Iliya Filibus, another customary tenant on another portion of their farmland and that, upon the denial of their over-lordship, he verbally notified both the Respondent’s family and Iliya Filibus to vacate the portions of land they occupied and this was followed up by a letter dated the 18th of November, 2010. It was his case that while Iliya Filibus vacated his own portion of land during the 2011 farming season, the family of the Respondent failed and refused to vacate the land in dispute and hence the commencement of this case.
The Respondent denied the entire case of the Appellant and stated that both the family of the Appellant and the family of the Respondent were descendants of a common progenitor called Gukwat, who migrated with his father from Dakup in Wokkos District to Bit-Duk and then moved further to Dumok-Duk to finally settle. It was his case that Gukwat deforested and cultivated several pieces of land, including the land in dispute at Per-Duk Village since time immemorial and that Gukwat begat two children, Nungshak and Shwatse, and while the family of the Respondent are of the lineage of Nungshak, the family of the Appellant are of the lineage of Shwatse and he thereafter drew the family trees of Nungshak and of Shwatse. It was his case that Gukwat shared his lands during his lifetime between his two sons and that the portion of land in dispute was the portion of land shared to Nungshak and that the land was not founded by Nde Shwatse and that boundaries of the land as described by the Appellant were incorrect.
It was his case that the land in dispute is triangular in shape and that it is bounded on the east by a stream which separates it from the farmlands of Dauda Golupwi and Samuel Dunshakka, on the south by the lands of Samuel Jan and Monday Audu, on the north by the lands of the Appellant and Goyin Shwarbak’a, the Appellant’s half brother, and on the west by the land of Chinme Adamu’s father which was leased to the current Galadima, Nde Paul Chamshakka.
It was the case of the Respondent that upon the sharing of the portions of land, the two different lineages have been cultivating their different portions of land and the family of the Respondent built several houses on their portion of land, even before 1960, and they have the grave yards of many of their dead relations on the land and that the land of Shwatse did not include the land in dispute and that his land merely shared boundary with the land on the north. It was his case that his family was never customary tenants of the family of the Appellant on the land in dispute and that the dispute between Nde Gotan and the Appellant was in respect of the portion of land Goyin Shwarbak’a presently cultivates and which is completely different from the land in dispute. It was his case that the whole portion of the land in dispute had always been occupied, cultivated and built upon by the members of his family from time immemorial and that they are the customary owners of the land in accordance with Ngas native law and custom, to exclusion of any other family in Per-Duk including the Appellant’s and that there was no controversy on this between their progenitors. It was their case that it was when the Appellant insisted that he was the Mai Angwa for both his family and the family of the Respondent that the family of the Respondent decided to have their own separate Mai Angwa and that this was done without any rancor and that at no time did the Appellant verbally notify the family of the Respondent to vacate the land in dispute and that the family of the Appellant has no legal right or interest in the land in dispute.
The matter was tried by the lower Court and in the course of which the Appellant called four witnesses and tendered three exhibits in proof of his case and the Respondent also called four witnesses in proof of his case. At the conclusion of trial, the lower Court visited the locus in quo on the application of the Appellant and after which the parties filed their respective written addresses. Sequel to the adoption of the written addresses, the lower Court delivered judgment wherein it dismissed the claims of the Appellant as lacking in merit and it granted the counterclaims of the Respondent. The Appellant was dissatisfied with the judgment and, sequel to an order of extension of time to appeal granted by this Court on the 2nd of May, 2017, he caused his Counsel to file a notice of appeal dated the 4th of May, 2017 against it and the notice of appeal contained eight grounds of appeal against the dismissal of his claims and two grounds of appeal, including the omnibus ground, against the grant of the counterclaim.
In arguing the appeal before this Court, Counsel to the Appellant filed an amended brief of arguments dated the 6th of June, 2018 on the 12th of June, 2018 and the amended brief of arguments was deemed properly filed and served by the Court on the 12th of June, 2018. Counsel to the Respondent filed an amended brief of arguments dated the 4th October, 2018 and filed on the same date in response. Counsel to the Appellant filed a reply brief of arguments dated the 30th of October, 2018 on the same date and the reply brief of arguments was deemed properly filed and served by the Court on the 8th of November, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal.
Counsel to the Appellant distilled six issues for determination in the appeal and these are:
i. Whether the learned trial Judge was right when he held that the oral evidence given in a witness box upon oath or affirmation administered in accordance with the Oath Act or Law can cure the lacuna in the swearing of affidavit before a wrong person as provided in Sections 102 and 205 of the Evidence Act.
ii. Whether the learned trial Judge properly evaluated the traditional evidence vis-a-vis the pleadings of the parties before him in arriving at his findings.
iii. Whether the learned trial Judge was right when he held that facts admitted need to be proved.
iv. Whether the learned trial Judge was right when he replaced the evidence of parties with the opinion of learned authors and reasons that did not form part of the case of any of the parties before him.
v. Whether the learned trial Judge was right when he relied on contradictory evidence in arriving at his findings on the counterclaim.
vi. Whether, having regards to the evidence placed by the Respondent before the lower Court, he was entitled to judgment in his favour on the counterclaim.
In arguing the first issue for determination, Counsel to the Appellant referred to Section 112 of the Evidence Act and emphasized the words of the provision that ‘an affidavit shall not be admitted which is proven to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner and he referred to the cases of Bakare Vs Attorney General of the Federation (1990) 5 NWLR (Pt 152) 516, Ugwu Vs Ararume (2007) NWLR (Pt 1048) 365 and Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423 on the import of the use of the word ‘shall’ in a statutory provision. Counsel reproduced the evidence of the second defence witness under cross examination that he and the other defence witnesses signed their written statements in the chambers of their lawyer before they came to Court and that after signing them, their lawyer took them to Court and filed them and stated that the action of the defence witnesses was in clear violation of the provision of Section 112 of the Evidence Act and that therefore the lower Court ought to have struck out the written statements of the witnesses and not placed any reliance on them.
Counsel referred to the provision of Section 205 of the Evidence Act that all oral evidence in any proceeding must be upon oath or affirmation administered with the Oaths Act or Law and stated that the provision regulates the giving of oral evidence at trial, and does not apply to evidence or affidavit sworn before a Commissioner for Oaths. Counsel stated that the trend in the new Rules of Court is that witnesses in a matter shall depose to their statements on oath before a Commissioner for Oaths as a condition precedent to the witness entering into the witness box at trial to testify and that it is in the witness box that the witness will be required to fulfill the provision of Section 205 of the Evidence Act and that as such non-compliance with the provision of Section 112 of the Evidence Act cannot be cured by compliance with Section 205 of the Act. Counsel stated that by placing reliance on the written statements of the defence witnesses, the lower Court, in essence, relied on inadmissible evidence in making its findings and that this has been frowned upon by the Supreme Court and he referred to the cases of Abubakar Vs Joseph (2008) 13 NWLR (Pt 1104) 307 and IBWA Vs Imano Ltd (2001) 3 SCNJ 160. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant and to strike out the written statements of the defence witnesses accordingly.
On the second issue for determination, Counsel referred to the cases of Arowolo Vs Olowookere (2011) 11-12 SC (Pt II) 98 and Nwawuba Vs Eremuo (1988) 5 SC 237 on the admissibility and veracity of traditional evidence especially in land cases and he also referred to the evidence led by one of the plaintiff witnesses, a Michael Shemshak, the Village Head of Duk Village, in favour of the ownership of the land in dispute by the Appellant and stated that the lower Court completely ignored the testimony of the witness in its evaluation of evidence. Counsel stated that the lower Court also showed a misunderstanding of the case of the Appellant when it referred to the transaction that took place between Nde Shwatse and Nde Bitmang as a loan transaction of land rather than as a customary tenancy based on cordiality. Counsel stated that the alleged contradictions that the lower Court found to exist between the evidence of the Appellant, as the first plaintiff witness, and the averments on the pleadings were misconceptions as no such contradiction existed and he proceeded to refer to the evidence of the witness vis–vis the averments in the pleadings. Counsel stated that the lower Court hinged part of his findings in the judgment on an isolated paragraph of the statement of claim, i.e. paragraph 12 thereof, and failed to consider the case of the Appellant on the pleadings holistically and thereby fell into error in its evaluation of the evidence led by the plaintiff witnesses.
Counsel referred to the case of Idundun Vs Okumagba (1976) 9-10 SC 277 on the five ways of proving title to land and the case of Jagaba Vs Umar (2016) LPELR 40466(CA) on the requirements for reliance on traditional evidence as mode of proof of ownership of land and stated that the Appellant led evidence to satisfy the requirements and even went further to lead evidence on acts of possession and ownership exercised on the land in dispute and which evidence was not controverted or contradicted, and that the lower Court ought to have acted thereon and he referred to the case of Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt 966) 205. Counsel stated that in further proof of his ownership of the land in dispute, the Appellant led evidence of the ownership of the parcels of land connected and adjacent to the land in dispute and that this strengthened the Appellant’s claim of ownership of the land in dispute and he referred to the case of Juwul Vs Dimlong (2002) FWLR (Pt 11) 481. Counsel stated that reliance on only one of the modes of proving ownership was sufficient to sustain the Appellant’s claim and he urged the Court to resolve the second issue for determination in favor of the Appellant.
In arguing the third issue for determination, Counsel referred to the averments contained in paragraph 34 of the statement of claim of the Appellant on the Ngas Native Law and Custom on customary tenancy and the affirmation of the averment in the witness statement on oath of the first plaintiff witness and stated that the averment was not contradicted or controverted and that the Respondent did not lead any contrary evidence thereon and that this amounted to an admission of the facts contained in the averment. Counsel referred to the cases of Ajibade Vs The State (2012) LPELR 15531(SC) and Baalo Vs Federal Republic of Nigeria (2016) LPELR 40500(SC), amongst others, in reiteration of the established principle that facts admitted need no further proof and stated that the lower Court acted contrary to this principle by requiring the Appellant to prove the facts contained in the averment in paragraph 34 of the statement of claim and by finding that the Appellant failed to lead evidence in proof thereof. Counsel prayed the Court to resolve the third issue for determination in favour of the Appellant.
With regards to the fourth issue for determination, Counsel stated that it was obvious from the judgment that the lower Court relied on reasons which did not form part of the case of either party in making its findings and that this raises the question of whether the judgment qualifies as a good judgment. Counsel referred to the case of Gbadamosi Vs Dairo (2007) 3 NWLR (Pt 1021) 282 in asserting the essential features of a good judgment to include the essential facts of the case of each party, the evidence led in support and the conclusion or inference drawn from the facts and law and he stated that a judgment will be set aside if one or more of the elements of a good judgment is missing and this results in total miscarriage of justice and he referred to the cases of A.G Federation Vs Abubakar (2007) 10 NWLR (Pt 1041) 77 and UAC (Nig) Pc Vs Akinyele (2012) 15 NWLR (Pt 1322) 28. Counsel stated that the reliance placed by the lower Court on reasons outside the respective cases of the parties in making its finding was sufficient cause for this Court to resolve the issue for determination in favour of the Appellant.
Counsel stated further that the lower Court also relied on the opinions of learned authors in making its findings and that this occasioned great injustice to the Appellant as the lower Court did not comply with the legal requirement for placing such reliance on the opinions of the authors. Counsel reproduced a portion of the judgment where he said that the lower Court relied on the opinions of Professor Taslim Elias and Professor B. O. Nwabueze and stated that the lower Court neglected and failed to consider the facts and evidence placed before it by the parties and supplanted them with the opinions of authors who were not recognized or adopted by the Ngas people as authority binding on the indigenous people of Duk Village and who have no special knowledge of the customary law of Duk people. Counsel referred to the provisions of Section 67, 68 and 70 of the Evidence Act and stated that it is only persons specially skilled in an area of dispute, and in the instance case, the customary law of the Duk people, that qualify as experts and that the Respondent did not lead any evidence to show that Professor Taslim Elias and Professor B. O. Nwabueze were specially skilled in the customary law of Duk people and that as such there was no basis for the reliance placed on their opinion by the lower Court and he referred to the cases of Okereke Vs Umahi (2016) 2-3 SC (Pt. 1) 1 and Egujo Vs State (2016) LPELR 40938(CA). Counsel urged the Court to reject the reliance placed by the lower Court on the opinions of Professor Taslim Elias and Professor B. O. Nwabueze and to resolve the fourth issue for determination in favour of the Appellant.
On the fifth issue for determination, Counsel stated that, in making his case, the Respondent averred on the pleadings that his progenitor Gukwat begat two children, Nungshak and Shwatse, but that the second defence witness gave evidence that Gukwat begat three children, Nungshak, Munvella and Shwatse, and there was thus a contradiction between the pleadings and the evidence led by the Respondent and that the lower Court ought to have, on this basis, rejected the case of the Respondent and he referred to the cases of Ude Vs Nwara (1993) 2 NWLR (Pt 278) 638 and Onafowokan Vs State (1987) 3 NWLR (Pt 61) 538. Counsel stated that a trial Court is not allowed to pick and choose between two contradictory pieces of evidence and this was what the lower Court did in the present case and that this was wrongful and he referred to the case of Eyo Vs Onuoha (2011) 2-3 SC (Pt 1) 220.
Counsel stated that, further, the Respondent did not capture himself in the genealogical tree that he pleaded and as such his alleged root of title cannot stand. Counsel urged the Court to resolve the fifth issue for determination in favor of the Appellant.
In arguing the sixth issue for determination, Counsel stated that a counterclaim is the claim of a defendant and that the onus of proof thereon on the defendant is the same as the onus of proof on a claimant in the main claim and he referred to the cases ofEsoho Vs Asuquo (2007) All FWLR (Pt 359) 1355 and Odoakpu Community Bank Nig Ltd Vs Ibeto & Co., Ltd (2007) ALL FWLR (Pt 350) 1409. Counsel stated that the Respondent thus had the onus of proving his entitlement to the claims on the counterclaim by relying on one of the five recognized ways of proving title to land and that the Respondent relied on proof by traditional evidence and the evidence on which was riddled by contradictions. Counsel stated further that the Respondent did not plead the name of Gukwat, his progenitor, and did not link himself to the progenitor in the genealogical tree pleaded and that in the circumstances the proper verdict that ought to have been reached by the lower Court was that the Respondent failed to discharge the burden of proof on him to sustain his claims on the counterclaim and he referred to the case of Ogbuokwelu Vs Umeanafunkwa (1994) 5 SCNJ 24. Counsel urged the Court to resolve the sixth issue for determination in favor of the Appellant.
Counsel concluded his arguments by praying the Court to find merit in the appeal, set aside the judgment of the lower Court and enter judgment in favour of the Appellant in respect of his claims before the lower Court.
In his response, Counsel to the Respondent distilled five issues for determination in the appeal and these are:
i. Whether the learned trial Judge was justified in using and relying on the witness statements on oath deposed to by all the defence witnesses.
ii. Whether the learned trial Judge was wrong in considering the opinion of legal experts on land law in the determination of the case.
iii. Whether facts admitted requires no proof in a declaratory case.
iv. Whether the learned trial Judge properly evaluated the traditional evidence vis–vis the pleadings of the parties before him in arriving at his findings.
v. Whether the Respondent established his counterclaim.
In arguing the first issue for determination, learned senior Counsel to the Respondent stated that, contrary to the contention of Counsel to the Appellant, there was no evidence that the witness statements on oath of the defence witnesses were sworn before a wrong person and that what the Counsel to the Appellant did was to rely on what was contained in his notes rather than on the contents of the records of the Court, and that this is wrong as the notes of Counsel cannot substitute for the records of the Court and he referred to the cases of Chineke Vs Nigerian Airways (1988) 3 NWLR (Pt 81) 251 and Okonkwo Vs State (1998) 8 NWLR (Pt 561) 210. Counsel reproduced the relevant portion of the evidence of the second defence witness and stated that the witness testified that the witnesses signed the written statement in the Counsel?s Chambers and then went to Court with the lawyer to file the documents. Counsel stated that the written depositions showed on their faces that they were duly sworn before Commissioner for Oaths and they each carry the signature and seal of the Commissioner for Oaths as well as the assessment and receipt number evidencing their filing and that this raises a presumption of genuineness in favour of the documents and he referred to the cases ofAgusiobo Vs Onyekwelu (2003) 14 NWLR (Pt 839) 34 and ASTC Vs Quorum Consortium Ltd (2004) 1 NWLR (Pt 855) 601.
Counsel stated that oral evidence, in this case, the evidence of the second defence witness under cross examination, is not allowed to contradict documentary evidence and cannot thus contradict the contents of the witness statements on oath and he referred to Section 128 of the Evidence Act. Counsel stated that it is not in every instance where the word ‘shall’ is used in a statute, as in Sections 112 and 205 of the Evidence Act, that it connotes a mandatory imperative and he referred to the case of Agusiobo Vs Onyekwelu (2003) 14 NWLR (Pt 839) 34. Counsel stated that on receipt of the statement on oath of the defence witnesses, the Appellant filed a defence to counterclaim with further written statements on oath and that when the witnesses adopted their written statements in the course of trial, they were extensively cross examined by Counsel to the Appellant. Counsel stated that the oath taking done by the defence witnesses before the trial Court and the adoption of the written depositions as their oral evidence knocked the bottom off the contention of the Appellant and cured whatever defect or irregularity was in the written statements and he referred to the cases of Uduma Vs Arunsi (2012) 7 NWLR (Pt 1298) 55 and Udeagha Vs Omegara (2010) 11 NWLR (Pt 1204) 168. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.
On the second issue for determination, learned senior Counsel stated that contrary to the suggestion of the Counsel to the Appellant, the lower Court did not use the opinions of the learned authors to decide the customary law of the Duk people, but rather it relied on the opinions in determining the veracity of the Appellant’s claim that his ancestors loaned the land in dispute to the ancestors of the Respondent to cultivate food without witnesses, a claim that the Respondent denied. Counsel stated that it was the contentions of the Respondent that if indeed the land was loaned, it could not have been done in secrecy without any witnesses and that if the land was loaned for the cultivation of food, it is usually for a brief period, and not for eternity and that it was on these contentions that the Respondent relied on the opinion of Professor Elias in his book ‘Nigerian Land Law’ 4th Ed. and the opinion of Professor B. O. Nwabueze in his book also titled ‘Nigerian Land Law’. Counsel stated that it was in resolving the contentions of the parties on these issues that the lower Court relied on the opinions of the two authors and he reproduced to the findings of the lower Court on the contentions and stated that the findings of the lower Court were in no way related to the Ngas or Duk people’s custom.
Counsel referred to and reproduced the provisions of Sections 122 (3) and (4) and 152 of the Evidence Act and stated that they empower a Court to consider the opinions of experts and relevant books in related matters calling for adjudication before it and that this was what the lower Court did in the instant case and he referred to the cases of Orugbo Vs Una (2002) 6 NWLR (Pt 792) 175 and Usiobaifo Vs Usiobaifo (2005) 3 NWLR (Pt 913) 665. Counsel stated that the Supreme Court has given approval to the use of foreign decisions and books in consideration of cases in our Courts, talk less of indigenous renowned authors on customary land law and he referred to the case of Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2018) 9 NWLR (Pt 1623) 138. Counsel urged the Court to resolve the second issue for determination in favour of the Respondent.
With regards to the third issue for determination, Counsel stated that the contention of Counsel to the Appellant on the issue was not well founded because in a case seeking declaratory relief, as in the instant case, the doctrine of admission of pleadings is inapplicable and he referred to the cases of Bello Vs Eweka (1981) 12 NSCC 48, Motunwase Vs Sorungbe (1988) 5 NWLR (Pt 92) 90 and Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 519. Counsel stated further that there was indeed no admission of the averments contained in paragraph 34 of the statement of claim of the Appellant on the Ngas Native Law and Custom on customary tenancy by the Respondent and he proceeded to reproduce portions of the statement of defence and stated that taking a holistic look at the averments in the statement of defence, there cannot be said to be any such admission and he referred to the cases of Titiloye Vs Olupo supra and Adegboyega Vs Awe (1993) 3 NWLR (Pt 280) 224. Counsel urged the Court to resolve the third issue for determination in favour of the Respondent.
In arguing the fourth issue for determination, Counsel stated that it was incorrect that the lower Court did not evaluate or properly evaluate the evidence led by the Appellant in proof of his case in making its findings and that it was the Appellant that hinged his case on the pleadings on the allegation that his progenitor loaned the land in dispute to the progenitor of the Respondent. Counsel thereafter traversed through the pleadings of the parties on the ownership of the land in dispute and noted that the onus was on the Appellant to adduce admissible evidence to substantiate the allegations in support of his claims and stated that while the evidence of the first plaintiff witness on the loaning of the land by the progenitor of the Appellant to the progenitor of the Respondent was on the general custom of Ngas people, and not specific on the transaction in question, the evidence of the third plaintiff witness thereon was vague and confusing and it was not tied or directed to the land in dispute. Counsel stated that additionally the third plaintiff witness and his father had no biological link with the Appellant and that it was thus incumbent on the third plaintiff witness to state the source of his knowledge of the evidence he led, but that the witness failed to do so and that this rendered his evidence unreliable and he referred to the provisions of Section 115 of the Evidence Act and the cases of Cedar Stationeries Ltd Vs IBWA Ltd (2000) 15 NWLR (Pt 690) 338, Abiodun Vs CJ Kwara State (2007) 18 NWLR (Pt 1065) 109.
Counsel reiterated the arguments he canvassed before the lower Court on the failure of the Appellant to lead evidence of the people that witnessed the alleged loan of land in dispute by his progenitor to the progenitor of the Respondent and on the incredulity of the case of the Appellant that the land was loaned for cultivation of food in view of the fact that the family of the members of the Respondent had built up houses, burial grounds and economic trees on the land since before 1960 and he referred to the opinions of Professor Elias and of Professor B. O. Nwabueze in their respective books titled ‘Nigerian Land Law’. Counsel stated that the Appellant and the third plaintiff witness gave contradictory evidence on which of the progenitors of the Appellant made the alleged loan of the land in dispute to the progenitor of the Respondent and that the first plaintiff witness gave contradictory evidence and evidence which was at variance with the pleadings on who was entitled to harvest economic trees on the land and that these rendered the evidence of the witnesses untenable and he referred to the cases of Olufosoye Vs Fakorede (1993) 1 NWLR (Pt 272) 747 and Akpan Vs Udoetuk (1993) 3 NWLR (Pt 279) 94.
Counsel stated that the Appellant also failed to lead any evidence to substantiate the assertion that the members of the family of the Respondent sought for and obtained their permission before building houses on the land in dispute, in accordance with the Ngas native law and custom, and neither did they lead evidence on what happened to the land when they alleged that the progenitor of the Respondent relocated from Duk Village.
Counsel stated that, in the light of all the above mentioned deficiencies in the case of the Appellant, the lower Court was correct when it found that the Appellant did not make out a credible case to sustain his claims and that all the Appellant has done in this appeal is to castigate the lower Court without justification. Counsel urged the Court to resolve the fourth issue for determination in favour of the Respondent.
On the fifth issue for determination, Counsel stated that it was incorrect that there was any contradiction between the case of the Respondent on the pleadings on the descendants of his progenitor Gukwat and the evidence led in support thereof and that while the case on the pleadings was that Gukwat shared his land between his two sons, Nungshak and Shwatse, the evidence led was that Gukwat begat three children, Nungshak, Munvella and Shwatse. Counsel stated that there is a difference between sharing of land to two sons and number of children begotten because the word ‘children’ include sons and daughters, and it is not restricted to only sons. Counsel stated that it was also incorrect that the Respondent did not link himself to the family tree pleaded in the matter and this is because the original defendant in the matter was one John G. Bitmang and that, upon the death of John Bitmang, it was Appellant that by an application filed on the 21st of February, 2014 sought to substitute the Respondent as the defendant. Counsel stated that in the affidavit in support of the application, the Appellant deposed that his family decided to substitute Respondent ‘who is a direct descendant of the Bitmang Family who can inherit the deceased by virtue of Ngas custom’ and that it was on this basis that the lower Court granted the application. Counsel stated that there was unchallenged evidence before the lower Court that the grandfather of the Respondent was Gofwan, mentioned in the family tree, and it is thus strange that the Appellant will seek to now impugn the right of the Respondent to defend and counterclaim in the matter.
Counsel thereafter reproduced the counterclaims of the Respondent and traversed through the averments in support of the counterclaim in the statement of defence and counterclaim and stated that the Respondent led unchallenged evidence to identify the boundaries of the portion of land claimed in the counterclaim and thus led clear evidence on the land claimed and he referred to the cases of Amadi Vs Nwosu (1992) 5 NWLR (Pt 241) 273 and Adegbo Vs Ogbanje (2014) 10 NWLR (Pt. 1416) 541. Counsel stated that the Respondent further pleaded three out of the five recognized modes of proving title to land, namely, evidence of traditional history, acts of ownership exercised on the land and acts of long possession, and also led cogent unchallenged evidence to prove the three modes of ownership of the land in dispute and that the law is that one mode is sufficient to ground a claim of ownership of land and he referred to the case ofOnovo Vs Mba (2014) 14 NWLR (Pt. 1427) 391. Counsel stated that the lower Court was thus correct when it found that the Respondent made out a credible case to sustain the counterclaim and he urged the Court to resolve the fifth issue for determination in favor of the Respondent.
Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and uphold the judgment of the lower Court.
Now, an issue for determination in an appeal is said to be a combination of facts and circumstances including the law applicable thereto which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal. Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155. The law is that an issue raised for determination in an appellate Court should be material; it must be such a proposition of law or fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court. Ugo Vs Obiekwe (1980) All NLR 566, Kalu Vs Odili (1992) 6 SCNJ 76, Ezekwesili Vs Agbapuonwu (2003) 9 NWLR (Pt 825) 337.
It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. The acid test is whether the legal consequences of that ground or fact as framed, if decided in favour of the appellant, will result in a verdict in his favour. Ibori Vs Agbi (2004) 6 NWLR (Pt. 868) 78. An issue that is not necessary for determination, or which even if determined in favour of a party, may not end the controversy ought not to be formulated for determination on appeal for it may serve no purpose even if the complaint is upheld in favour of the appellant ? Ehimare Vs Emhonyon (1985) 2 SC 49. When the determination of an issue in favour of the party who raised it will not affect the result of an appeal, the issue is of no value ? Okereke Vs Nwankwo (2003) 9 NWLR (Pt. 826) 592.
The first issue formulated by Counsel to both parties in this appeal is whether the lower Court was correct when it overruled the complaint of the Counsel to the Appellant on the use of the written statements on oath of the defence witnesses, and placed reliance on the said written statements. A read through the judgment shows that the contents of the written statements of the defence witnesses were not the basis upon which the lower Court dismissed the claims of the Appellant. Secondly, the complaint of the Counsel to the Appellant to the use of the written statements was predicated on the testimony of the second defence witness under cross examination that he and other witnesses signed their witness statements in the Chambers of their lawyer and that their lawyer thereafter took them to Court and filed them.
A look at the said written statements show that they carried on their faces the fact that they were sworn before the Commissioner for Oaths in the Registry of the High Court and that while the written statement of the first defence witness was sworn on the 2nd of October, 2013, those of the second to the fourth defence witnesses were sworn on the 26th of March, 2012, after they were read and explained to them in Ngas language by the Respondent. The entries on the face of the written statements on oath of the defence witnesses raise the presumption of regularity provided in Section 168 (1) of the Evidence Act in their favour and the onus was on the Appellant to lead cogent evidence to rebut the presumption. A read through the records of appeal show that the first, third and fourth defence witnesses did not say, in any part of their evidence, that they signed their written statements in the Chambers of the lawyer and the third defence witness stated specifically, when adopting his written statement on oath, that he signed same at the High Court Registry in Pankshin on the 26th of March, 2012.
The statement of the second defence witness about the signing of the witness statements in the Chambers of the lawyer can, in the circumstances, only constitute credible evidence to rebut the presumption of regularity in favour of his own witness statement on oath, and not those of the other defence witnesses. A read through the witness statements of the four defence witnesses show that their contents are basically the same and that as such the striking out of the witness statement of the second defence witness will not, and does not, derogate from the case of the Respondent in any way and it only means one less witness stating the same thing. Thus, the resolution of the first issue for determination formulated by both parties in favour of the Appellant will not in any way affect the outcome of this appeal. The issue for determination is thus of no value in this appeal.
Reading through the records of appeal, particularly the judgment of the lower Court and the notice of appeal, as well as the arguments contained in the respective briefs of arguments of the Counsel to the parties, it is the view of this Court that there are indeed only two issues for determination in this appeal. These are:
i. Whether, on the pleadings and the evidence led by the parties in this matter, the lower Court was correct when it found that the Appellant failed to make out a credible case in prove of his claims and dismissed same.
ii. Whether, on the pleadings and the evidence led by the parties in this matter, the lower Court was correct when it found that the Respondent made out credible case to sustain his claims on the counterclaim.
This appeal will be resolved on the two issues for determination and all the arguments of the Counsel to the parties in the appeal will be considered there under.
There were two claims of ownership of land before the lower Court, the Appellant’s claim and the Respondent’s counterclaim. The task before the lower Court in this matter was to determine who between the Appellant and the Respondent led better evidence on the ownership of the land in dispute. Arase Vs Arase (1981) 5 SC 33 at 35 and Davies Vs Ajibona (1994) 5 NWLR (Pt 343) 234 at 258F, Nteogwuija Vs Ikuru (1998) 10 NWLR (Pt 569) 267. Where there are two claimants to a parcel of land, declaration of ownership is made in favour of the party that proves better title. Adole Vs Gwar (2008) 11 NWLR (Pt 1099) 562. It is settled law that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party?s case will not help him and the proper judgment is for the other party. Lawal Vs Akande (2009) 2 NWLR (Pt 1126) 425, Chukwu Vs Amadi (2009) 3 NWLR (Pt 1127) 56, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559.
The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities. Akintola Vs Solano (1986) 2 NWLR (Pt 24) 298, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence ? Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Ali Vs Salihu (2011) 1 NWLR (Pt 1228) 227, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. This onus on the claimant is the same even where the claim for ownership of land is made by a counterclaim. Oronsaye Vs Osula(1976) 6 SC 21, Olusanmi Vs Oshasona (1992) 6 NWLR (Pt 245) 22, Balogun Vs Yusuff (2010) 9 NWLR (Pt 1200) 515, Obi Vs Onyemelukwe (2011) 1 NWLR (Pt 1228) 400.
The complaint of the Appellant with respect to the dismissal of his claims by the lower Court was on the evaluation of the respective cases of the parties carried out by the lower Court. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation. Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt 1256) 574, Nacenn Nigeria Ltd Vs Bewac Automative Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1.
In dismissing the claims of the Appellant, the lower Court stated in the judgment thus:
it is necessary to bear in mind the fact that the plaintiff”s claims for forfeiture, possession and perpetual injunction are all hinged on the declaratory relief claimed by him. The declaratory relief being the lynchpin, the onus is on the plaintiff to adduce evidence in proof thereof.
Let me begin the question whether the plaintiff established his allegation that his grandparent, Nde Shwatse, loaned the land in dispute to Nde Bitmang to cultivate and feed his family upon his marriage. It is the contention of the learned senior Counsel for the defendant that the foundation of the plaintiff’s claim is hinged on the alleged loan. It behooved on the plaintiff to adduce evidence to prove the loan. Nonetheless, the starting point is to examine the pleadings on the issue as a first step in order to determine if it is adequate.
Learned senior counsel for the defendant contends ? that considering the averments in paragraphs 6 and 13 of the statement of claim to the effect that Nde Shwatse met other people when he arrived at Duk and both he and Nde Bitmang had children, the plaintiff ought to have pleaded or stated who witnessed the loan transaction. Speaking for myself, I have found it utterly strange and out of tune with reality the plaintiff’s case that the loan transaction between Nde Shwatse and Nde Bitmang, whom the plaintiff has claimed were not blood relations, was not witnessed by anyone. I must confess that this transaction was a most unusual one. By that as it may, that is the case formulated by the plaintiff as to what transpired during the transaction.
The plaintiff has claimed in his pleadings that the land in dispute was loaned to Nde Bitmang to enable him cultivate food to feed his new family. Learned senior counsel has referred me to Elias in his book Nigerian Land Law ‘ and to Professor B. O. Nwabueze ‘his book Nigerian Land Law, where the learned authors have opined that under normal circumstances, a land loaned for purposes of farming, as in the instance case, is usually for a short period to enable the person who borrowed the land to allow his personal farm to lie fallow for sometime. I accept the opinion of these learned authors and I find that it is doubtful if Nde Shwatse granted a loan to Nde Bitmang. Otherwise, how did a loan to Nde Bitmang who was newly married to enable him cultivate the land and feed his family, metamorphose into a grant in perpetuity.
At any rate, the plaintiff brought PW3 Luka Audu who testified under cross examination, contrary to the averment in paragraph 10 of the statement of claim, that his father told him that Shwarbak’a was the person who gave the land in dispute to Bitmang although he does not know who was present during the transaction. This piece of evidence, I believe directly conflicts with both the pleadings and evidence adduced by the plaintiff.
The lower Court continued its deliberations on the case of the Appellant thus:
Another point of contradiction in the evidence given by the plaintiff is as to who had the right to harvest the fruits of economic trees on the land loaned to Nde Bitmang. In paragraph 44 of the statement of claim, it is averred that the plaintiff will lead evidence to show that a tenant harvests and enjoys economic trees planted or nurtured on the land during the tenancy. The plaintiff ? however testified that while Bitmang was in occupation of the land, Shwatse always harvested the economic trees to the exclusion of Bitmang.
PW1 added to the confusion when he testified in-chief at paragraph 9 of his witness statement on oath that the tenant always reaped and enjoyed the economic trees and yet in paragraph 10 states that the overlord/owner of the land always harvested and enjoyed the economic trees to the extreme exclusion of the tenant.
It is difficult for me, in view of the conflicting evidence highlighted above to pick and choose which evidence to believe.
Again, the plaintiff in paragraph 34 of the statement of claim averred that under Ngas native law and custom of Duk people, a tenant is allowed to build dwelling houses on the lands they occupy provided the prospective occupant/tenant obtains the prior consent of the land owner without selling it. That means, the defendant’s family members who built on the land as far back as 1960 must have obtained the consent of the Shwatses, but no such evidence was forthcoming from the plaintiff.
In addition to the foregoing, there is evidence that Bitmang left Shwatse at Dumok and moved to Kongkong and finally Dukwat with all his family. See paragraph 12 of the statement of claim. The nagging question is why did Shwatse or Shwarbak’a not retrieve the land from Bitmang/on this ground too, the loan of the disputed land given to Bitmang could not be true.
It was on the bases of these findings that the lower Court found that the Appellant did not make out a case to sustain his claims.
Now, it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. It is the law that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.
In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse . Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564. A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable. Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.
Counsel to the Appellant stated that the lower Court completely disregarded the case of the Appellant on the pleadings and misconstrued the facts of their case by restricting its consideration of the case to that of a loan transaction of land for farming purposes between Nde Shwatse and Nde Bitmang, when the case of the Appellant was that there existed a customary tenancy arrangement between his family and the family of the Respondent in respect of the land in dispute. Counsel complained that this was what ran through the entire evaluation of evidence carried out by the lower Court and that this was why the lower Court relied on the opinions of learned authors to nullify Ngas native law and custom pleaded and led in evidence by them and that the lower Court failed to consider and evaluate the evidence of Ngas native law and custom led by the Appellant?s witnesses. Counsel stated that it was obvious that the lower Court failed to take a holistic look at their case and thus saw contradictions where none existed and thereby came to a perverse decision.
The starting point for the consideration of the complaints of the Counsel to the Appellant is, and must be, the pleadings of the Appellant. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.
It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party. Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1, Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142, Nigeria National Petroleum Corporation Vs Idi Zaria (2014) LPELR-22362(CA). Reading through the pleadings of the Appellant as a whole, it is correct that he predicated his case on the existence of a customary tenancy between his family and the family of the
Respondent over the land in dispute, and not on a loan transaction of land.
After pleading the founding of the several farmlands, including the large farmland in Per-Duk by their progenitor, Nde Shwatse, it was his case that Nde Shawtse granted Nde Bitmang the eastern portion of the large farmland at Per-Duk to farm upon and to sustain his family, and that under Ngas tradition, this made Nde Bitmang a customary tenant of Nde Shwatse on the said portion of land and that it was not necessary under Ngas tradition for the customary tenancy to be witnessed by people. It was his case that it was by reason of the existence of such customary tenancy that his family allowed the children and descendants of Nde Bitmang to continue using the land after Nde Bitmang migrated from Duk to Dukwat and eventually settled at Morkom, and even after the death of Nde Bitmang. It was his case that under Ngas native law and custom applicable to the people of Duk, customary tenants were allowed to build residential houses upon farmlands loaned to them so long as they obtained the permission of their overlords and that the payment of tributes was not a prerequisite or a requirement for loaning of farmlands, and thus that the fact that the family of the Respondent had buildings and grave yards on the land and were not paying tributes to the Appellant for use of the land were immaterial.
Reading the above excerpts of the judgment of the lower Court on its deliberations on the case of the Appellant vis–vis the case of the Appellant on the pleadings, it is clear that the lower Court lost sight of the holistic case presented by the Appellant on the pleadings and it rather focused on isolated averments in the statement of claim in making its findings. The lower Court treated the case of the Appellant on the pleadings as one of an alleged loan transaction of land, rather than a case of customary tenancy, and it was on this basis that it evaluated the evidence led by the parties. The lower Court failed to perform its duty of proper evaluation of evidence and it is trite that where this occurs, this Court can, in the exercise of its powers under Section 15 of the Court of Appeal Act, carry out a proper evaluation of the evidence and enter the appropriate judgment. Lafia Local Government Vs The Executive Governor of Nasarawa State (2012) 17 NWLR (Pt. 1328) 94, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt. 1329) 286. This is what this Court is compelled to do with regards to the case of the Appellant in the instant case.
It was not in dispute between the parties that the family of the Respondent was in possession of the land in dispute and had so been in possession for many years and from generation to generation and had constantly farmed thereupon and had built up houses as well the graves and burial places of their progenitors thereon. The case of the Appellant was that the family of the Respondent did these acts on the land as their customary tenants. It is trite that a claim which seeks a declaration that the defendant is a customary tenant of the claimant and other consequential reliefs emanating therefrom postulates that the defendant is in exclusive possession of the land in dispute and by the operation of Section 143 of Evidence Act 2011, there is a presumption that the defendant in exclusive possession is the owner of the land in dispute until the contrary is proved to rebut that presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy. Udeze Vs Chidebe (1990) 1 NWLR (Pt 125) 141, Babatunde Vs Akinbade (2006) 6 NWLR (Pt 975) 44, Dada Vs Bankole (2008) 5 NWLR (Pt. 1079) 26.
Where a party alleges in a land suit that the other party is a customary tenant, he must plead and prove the incidences of customary tenancy in that regard. The act of ownership must be satisfactorily established both in the pleadings and on the evidence adduced to establish same. The point was made by Chukwuma-Eneh, JSC in Dim Vs Enemuo (2009) 10 NWLR (Pt. 1149) 353 at pages 378-379 H-B thus:
‘The plaintiff has not pleaded specifically his acts of user in possession of the land in dispute, that is to say, by various, positive and numerous acts of possession over a long period of time to prove his ownership of the land in dispute. He has told how the family has put Okoli Mgbafor on the land as customary tenant with his domestics i.e. the defendant and his kinsmen to whom they have allotted farmlands and furthermore how the defendant and his kinsmen have abandoned the land to another land, along with Okoli Mgbafor, their overlord, and how the defendant and his kinsmens have reverted to the land in dispute without leave and therein have exploited all the economic trees and cash crops on the land and farmed the land without any leave from the plaintiff?s family. It must be noted that the incidences of customary tenancy in this regard have not been pleaded by the plaintiff. This solitary act of ownership has not been satisfactorily established both on the pleading and on the evidence adduced to establish the same.’
In a claim for title to land, where the claimant claims that the defendant is his customary tenant on a piece of land and the defendant too claims to own the land, the question before the Court is whether the defendant?s possession was by the permission of the claimant. It is for the claimant to show that he put the defendant there ? Oduaran Vs Asarah (1972) 5 SC 272, Dada Vs Bankole (2008) 5 NWLR (Pt 1079) 26.
In other words, the question calling for resolution is whether the Appellant pleaded and led evidence to prove the incidences of the alleged customary tenancy of the land by the family of the Respondent. A customary tenancy consists of an intention to create a tenancy coupled with an agreement on terms and conditions and the handing over of possession of the land to the grantee. No certainty of term is necessary for the creation of a customary tenancy nor, indeed, is any other formality required beyond the handing over of the land by the grantors to the grantees in the presence of witnesses, after the initial negotiations and presentation of gifts have been completed. There is no requirement for a customary lease or agreement for a valid customary tenancy to exist and what needs to be proved to establish that a landlord and tenant relationship exists is that one party pays land rent to the other party ? Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559.
The main incident of a customary tenancy is that a customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behaviour – Ejeanalonye Vs Omabuike (1974) 4 ECSLR 435, Lasisi Vs Tubi (1974) 1 All NLR 438, Babatunde Vs Akinbade (2006) 6 NWLR (Pt 975) 44, Dashi Vs Satlong (2009) 5 NWLR (Pt. 1134) 281. It must however be pointed out that payment of tribute is not a condition precedent to the creation of a valid tenancy under customary law. Non-payment of tribute is not inconsistent with the creation or existence of customary tenancy as such tenancy may quite properly be established without the payment of tribute under customary law.
This is because payment of tribute could be overlooked by the landlord as a result of kindness and charity and there are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and good behavior of the tenant. Lawani Vs Adeniyi (1964) 3 NSCC 231, Oshoboja Vs Dada (1999) 12 NWLR (Pt 629) 102, Akanbi Vs Salawu (2003) 13 NWLR (Pt 838) 637, Ajao Vs Obele (2005) 5 NWLR (Pt 918) 400, Nwosu Vs Uche (2005) 17 NWLR (Pt 955) 574, Akinlagun Vs Oshoboja (2006) 12 NWLR (Pt 993) 60, Bassey Vs Bassey (2009) 12 NWLR (Pt 1156) 617.
The case of the Appellant in the lower Court was that under Ngas native law and custom, there is no need for the handing over of the land by the overlord to the tenant in front of witnesses and that there is no need for the payment of tribute for a customary tenancy to be created. Now, native law and custom is defined as the unrecorded tradition and history of a people.
It is not declared or enacted into existence but grows or develops through time. It expresses itself not in a succession of words, but in a course of conduct. It is such conduct that has over time come to be accepted and prevail among a certain community or group of persons as a standard of conduct. It is that practice that by its common adoption and long, unvarying habit has come to have the force of law and has come to be accepted as regulating and controlling the lives and transactions of the community subject to it ?Oyewunmi Vs Ogunesan (1990) 3 NWLR (Pt 137) 182, Nwagbogu Vs Abadom (1994) 7 NWLR (Pt 356) 357, Nwaigwe Vs Okere (2008) All FWLR (Pt 431) 843, Nwinyi Vs Okonkwo (2013) LPELR 21216(CA). The essence of a custom is in its uninterrupted practice, acceptability and habit of compliance by the people ? Aku Vs Aneku (1991) 8 NWLR (Pt 209) 280, Ebere Vs Onyenge (2000) 1 NWLR (Pt 643) 63. Hence, the Evidence Act defined custom in its Section 2 (1) as such a rule, which in a particular district or place has, from long usage obtained the force of law. The necessary out-flow from these statements of the law is that a practice can only crystallize into custom through repetition over a period of time to the extent that it becomes prevailing amongst the members of the community who accept it as binding upon them. Nwinyi Vs Okonkwo supra.
It is settled law that custom is a question of fact and where material to a party’s case, the same must be pleaded and proved, unless the very custom has been acted upon by a superior Court in the area from which the claim evolved or the custom had acquired such notoriety and judicial notice of the custom is taken ? Onyejekwe Vs Onyejekwe (1999) 3 NWLR (Pt 596) 482, Ezeokonkwo Vs Okeke (2002) 11 NWLR (Pt 777) 1, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1. It was not the case of the Appellant that the native law and custom he relies on has been judicially noticed. It was thus incumbent on him to prove it by credible, cogent and sufficient evidence. It is settled law that native law and custom can only be proved by evidence of witnesses belonging to the community to show that that community in the particular area regard the alleged customary law as binding on them ? Okpowagha Vs Ewhedoma (1970) All NLR 208, Ojemen Vs Momodu II (1983) NSCC 135.
The Appellant called four witnesses in proof of his case. Only, Michael Shemshak, the traditional head (Ngolong) of Duk Village, who testified as the first plaintiff witness gave evidence on the Ngas native law and custom, and the other three witnesses merely restated the case of the Appellant on the pleadings and none of them asserted in any part of his evidence that he was knowledgeable about native law and custom of the Ngas. The first plaintiff witness gave evidence that he had knowledge of the Ngas native law, custom and practice relating to farmlands in Ngas nation and applicable to the people of Duk and that under the native law and custom, land is acquired amongst the Ngas either by purchase, pledge, gift inter vivo, inheritance, loan or fine. It was his evidence that payments of tributes are sometimes not observed depending on the circumstances and relationship between a customary tenant and his landlord and also that a customary tenant can build houses on land he holds of his landlord, but with the prior consent of the landowner. It was his evidence that under Ngas custom, all plants, economic or non-economic trees, and whether nurtured/grown naturally or planted by a customary tenant are always reaped and enjoyed by the tenant and his heirs and also that those plants nurtured and planted by the landowners are always harvested and enjoyed by the tenant subject to his loyalty to the landlord.
This was the only evidence led by the Appellant on the native law and custom of the Ngas. The Supreme Court has held severally that, though it is not a strict requirement of the Evidence Act, since cogent evidence of custom must be adduced through credible witnesses, wisdom and prudence demand that more than one witness be called and that it is unsafe to accept the statement of the one person asserting the existence of a custom as conclusive. Lipede Vs Sonekan (1995) 1 SCNJ 184, Ezeanya Vs Okeke (1995) 4 SCNJ 60, Daramola Vs Governor, Osun State (2004) FWLR (Pt 192) 112, Olubodun Vs Lawal (2008) All FWLR (Pt 434) 1468, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1.
Further, the evidence of the first plaintiff witness was not specific on the case of the Appellant, but a general rendition of the native law and custom of the Ngas. The witness stated that payment of tribute is an incidence of customary tenancy under the Nga native law and custom, but that it may be waived by the landlord depending on the circumstances and his relationship with the customary tenant. The Appellant led no evidence to show that the family of the Respondent paid tribute to his family for the possession of the land in dispute and/or that his family waived the payment of tribute because of the relationship that existed between them and the family of the Respondent. The case of the Appellant that payment of tribute was not a requirement for customary tenancy under Ngas native law and custom was at variance with the evidence led by the first plaintiff witness.
Additionally, the witness did not state that it was not an incidence of customary tenancy under the Ngas native law and custom that the land in question should be handed to the customary tenant in the presence of witnesses. The assertion of the Appellant that the handing over of land in presence of witness is not part of Ngas native law and custom on customary tenancy was thus not proved and there was no evidence led by the Appellant of the persons that witnessed the alleged transaction between the family of the Appellant and the family of the Respondent. Again, the witness stated that it is an incidence of customary tenancy under Ngas native law and custom that a customary tenant must seek for and obtain the prior consent of his landlord before building on the land. It was not the case of the Appellant either on the pleadings or in the evidence of their witnesses that the family of the Respondent sought for and obtained permission from his family before erecting the several buildings they had on the land in dispute and/or the graves of the progenitors.
The Appellant clearly failed to lead credible evidence to establish the alleged customary tenancy of the family of the Respondent over the portion of land in dispute. The Appellant led no credible evidence to rebut the presumption of the ownership of the land in dispute that enured to the benefit of the family of the Respondent under Section 143 of the Evidence Act by virtue their possession of the land. The claims of the Appellant must thus fail.
With respect to the counterclaims of the Respondent, the lower Court deliberated in the judgment thus:
The question to be determined is whether the defendant proved his counterclaim – DW1 Silas Gofwan testified in line with the pleadings of the defendant/counterclaimant. In addition, the defendant called three other witnesses who testified in line with the defendant/counterclaimant’s pleadings, in terms of not only the identity of the land but as to how and who founded the land. In view of the consistent evidence of the defendant/counterclaimant as against the conflicting evidence adduced by the plaintiff, I do find that the evidence tilts in favour of the defendant/counterclaimant on the imaginary scale of justice.
Having regard to the evidence led by the defendant, I find that the evidence established the defendant?s case by way of traditional evidence of the root of the defendant’s title to the land in dispute, namely Gukwat who deforested same. It is also established that the defendant’s family have exercised numerous acts of ownership through farming and planting of economic trees. In addition, defendant gave a clear genealogical account of his family tree and how the land devolved to him from his progenitor, Gukwat.
The lower Court held, on the bases of these findings, that the Respondent made out a credible case to sustain his counterclaim.
Counsel to the Appellant submitted that the case of the Respondent was replete with material contradictions and that the Respondent did not plead his genealogical connection to the progenitor of the family. The Court must say that it finds the submission of the Counsel to the Appellant that the Respondent did not link himself to the family tree pleaded in the matter preposterous and mischievous in the circumstances of this case. The records of appeal show that the Respondent was not the original defendant in the matter and that the original defendant was one John G. Bitmang and that, upon the death of John Bitmang, it was Appellant that filed an application on the 21st of February, 2014 to substitute the Respondent as the defendant and he deposed in the affidavit in support of the application, that his family decided to substitute Respondent ‘who is a direct descendant of the Bitmang Family who can inherit the deceased by virtue of Ngas custom’ and it was on this basis that the lower Court granted the application.
How then can the Counsel to the Appellant with all conscience now contest the connection of the Respondent to the Bitmang family. Additionally, there was unchallenged evidence before the lower Court that the grandfather of the Respondent was Gofwan, who was clearly mentioned in the family tree pleaded by the Respondent.
A read through the case of the Respondent on the counterclaim shows that apart from the evidence of traditional history, he also relied on possession of the land in dispute by his family from time immemorial and the exercise of several acts of ownership and possession on the land such as cultivating it, erecting buildings thereon and the burying of the dead on the land. The Appellant admitted that the family of Respondent had been in possession of the land in dispute and had cultivated thereon from generation to generation and erected buildings on the land, even prior to 1960, and had also buried their dead on the land. It is settled law that where a person has been in possession of land and has developed the land, he would prima facie be deemed to be the owner of the land ? Okechukwu Vs Okafor (1961) 2 SCNLR 369, Odi Vs Osafile (1987) 2 NWLR (Pt 57) 510, Alibe Vs Yaro (2002) 1 NWLR (Pt 747) 238, Oyadare Vs Keji (2005) 7 NWLR (Pt 925) 571. Evidence of possession is one of the ways of establishing title to land. Onwuama Vs Ezeokoli (2002) 5 NWLR (Pt 760) 353.
Where a person is shown to have been in long possession and enjoyment of a piece of land in dispute, he is presumed to be the owner of the land and the burden of proving that he is not the owner of the land is on the person who so asserts and this burden can, and will, only be discharged by that person showing a good title to the land in dispute Williams Vs Akinwunmi (1966) All NLR 105, Oduola Vs Coker (1981) 5 SC 197, Ajuwa Vs Odili (1985) 2 NWLR (Pt 9) 710, Udeze Vs Chidebe (1990) 1 NWLR (Pt 125) 161, Nwosu Vs Udeaja (1990) 1 NWLR (Pt 125) 188, Maskala Vs Silli (2002) 13 NWLR (Pt 784) 216,Polo Vs Ojor (2003) 3 NWLR (Pt 807) 344, Salami Vs Lawal(2008) 14 NWLR (Pt 1108) 546. The law presumes that the long enjoyment by a party in possession of land indicates that his rights have a legal origin, particularly when the party has been in possession nec clam, nec vi, nec precario; that is neither secretly, nor by force, nor with permission. Abudu Vs Eguakun (2003) 14 NWLR (Pt 840) 311, Balogun Vs Akanji (2005) 10 NWLR (Pt 933) 394. These principles are encapsulated in the provisions of Section 143 of Evidence Act 2011.
The Appellant failed to prove that the family of the Respondent were on the land in dispute by the permission of his family and he failed to rebut the presumption of ownership of the land by the family of the Respondent and has thus not given this Court any reason to tamper with the decision of the lower Court granting the counterclaim of the Respondent.
In conclusion, this Court finds no merit in the appeal and it is hereby dismissed. The judgment of the High Court of Plateau State delivered by Honorable Justice D. G. Mann in Suit No PLD/P1/2012 on the 18th of December, 2015 is affirmed. The Respondent is awarded the costs of this appeal assessed at N50,000.00. These shall be the orders of the Court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, had obliged me in draft the lead judgment he just delivered.
I adopt the reasoning and conclusion therein to dismiss the unmeritorious appeal.
Appeal dismissed. In consequence, I also affirm the judgment of the High Court Plateau State Coram Hon. Justice D.G. Mann delivered in Suit No PLD/P1/2012 on the 18th day of December, 2015.
I abide by the order on cost in favour of the Respondent.
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A., and I am in agreement with his reasoning and conclusion; accordingly, I also dismiss the appeal for lacking in merit. I abide by my brother?s order as to costs.
Appearances:
D. N. Dashe with him, L. J. Zakari and F. S. GoyinFor Appellant(s)
Charles Obishai, SAN with him, Dickson Otuagoma, Eric Goler, Sabina Davou and Blessing OchayiFor Respondent(s)
