BATURE & ORS v. MONDAY IJAN YERO
(2019)LCN/13073(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/K/200/2016
RATIO
LAND LAW: DECLARATION OF TITLE : ONUS IS ON THE PLAINTIFF TO PROVE CLEARLY THE BOUNDARIES OF THE LAND CLAIMED
The law is settled that in a claim for declaration of title to land, the onus is on the plaintiff to prove clearly the boundaries of the land claimed. See AREMU VS. ADETORO (2007) 16 NWLR (PT.1060) 244 AT 266 PARAS E ? H, MINISTRY OF LANDS & HOUSING, BAUCHI STATE & ANOR. VS. ALHAJI YAKUBU SALE TIRWUN (2017) LPELR43314 (CA). PER JAMES GAMBO ABUNDAGA, J.C.A.
WHEN THE IDENTITY OF A LAND IN DISPUTE BECOMES AN ISSUE
However, the identity of the land in dispute will only arise, or be in issue if and only if the defendant in his statement of defence makes it one. The identity is said to arise if the defendant disputes specifically either the area, or the location or the features shown in the plaintiff?s plan, or where even if there is no plan, the area, location or features on the land are disputed. See ALH. RAUFU GBADAMOSI VS. OLAITAN DAIRO (2007) LPELR 1315 (SC).PER JAMES GAMBO ABUNDAGA, J.C.A.
LAND LAW: WHEN PROOF OF IDENTITY TO LAND WILL NOT BE REQUIRED
However, the proof of identity of the land will not be required where the identity of the land is known to the parties. See ATANDA VS. ILIASU (2012) LPELR?19662 (SC), ANAGBADO VS. FARUK (2018) LPELR?44909 (SC).PER JAMES GAMBO ABUNDAGA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. BATURE
2. IRIMIYA ANCHE
3. BALA BATURE
4. ISHAYA YARO
5. DANJUMA ABANA
6. AMOS ABANA
7. SALE ANTHONY
8. IBRAHIM MAKERI Appellant(s)
AND
MONDAY IJAN YERO Respondent(s)
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering The Leading Judgment): The Respondent as plaintiff at the lower Court (High Court of Justice Kaduna State, Holden at Kafanchan, presided over by Hon. Justice L. D. Aba) took out a writ of summons against the Appellants, who were defendants/counter claimants; wherein he claimed against the defendants/counter claimants jointly and severally, the following:
(1) A declaration of title in respect of all that parcel of land situate, lying and located at Tudun Wada near Fadan Karshi bounded at four corners by the lands of Goje, Angulu, Agia and plaintiffs other land not in dispute.
(2) An order forfeiting customary tenancy of the defendants.
(3) An order of perpetual injunction restraining the defendants either by themselves, privies, heirs, agents, assigns or whomsoever from trespassing, tampering or howsoever dealing with the disputed land.
(4) Costs of this action.
In reaction to the Respondents claims, the appellants filed a statement of defence and counter claim by which they denied the Respondents claims in its entirety, and went further to counter claim
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as follows:
1. A declaration of title that the 1st, 2nd, 4th, 5th, 6th and 7th defendants are the owners of the respective portions of land as described in paragraphs 7(e), 8(e), 9(c), 10(d), 10(e) and 11(d) of the statement of defence.
2. An order of perpetual injunction restraining the plaintiff either by himself, privies, heirs, agents, assigns or whomsoever from further trespassing unto the said land or interfering with the defendants? title whatsoever.
The Respondent reacted to the statement of defence and counter claim by filing a reply to same whereby he denied the defendants? counter claims.
The matter eventually went into trial which culminated in a judgment for the Respondent. In regard to the counter claim, the lower Court held at page 356 of the record of appeal:
In the absence of the 1st defendant?s evidence in chief a case of traditional history respecting title to land, as is the case here, 1st defendant has therefore, admitted to plaintiffs case. Like earlier stated the absence of the 1st defendants evidence affects the evidence of the others, 1st defendant being the eldest
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and surviving of the two people given the loan. With this, I hold that defendants traditional history fails. Can they succeed in proving acts of possession. The law is that where a partys traditional history is not proved, a Court cannot give judgment for a party based on possession. See OYADARE VS. KEJI (2005) 1 SC (PT. 1) PAGE 19 AT 33 34. . . .
Not satisfied with this judgment the defendants/counter claimants appealed to this Court vide a Notice of Appeal containing 12 (twelve) grounds of appeal which was filed on 29th December, 2014.
Briefs of argument were subsequently filed by both the Appellants and the Respondent. The Appellants? brief of argument, settled by Aliyu Suleiman Jatau, Esq. was filed on 16th June 2017.
Ben A. Abugu, Esq, filed the Respondent?s brief of argument on 17th July, 2017.
The Appellants counsel distilled the following two issues in the appellants brief of argument:
(1) Whether from the state of pleadings of the parties and evidence led therein, the lower Court was right to have entered judgment in favour of the Respondent (Grounds 1 -11).
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(2) Whether the learned trial judge was right not to have pronounced on the Appellants? counter claim one way or the other, when the Appellants led evidence in proof of same. (Ground 12)
On the part of the Respondent, the following sole issue was identified for the determination of this appeal in the Respondents brief of argument;
Who proved a better title to the disputed land on a balance of probability between the Respondent and the Appellants having regard to the pleadings and evidence led by both parties. (Grounds 1 – 12)
On a careful reading of the issues, I am of the respectful view that the appeal can be more appropriately and exhaustively resolved on the following issues:
(1) Whether the Respondent proved his case to entitle him to judgment.
(2) Whether the Appellants? counter-claim was considered and pronounced upon by the lower Court.
(3) Whether the Appellants proved their counter-claims to entitle them to judgment.
RESOLUTION OF THE ISSUES
Issue one
Whether the Respondent proved his case to entitle him to judgment.
It is the submission of
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appellants counsel that the Respondent woefully failed to prove his claim. He submitted that the pleadings and evidence are completely at variance, inconsistent and contradictory. He contended that issues were joined between the appellants and the Respondent on the identity of the land for which the Respondent instituted the action, consequently the Respondent has the onus to prove the boundaries with definitive certainty, or else his action will fail, citing ENEBENMOR OSIEGBU & 2 ORS. VS. ATAMUA OKOH & 2 ORS. (2005) 16 NWLR (PT.950) 58 AT 74 PARAS A ? B. Upon the analysis and cross references to the evidence of the Respondent?s witnesses, the appellants? counsel submitted that the Respondent and all his witnesses PW2 ?PW6 gave contradictory and inconsistent evidence on the boundaries of the land, and therefore his case stands to be dismissed.
Cases cited and relied by counsel on the issue of the duty on the Respondent to prove the boundaries of the land he has sued for include AREMU VS. ADETORO (2007) 16 NWLR (PT. 1060) 244 AT 266 PARAS E ? H, MARCUS UKAEGBU & 3 ORS. VS. MARK NWOLOLO (2009) 3 NWLR (PT.
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1127) 194 AT 223 PARAS C E, ODUNZE & 5 ORS. VS. NWOSU & 4 ORS. (2007) 13 NWLR (PT. 1050) 1 AT 34, OKUNADE VS. OLAWALE (2014) 10 NWLR (PT. 1415) 207 AT 264 PARAS E F.
The contention of appellants counsel is that the Respondent having failed to prove the boundaries of the land, the lower Court ought to have at that stage dismissed his case without venturing into other issues.
On this issue of proof of boundaries, the submission of Respondents counsel is that the appellants did not specifically traverse the boundary neighbors in paragraph 3 of the plaintiffs statement of claim. That what the defendants/appellants did in paragraph 3(a ? f) of their joint amended statement of defence was a general traverse. He further submitted that even if it is conceded that the identity of the land had been put in issue, the defendants have also counter claimed and therefore has a duty to plead and lead evidence in proof of same but failed to do so. He cited the decision in FATUADE VS. ONWOAMANAM (1990) 2 NWLR (PT. 132) 322 AT 328 PARA G – H which is to the effect that in a declaration for title to land the
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question of the identity of the land in dispute will only be in issue if and only if the defendant in the statement of defence made it one. He also pointed out that the Upper Sharia Court before which the plaintiff sued before the intervention of the District head of Fadan Karshi went on a visit to locus in quo which visit was to identify the land, and this fact counsel submitted was admitted by the defendants in their statement of defence and counter claim.
Further submitted by the Respondent?s counsel is that the 3rd defendant as DW1 admitted under cross examination that he knew the land the plaintiff claims, which is the same land they counter claim. On this counsel referred to page 311 of the record of appeal. He also relied on the evidence of PW4 and PW5 in support of his submission that the boundary of the land has been proved and not in dispute.
Counsel did not accept the submission of Appellants? counsel that there are contradictions in the evidence of Respondent?s witnesses on the identity of the land and submitted that what counsel regards as contradictions are different perceptions and appreciations of the different witnesses
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of the same situation which counsel sees as natural in human nature. Counsel relied on AKINDIPE VS. THE STATE (2012) 6 SCNJ 278 AT 296 for this submission.
The contention of the Respondent?s counsel is that a counter claim must as a matter of necessity relate to the same land, otherwise separate originating process would have to be filed by the plaintiff/Respondent.
The law is settled that in a claim for declaration of title to land, the onus is on the plaintiff to prove clearly the boundaries of the land claimed. See AREMU VS. ADETORO (2007) 16 NWLR (PT.1060) 244 AT 266 PARAS E ? H, MINISTRY OF LANDS & HOUSING, BAUCHI STATE & ANOR. VS. ALHAJI YAKUBU SALE TIRWUN (2017) LPELR?43314 (CA). However, the identity of the land in dispute will only arise, or be in issue if and only if the defendant in his statement of defence makes it one. The identity is said to arise if the defendant disputes specifically either the area, or the location or the features shown in the plaintiff?s plan, or where even if there is no plan, the area, location or features on the land are disputed. See ALH. RAUFU GBADAMOSI VS. OLAITAN DAIRO
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(2007) LPELR ? 1315 (SC).
However, the proof of identity of the land will not be required where the identity of the land is known to the parties. See ATANDA VS. ILIASU (2012) LPELR?19662 (SC), ANAGBADO VS. FARUK (2018) LPELR?44909 (SC).
The law is settled that a defendant who counter claims is disabled from asserting that he does not know the identity of the land for which he is sued and which apart from denying the claim, he goes ahead to counter claim. In the case of ANYANWU VS. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445, Tabai, JSC held:
?…It is my firm view that defendants in a land matter as in this case, who counter claimed cannot turn round to argue that the identity of the land was not established. In my view the very argument is a contradiction to their counter claim over a piece of land which identity they do not know.?
?I have read paragraphs 7(e), 8(e), 9(c), 10(d), 10(e) and 11(d) of the amended joint statement of defence where the appellants? counsel is said to have joined issues on the identity of the land. I do not see in these paragraphs a disputation by the defendants/appellants of
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the identity of the land but their own description of the land which they are counter claiming as against the plaintiff/respondent?s claim. I have also gone through the evidence of the witnesses especially the defendants?.
There is nothing in those pieces of evidence that suggests to me that the witnesses (the defendants/counter claimants) are in any doubt as to the identity of the land on which they testified. For instance, the 3rd defendant who testified as DW3 told the Court under cross examination that he knows the land that the plaintiff claimed which is the same land they also counter claimed.
I think, the Supreme Court settles it all in the case of ANYANWU VS. UZOWUAKA (SUPRA). Indeed, I am unable to see the wisdom behind a defendant counter claiming for land he is sued for, whose identity he does not know. How would such a defendant generate the evidence upon which to prove his counter claim without running into troubled water of identifying the land?
Therefore I have no hesitation in resolving the issue of identity of the land in dispute against the Appellants.
?
The Respondent?s principal claim is that of
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forfeiture of customary tenancy. It therefore calls for inquiry as to whether the Respondent proved, first, the existence of customary tenancy and if that is resolved in the affirmative the Court will proceed to determine whether the customary tenancy has been proved to have been forfeited.
The existence of a customary tenancy must be preceded by the determination of the issue as to whether the Respondent has proved his title to the land in the first place. In the instant case the Respondent has set up traditional history as his root of title.
It is the law that where a person relies on traditional history as his root of title to land, the onus is on him to plead the root of his title, names and history of his ancestors. He should lead evidence to show same without leaving any missing links in genealogical tree from progenitors and eventually pass it to him. See AWODI VS. AJAGBE (2015) 3 NWLR (PT. 1447) 578, ALABELAPA VS. AJISEFINI (2017) LPELR43234 (CA). In the case of EZEOKONKWO & ORS. VS. OKEKE & ORS. (2002) LPELR?1211 (SC) the Supreme Court held:
A plaintiff who seeks title to land and relies on traditional
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history must, to succeed, plead the root of his title and the names and history of his ancestors and lead satisfactory evidence in proof thereof. See TOTAL (NIG) LTD. VS. WILFRED NWAKO (1978) 5 SC. 1 AT 12, ELIAS VS. OMO-BARE (1982) 5 SC. 25 AT 57 58.
Learned counsel to the Appellants submitted that the traditional history pleaded and/or relied on by the Respondent is unreliable, contradictory, inconclusive and suffers internal conflict. That there is contradictions in the Respondent?s pleading as to the traditional history relied on by him. Counsel referred to paragraphs 4-11 of the Respondent?s statement of claim. He contended that the Respondent pleaded inheritance from his late father Yero Mangi as his root of title in one breath and in another breath he pleaded devolution of the land to him upon his elder brother?s death as head of the family of Yero Mangi as his root of title. That by his pleading in paragraph 3 of his statement of claim that he was the only surviving son when he inherited the land from his late father, Yero Mangi, his elder brother was dead.
Counsel therefore submitted that where a
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partys traditional history is not cogent and reliable or inconclusive as in this case, his claim should be dismissed and that such traditional history has no chance of being tested under the Rule in KOJO II VS. BONSIE. He placed reliance on the case of MATANMI VS. DADA (2013) 7 NWLR (PT. 1353) 319 AT 334 ? 335.
Counsel further submitted that PW6 (Emmanuel Galadima) under cross examination contradicted the root of title pleaded by the Respondent when he stated under cross examination that the 1st person to deforest the land was one Amanga, and that Ijan then inherited from Yero. That the pleading is that one Adewai was the first to deforest the land. Further submission of counsel is that in order to succeed on traditional history, the claimant must lead cogent and conclusive evidence in support of his pleadings on same without having gaps or creating mysterious and embarrassing linkages which are not explained. Counsel relied on the case of OLALEYE VS. ADEJUMO (2005) 10 NWLR (PT. 933) 429 AT 454 PARAS B-C.
In his response, learned Respondent?s counsel submitted that the plaintiff/respondent pleaded and proved title to the disputed
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land based on traditional evidence/history and justified the judgment of the trial Court in his favour. He referred to his pleadings. He referred to his statement of claim, and submitted that the traditional history/evidence of the respondent is credible, cogent consistent and intact and was not punctured by contradiction, especially when compared with that of the Appellants.
It was submitted for the Appellants that the lower Court failed to advert its mind to the following: That in the first place, the Respondent himself after stating what he said is the traditional history of the land in his statement on oath, he went on to contradict same in the same deposition. That in paragraph 3 of the deposition he averred that he was the only surviving son of his father Yero Mangi, and as such, inherited the land from his father, who also inherited it from his father Mangi, and Mangi inherited same from Adewai who first founded, deforested and settled on the land long time immemorial.
Appellants counsel further contended that in what is clearly a contradiction the Respondent averred in paragraph 5 of the same deposition that after Anche and Bature,
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fore runners of the defendants in Tudun Wada land were settled in their present place of abode, Anche and Bature approached Ankawa his elder brother/head of their family for a farm land to enable them farm. He went further to aver in paragraph 6 of the deposition that Ankawa then loaned the disputed land to Anche and Bature for farming purpose only and that he knew and witnessed this loan because he was old enough to understand what was happening and had in company of his father and other brothers farmed on the disputed land before the loan of same. Just as the appellants? counsel misunderstood the import of these depositions I initially did so too. I had the impression from the deposition in paragraph 3 that at the time the Respondent?s father passed away, he (Respondent) was his only surviving son. The explanation offered by Respondent?s counsel in his brief of argument that at the time hostilities commenced between the Respondent and the appellants, the Respondent?s brother Ankawa had passed on, hence his deposition in paragraph 3 that he is the only surviving son of his father has cleared my earlier understanding of the situation.
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This explanation has given more understanding to paragraphs 5 and 6 of the Respondents statement of claim which is also replicated in paragraphs 5 and 6 of the Respondent?s witness deposition. The Respondent?s counsel made heavy weather of the alleged contradictions in the statement of claim and witnesses? deposition in relation to traditional history in his final written address in the Court below but that the Judge did not make any finding on it in his judgment. On a first thought I formed the opinion that the explanation offered by counsel should have been by way of an amendment of the plaintiff/Respondents statement of claim, but on a deeper reflection of paragraphs 3, 5 and 6 of the Respondents statement of claim it is clear that an amendment of the statement of claim is unnecessary. It was submitted for the Appellants that the lower Court also failed to make a pronouncement on the evidence of PW6 who told the Court under cross examination that the first person to deforest the land was Amanga contrary to the Respondent?s pleading that the first person to found and deforest the land was Adewai. Amangai or
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Manga as seen in the evidence on record is the grandfather of the Respondent. PW6, Emmanuel Galadima was the village head of Tsohon Gari, Fadan Karshi Sanga Local Government of Kaduna State. He gave evidence of how his grandfather gave his personal land to the defendants forbears to settle on. He told the Court that being a member of the community where the land is situated he witnessed the plaintiff and his parents/elder brothers farmed the land in dispute before the defendants came to settle at Tudun Wada. I do not accept the submission of appellants? counsel that the Respondent?s traditional evidence/history is unreliable. This is because being traditional history, it is an account of events that took place a long time ago. It is not possible to remember such an account without minor discrepancies. Therefore, I am unable to see any material contradiction in the Respondent?s evidence on traditional history.
The real crux of the matter is whether the Respondent has proved that the Appellants are his tenants and have forfeited the tenancy to be entitled to reversion of the land back to him. The two will be
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considered contemporaneously.
Customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. Unless expressly excluded, the main feature of a customary tenancy is the payment of tributes by the customary tenant to the overlord; and the status of his exclusive possession is such that it is enforceable against the world at large including even the customary Landlord or those who claim through him. See DASHI & ORS. VS. SATLONG & ANOR. (2009) 5 NWLR (PT. 1134) 281, APAJUABE & ANOR. VS. EWEJE & ORS. (2014) LPELR ? 24048 (CA).
The acts upon which a Customary tenancy may be forfeited include:
(i) Going beyond the area granted them,
(ii) Alienation of portion or parcel of the land to other parties without the consent of the Landlords,
(iii) Refusal or failure to pay tribute or rent to the Landlords.
(iv) Putting up permanent structures on the land without the consent of the Landlord.
(v)
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Putting up competing interests on the land which is adverse to the interest of the Landlord.
(vi) Denial of the Landlords title to the land not originally allocated to them.
See OKPALA & ORS. VS. OKPU & ORS. (2003) LPELR ? 2513 (SC), ABIOYE & ORS. VS. YAKUBU & ORS. (1991) LPELR 43 (SC).
In paragraph 7 of the statement of claim, the Respondent averred that his elder brother Ankawa loaned the land to Anche and Bature for farming purpose. Even though he was small, he was old enough to understand what took place. The Respondent?s evidence on this is in paragraph 6 of the Respondent?s witness deposition. He went on in paragraph 7 to state that in the first two years of the loan the two paid tribute of tubers of yam and guinea corn to Ankawa. As borne out of the record the Respondent remained solid on this evidence under cross-examination. He testified as PW5 on 23/05/13 by adopting his witness deposition.
The Respondent?s evidence on the loan of the land was corroborated by the evidence of PW4 (Yakubu Tukura Ankawa) on 23/05/13. He told the Court that he witnessed the ceremony at which
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the land was given on loan to Anche and Bature.
Much of appellants counsels submission on the customary tenancy was underscored by his misconception of the averment of the Respondent that he was the only surviving son of his father; which was understood to mean that he was the only son of his father alive to whom the land devolved, and therefore counsel regarded Ankawa who loaned the land out as a third party. The correct position as I understand is that, as at the time the dispute over the land arose, and was taken to Court, and at the time of Respondents deposition, his elder brother, Ankawa who acceded to the request of Anche and Bature for the land on loan had passed on.
I do not therefore accept as credible the contention of the appellant?s counsel that payment of tribute on this case was to/through a third party. The same goes for all the other submissions predicated on that contention.
In support the Respondent?s case is the evidence of other persons who are not members of the Respondents family nor directly linked to the history of this land. The appellants? counsel faulted the findings of the
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lower Court on the evidence of some of those witnesses. He commenced with the finding of the trial Court at page 354 of the records where the trial Court held:
Thus, the resolutions of those meeting were that the land belonged to the plaintiff. What is even more, traditional rulers are the custodians of the custom and practices of their people. They know the lands and the owners by their custody of same. If the traditional rulers resolved that the land belonged to the plaintiff, so be it.
The appellants? counsel submitted and quite rightly in my view that this finding is speculative and amounted to setting up a case different from the case set up by the Respondent. He further submitted and I cannot fault his submission that it was not the case of the Respondent that the parties submitted themselves to binding customary or traditional arbitration.
I want to state right away that by its finding on the evidence of the traditional rulers, the Court completely abdicated its duty of evaluation of evidence of the witnesses that testified before it. I am really surprised that the Respondents counsel, rather than cross appeal the
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lower Court?s finding on this urged us to affirm it.
It is trite law that where a Court has failed to evaluate the evidence before it, or even if it did, it was improperly done, the appellate Court is imbued with the power to do the evaluation and ascribe probative value to such evidence. See NDUKWE VS. STATE (2009) LPELR ? 1979 (SC), AKINOLA & ANOR. VS. OLUWO & ORS. (1962) LPELR ? 25101 (SC), ADEGOKE VS. ADIBI & ANOR. (1992) LPELR 95 (SC).
This is what I will proceed to do. The first person who testified for the Respondent was Bala Madaki. He adopted his witness deposition. He was District Head of Fadan Karshi in Sanga Local Government, Kaduna state where the parties in this case reside. It was by virtue of this strategic position that he deposed to the facts in his deposition. The dispute over the land according to him was reported to him by the Respondent. Paragraph 7 of his deposition is that he used the occasion of the settlement to tell the defendants the origin of their stay in Tudun Wada as passed on to them by oral history by their parents, that where the defendants reside is the personal property of
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their (Witness?) parents who received them and settled the first set of defendants who came to Tudun Wada; and that where the defendants are farming is the land of the plaintiffs forbears (that is the Respondent?s forbears) which was loaned to the defendants/settlers to farm and get food to eat. He further deposed that his father was one of the indigenous people of Tudun Wada who owned land near to the disputed land which land devolved upon him by inheritance. That where G.S.S. Fadan Karshi was built was his personal land, and that he was specifically the person who gave permission for the school to be built on the land. That convinced by the fact that the land belonged to the Respondent, they advised the appellants to beg the Respondent to allow them to continue farming on the land as tenants but they refused. He was cross examined in the course of which he told the Court that he set up a Committee to investigate the dispute between the appellants and the respondent, which Committee he told the Court submitted a verbal report. He further told the Court under cross examination that he knew the land but not the boundaries.
?
Ijan Sarki (PW2) in
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his deposition told the Court that the disputed land belongs to the Respondent because his land which devolved upon him and his siblings shares boundary with the land. He was the village head of Kabamu village in Fadan Karshi District. He was cross examined and he told the Court that he gave his land to somebody for farming.
Luka Madaki, village head of Fadan Karshi testified as PW3. He deposed that the disputed land is within his territorial coverage. He further deposed that in the year 2010, the Respondent/plaintiff took a report to him that the disputed land is his but that the 2nd defendant (2nd appellant) denied his title to the land. He supported the evidence of PW1 that the disputed land belongs to the plaintiff (Respondent). He deposed that he was one of the council members of the District Head of Fadan Karshi at the District Head Palace that deliberated on the issue. That he endorsed the verdict arrived at. Under cross examination he told the Court that it was the Respondent who told him that the land was his.
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PW4 was Yakubu Tukura, the son of Ankawa Yero who as pleaded by the Respondent, and testified to, was the person who gave the land
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on loan to Anche and Bature to farm. He told the Court that he witnessed the loan because he was then already grown up. He supported the evidence of the Respondent that he is the only surviving son of his father, Yero Mangi and inherited the land from his father Yero Mangi, who also inherited the land from Mangi, his father. That Mangi inherited it from his father, Adewai, who first founded, deforested and settled on the disputed land a long time ago. He further deposed that he was at all the meetings in which the District Head and his council members advised the appellants to beg the Respondent to allow them to continue farming on the land but the advice was rejected. He was cross examined at great length and he stood his ground on all his depositions, and gave further clarifications based on questions that were put to him.
I have earlier considered the evidence of the Respondent who testified as PW5. I have also earlier on considered the evidence of PW6 (Emmanuel Galadima).
The defendants counter claim to the land is based on inheritance from their forebears whose claim to the land is founded on traditional history/evidence.
It is
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trite law that a person who seeks title to land and relies on traditional evidence in order to succeed must plead the root of his title and the names and history of his ancestors and lead evidence to show the root of his ancestors. This must necessarily include how his ancestors had come to own the land in the first place and how the land devolved over the years in the claimant?s family until it got to the claimant. See the following cases amongst the several others that have been decided in the same vein: OKEREKE & ANOR. VS. NWANKWO & ANOR. (2003) LPELR 2445 (SC), AWODI & ANOR. VS. AJAGBE (2014) LPELR?24219 (SC), NKADO & ORS. VS. OBIANO & ANOR. (1997) LPELR?2043 (SC).
The defendants/appellants answers or response to the plaintiffs claim/ and their defence and counter claims are contained in paragraphs 7, 8, 9, 10, 11 of their said statement of defence and counter claims. Therein they averred to the history of how they came about the land.
?An analytical and critical reading of these paragraphs will reveal their inadequacies in meeting the requirements of the law of proof of
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title to land by traditional history/evidence. In paragraph 7 (a) the averment is that the 1st defendant?s forebears/kinsmen were the first to found and settle in the land. The law requires the names of these forebears/kinsmen. They further went to complicate the issue further by saying that the 1st defendant was gifted. This averment removes the land as respects the 1st defendant from the realm of inheritance. As for the 3rd defendant, he is said to have witnessed the gift. There is no averment as to how he came to own the land he is sued for.
As for the 2nd defendant, the averment is that Ambi Anche his elder brother met his forebears in Tudun Wada in the course of his hunting expedition. He went further to aver that the 2nd defendants forebears gifted a portion of their vast expanse of farmland to him. What are the names of these forebears Did they all found the land together, or some of them also got from those who first founded the land
For the 4th defendant, it was averred that his father called Wuyah Yaro was among those who first founded and settled in Tudun Wada. It is about the 4th defendant. What the law requires is the name of
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the first person who founded the land (and not that his father was among the first founders). What are the names of these forebears? Did they all found the land together at the same time. If no, who first founded the land, what were his acts of ownership/ possession on the land before it devolved in the 2nd defendant? There are missing links here. The law abhor it. See ADDAH & ORS. VS. UBANDAWAKI (2015) LPELR ? 24266 (SC).
I find no fault with the pleading in respect of the 5th and 6th defendants. It is in accordance with the guide provided in the cases cited and several others not cited here. The 3rd defendant pleaded no facts that would amount to a sufficient traverse of the plaintiff/Respondents claim against him. What was indeed pleaded to his name is found in paragraph 7 (a) of the amended statement of defence wherein it was deposed that the 3rd defendant was old enough and witnessed the 1st defendant?s forebears when they gifted the 1st defendant?s portion of the land to him.
The facts pleaded by the 1st and 2nd defendants are incapable of proving title to land through traditional history/evidence. There are gaps therein
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which I have pointed out. Whatever quality of evidence is adduced to prove their case by traditional evidence cannot cure the malady because evidence adduced in respect of facts not pleaded goes to no issue. See ARJAY LTD. & ORS. VS. A.M.S. LTD. (2003) LPELR ? 555 (SC).
Let me quickly at this juncture put an issue contested by the Appellants to rest. The 1st defendant/appellant it will be recalled did not appear in Court to adopt his witness deposition. In law, the witness deposition does not become evidence unless it is adopted. See NNPC (RETAIL) LTD. VS. MURTALA & ANOR. (2014) LPELR 22911 (CA). Therefore the 1st defendant is as good as not giving evidence in support of the averments in the amended statement of defence and counter claim pertaining to him.
In his brief of argument, counsel to the Respondent defended the action of the lower Court in invoking Section 167 (d) of the Evidence Act against the said 1st Appellant. This is not right as contended by the appellants? counsel. A party is not bound to call any number of witnesses, or any particular witness in support of his case. Therefore his choice not to call a
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particular witness should not and cannot count against him. See the case of ONOWHOSA & ORS. VS. ODIUZOU & ANOR. (1999) LPELR ? 2695 (CA).
Section 167 (d) of the Evidence Act deals with failure to call evidence and not failure to call a particular witness where a party can prove his case without calling such a witness. See the case of HIGHGRADE MARITIME SERVICES LTD. VS. F.B.N. LTD. (1991) LPELR?1364 (SC). It deals with non production of evidence and not non production of witnesses ? MUSA & ORS. VS. YERIMA & ANOR. (1997) LPELR- 1928(SC).
The lower Court in my view was in error in invoking S. 167(d) of the Evidence Act in respect of the failure of the 1st Appellant to adopt his witness deposition. However, that error is not fatal to the Respondent?s case.
I have also gone through the evidence adduced by the 5th, 6th and 7th Appellants in support of the facts pleaded in their statement of defence and counter claim. Their evidence is not sufficient to establish their counter claim in view of their pleadings.
In further support of the defendants defence and counter claim, paragraph 3 (g) of the
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defendants joint amended statement of defence and counter claim is to the effect that the place was named as Tudun Wada by their forebears. They did not however explain why the place was so named, even when they admitted that Tudun Wada is a Hausa name. The practice usually is that a place is named after the founder, or to reflect a major event that took place at the time the place was founded. The Respondent has refuted the Appellants? claim to the name given to the place, and in the absence of any explanation as to the naming of the place, I am far from being convinced that the name Tudun Wada was given by the defendants? forebears as claimed.
On the other hand the Respondent denied the appellants claim. Rather, as averred to in paragraph 3 of the plaintiffs reply to the defendants? statement of defence and counter claim, the name and village, Tudun Wada is over 300 years having been founded by plaintiffs people including his great grandfather, Adewai who first settled and founded the disputed land. Like the defendants, the plaintiff did not adduce any explanation for the choice of name. Even though
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I find their evidence in support of customary tenancy credible, I refrain from accepting the Respondent?s evidence that his forebears gave the name Tudun Wada to the place.
Learned appellants counsel drew the attention of the Court to contradictions in the evidence of PW4 and PW5 and submitted that no witness who has given two materially inconsistent evidence on oath is entitled to the honour of credibility, and relied on M.S.C. EZEMBA V. S.O. IBENEME & ANOR. (2004) ALL FWLR (PT. 223) 1786 AT 1816 PARAS E?G. While I accept that proposition of law, I decline to accept the submission that the contradictions are such as to lead me to dub the two witnesses untruthful witnesses. It sounds incredulous that this Court is being called upon to ascribe to PW5 an untruthful witness because an aspect of his pleading is slightly contradicted by his witness. On preponderance of evidence, I hold that the Respondent was able to establish customary tenancy between him and the defendants to entitle him to forfeiture.
My considerations of all the vital sub issues on Issue one, leads me to the conclusion that issue
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one is resolved in favour of the 1st Respondent.
Issues two and three will be considered together. For ease of reference I reproduce them.
Issue Two
Whether the Appellants? counter-claim was considered and pronounced upon by the lower Court.
Issue Three
Whether the Appellants proved their counter-claims to entitle them to judgment.
It is established law, and in consonance with fair hearing that where a defendant counter claims, the counter claim must be adequately considered in the judgment of the trial Court, and the trial Court must either uphold or dismiss it. See SAJE ALHAJI & ORS. VS. NYAKO (2018) LPELR ? 44482 (CA).
In the Respondent?s submission that the trial Court considered the defendants? counter claim and pronounced on it, he referred us to page 356 of the record of appeal, and specifically to the 2nd paragraph thereof. This is what the lower Court said in the said paragraph 2 of page 356 of the record of appeal:
?In the absence of the 1st defendant?s evidence in chief a case of traditional history respecting title to land, as is the case here, 1st defendant has
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therefore admitted to plaintiffs case. Like earlier stated, the absence of the 1st defendants evidence affects the evidence of the others, 1st defendant being the eldest and the surviving of the two people given the loan. With this, I hold that defendants traditional history fails. Can they succeed in proving acts of possession? The law is that where a partys traditional history is not proved, a Court cannot give judgment for a party based on possession. See OYADARE VS. KEJI (2005) 1 SC (PT.1) 19 AT 33 34. . . . . .
The above is an unequivocal pronouncement on not only the defendants? defence but the counter claim. Nothing more said on this will be useful.
What invariably follows is whether the lower Court was right, in, by reasonable implication refusing to grant the defendants counter claim? In other words, whether the defendants proved their counter claims to entitle them to judgment.
Evidence in support of the plaintiffs claim and the defendant?s counter claim in my view must be considered contemporaneously. For instance it is not possible to consider the evidence led in support of a
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plaintiffs traditional history without relating it to the evidence called by the defendant in support of his traditional evidence.
In my consideration of issue one, I undertook an evaluation of the evidence adduced at the trial Court before I arrived at the conclusion that the Respondent proved customary tenancy, consequently resolving issue one in favour of the Respondent.
The defendants counter claims were thus not proved. Issues two and three are hereby resolved in favour of the Respondent.
On the whole the appeal lacks merit, and is hereby dismissed. The judgment of the lower Court is hereby affirmed. Parties are to bear their respective costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree
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Appearances:
Aliyu Suleiman JatauFor Appellant(s)
Ben A. AbuguFor Respondent(s)
Appearances
Aliyu Suleiman JatauFor Appellant
AND
Ben A. AbuguFor Respondent
