MARK SATI v. YAKUBU GARBA WAYA (2019)

MARK SATI v. YAKUBU GARBA WAYA

(2019)LCN/13456(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of June, 2019

CA/J/307/2018

RATIO

JUDGMENT: WHEN A DECISION IS PERVERSE

A decision is perverse when it inter alia ignores, overlooks or does not follow a principle of law or procedure which is binding Udom Vs Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179 at 226, paras. F.G. See also Igago Vs State (1999) 14 NWLR (Pt. 637)1; Ogbu Vs State (1992) 8 NWLR (Pt. 295) 255 and Ejikeme Vs Okwonkwo (1994) 8 NWLR (Pt. 362) 266.PER TANI YUSUF HASSAN, J.C.A.

WHEN THERE IS A LACUNAE IN LAW, THE COURT IS TO DO SUBSTANTIAL JUSTICE

The law has inched to a point that the Courts do substantial justice even where no provision exists in the rules, and not otherwise. See Etsako West LGC Vs Christopher (2014) 14 NWLR (Pt. 1426) 73; A.G. Adamawa State Vs A.G. Federation (2014) 14 NWLR (Pt. 1428) 515 and Mfa Vs Inongha (2014) 4 NWLR (Pt. 1397) 343.PER TANI YUSUF HASSAN, J.C.A.

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

MARK SATI Appellant(s)

AND

YAKUBU GARBA WAYA Respondent(s)

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Bauchi State High Court delivered on the 16th of April, 2018 in suit No. 344/96 by A. H. Suleiman J.

The Appellant as Plaintiff at the lower Court commenced action against the Respondent as Defendant by Writ of Summons. By an Amended Statement of Claim dated 23rd day of September, 2016, the Plaintiff claims against the Defendant as follows:
(a) A declaration that the act of the Defendant on the farmland constitutes trespass.
(b) The sum of N10,000,000.00 (Ten Million Naira) as general damages for trespass.
(c) A perpetual injunction restraining the Defendant by himself, his servants, agents, privies or any other person deriving authority from him from entry or trespass into the farmland.
(d) The Plaintiff claims the sum of N500,000.00 (five hundred thousand naira) as special damages.

The Respondent also filed an Amended Statement of Defence and counter claimed as follows:
1. A declaration that the Defendant counter/claimant is the rightful owner of all that piece of land measuring 580 by 280 lying and

situate at Inkil village, Bauchi state which is the subject of this suit.
2. A perpetual injunction restraining the Plaintiff, whether by himself, his heirs, privies, agents, cohorts or by howsoever means engaging in further acts of trespass upon the Counter/claimant?s land.
3. An immediate order ejecting the Plaintiff, his agents, servants, privies and whomsoever is deriving authority from him from the land.
4. General damages of Five Million Naira (N5,000,000.00).
5. Cost of this action.
The Appellant filed a reply to the Statement of Defence and counter claim.

Trial commenced on the case and at the end of the day, Plaintiff/Appellant?s claims were dismissed and the Defendant/Respondent counter claim succeeded in part.

The Appellant who is not satisfied with the judgment, appealed to this Court on an Amended Notice of Appeal dated 19th July, 2018 and filed on 20th July, 2018 but deemed filed on the 8th of November, 2018. The Amended Notice of Appeal contained four grounds with their particulars and reliefs sought.

The Appellant?s brief settled by Chineye G. N. Esq. was dated 28th day of November,

2018 and filed on the 3rd of December, 2018. In it four issues were distilled for determination, they are:
1. ?Whether the learned trial judge was right in law to have excluded the family traditional evidence of the Plaintiff/Appellant?s farm land as hearsay but went ahead and relied on un-pleaded facts in arriving at his judgment.? (Ground 1)
2. ?Whether the learned trail judge was right in law to hold that the judgment of the Upper Sharia Court was not in respect of the land in dispute and that the Plaintiff?s father was not in actual possession of the land in dispute for a long period of time.? (Ground 2)
3. ?Whether the learned trial judge was right in law to have held that the case of the Defendant counter claimant weighs more in the imaginary balance than that of the Plaintiff despite material contradictions on the testimony of the Defendant?s witnesses. And further held that the Plaintiff has failed to prove his claim on the balance of probabilities as required by law without evaluating the evidence of PW1-PW3 which remains unchallenged and uncontradicted.? (Ground 3)

4. ?Whether the judgment of the trial Court is supported by the weight of evidence adduced by the Plaintiff to counter claim.? (Ground 4)

The Respondent?s brief settled by S.M. Bakaro Esq., was dated 25th September, 2018 and filed on 4th October, 2018 but deemed properly filed on 7th March, 2019. The Respondent?s Counsel adopted issues 3 and 4 of the Appellant as relevant for the determination of the appeal but couched them differently. They read:
1. ?Whether the Appellant has proved his claim at the Court below on preponderance of evidence.? (Grounds 1 and 3).
2. ?Whether in the circumstances the Defendant/counter/Claimant has proved his counter/claim on the balance of probabilities.? (Ground 3)

The importance of formulation of issue is to reduce the ground or grounds of appeal into terse, compact formulations which take cognizance and consideration of the same issues running through more than one ground of appeal. Anyaoha Vs Obioha (2014) 6 NWLR (Pt. 1404) 445 at 459.

?It is trite that the Respondent?s issue for determination must relate to the Appellant?s ground of appeal.

It is

not open for the Respondent to formulate two issues arising from a single ground. The Respondent?s issues one and two are formulated from ground 3 of the appeal. An issue for determination in an appeal can be formulated from a single ground of appeal. But two issues for determination cannot be formulated from a single ground of appeal. In other words splitting of a ground of appeal to give rise to more than a single issue is not allowed.
It is observed that the Respondent?s issue one was formulated from grounds 1 and 3 of the grounds of appeal and issue two formulated from ground 3 of the grounds of appeal. It is not allowed to split a ground of appeal to give rise to more than a single issue for determination in our appellate jurisdiction. See Pharma-Deko Plc Vs Fin Derivates Co. Ltd. (2015) 10 NWLR (Pt. 1467) 225. The issues are incompetent and liable to be struck out since the Court cannot choose for the Respondent between the two issues. Accordingly the issues are struck out. But having adopted the Appellant?s issues, his argument will be considered in relation to the issues distilled by the Appellant.?
It is not necessary that

issues for determination must be formulated from the number of grounds in the Notice of Appeal as was done by the Appellant?s Counsel in this case, where four issues were distilled from four grounds contained in the Notice of Appeal. Proliferation of issues are frowned at by the Apex Court and this Court. It is not the number of issues that qualify for success of an appeal but accuracy, clarity and brevity. A calm view of the Appellant?s four issues formulated for determination are basically on the evaluation of evidence by the trial Court. Since this Court is empowered to adopt the issues formulated by the parties or formulate same, I choose to formulate the issue for determination of this appeal to read:
?Whether the trial Court properly evaluated the evidence of the parties adduced before it.”

Arguing on this issue, it is the submission of the learned Counsel for the Appellant that the trial Court was in grave error to have failed to evaluate the traditional evidence of the Appellant and his witnesses, and held same as hearsay. Counsel relied on the case of Ezewudo Vs Ezenwaka (2016) LPELR 41019. It is submitted that reliance

on the evidence of the Respondent by the lower Court on facts not pleaded goes to no issue. He referred to Adepate Vs Babatunde (2002) 4 NWLR (Pt. 756) 99 at 107 ratio 10 that the holding of the trial judge that the evidence of traditional land history adduced by the Plaintiff and his witnesses amount to hearsay and relying on facts not pleaded by the Respondent is a misconception of the law, which has occasioned a miscarriage of justice and liable to be set aside.

Referring to paragraphs 8, 9 and 10 of the Appellant?s Amended Statement of Claim, Counsel submitted that the Appellant pleaded that about 30 years ago, in 1986 one Ibrahim Isa trespassed into the farmland given to his late father in Inkil village by the District Head of Tirwun. That the farm land given to his father was a virgin land and it was his late father who first cleared and cultivated on the land. But that the said Ibrahim Isah was claiming ownership of the land. It is submitted that the Appellant?s father sued Ibrahim Isa at Doya Area Court in Bauchi State and title to the farmland was declared in favour of the Appellant?s father. Ibrahim Isa appealed the said

judgment to Upper Area Court Bauchi which dismissed the appeal and affirmed the judgment of Doya Area Court. Exhibit ?PL II? is the judgment of the Upper Area Court Bauchi. Relying on the case of Amobi Vs Nzegwu (2014) 3 WRN 1 at 13, it is submitted that the above evidence having not been challenged or controverted, the lower Court ought to have relied on it.

Submitting further, Appellant?s Counsel said as Ibrahim Isah lost the matter between him and William Sati, the Appellant?s father, he instigated the Respondent?s father to drag the matter with William, his father. When the Respondent could not establish the purported sale transaction between him and Ibrahim Isah, he changed the root of his title to sale transaction between him and Barde Isa and yet failed to prove same.

Referring to paragraph 3 (e) of the Defendant?s/Respondent statement of defence, Counsel submitted that the description of the boundaries given is the same as the land in dispute covered by Exhibit PL II. Appellant?s Counsel contended that the evidence of the Respondent on the ownership of the farmland by the Respondent?s father is

contradictory with regard to proof of purchase of the land. That the claim of the Respondent rests on the fact that his father was a tenant on the land in dispute before he finally purchased it. It is argued that the claim of the Respondent/counter claimant falls under transaction of land under custom and that for such transaction to be valid, the party who relies on same must prove the following:
(a) Payment of consideration;
(b) The transaction must be witnessed by witnesses and
(c) The actual handing over of the land must be done in the presence of witnesses.
The Court was referred to Fatoki vs Baruwa (2012) 14 NWLR (pt. 1319) 1 at 9 R. 13.

Counsel submitted that there is no instrument of purchase either in form of sale agreement or receipt of payment by the Respondent and we are urged to so hold. That there are material contradictions in the evidence of the witnesses of the Respondent in respect of the land in dispute and the sale transaction and the Court cannot pick and choose which of the evidence to act upon. Also that there was no actual handing over of the land in dispute to the Respondent as the Appellant was in actual

possession of the land in dispute from 1950 when the Appellant?s father first cleared the land till the year 2018 when the trial Court awarded half of the land to the Respondent.

Relying on the case of Aiyeola vs Pedro (2014) 13 NWLR (Pt. 1424) 409 at 418, it is submitted that the onus lies on the party who seeks a declaration of title to land and or injunction to establish with certainty and precision and without inconsistency the area of land to which his claim relates. That the measurement of the land in dispute given by the Respondent as about 580 length and 280 width is against the provision of Section 52(1) of the Law of the Federation on exclusive use of metric unit. That based on the material contradictions in the pleadings and testimonies of the Respondent?s witnesses, the Respondent cannot be said to have successfully described the boundaries and the size of the land in dispute as envisaged by law. It is submitted that the Respondent has woefully failed to describe the boundaries of the land in dispute and the decision of the lower Court that the Respondent/counter claimant has proved his case on the strength of his own case has

occasioned a miscarriage of justice, as the totality of his evidence does not support the judgment of the lower Court.

Relying on Anyafulu Vs Meka (2016) 16 WRN 53 at 59 ratio 3, Appellant?s Counsel submitted that the law is that to establish the traditional history of the land relied upon as the root of title, a Plaintiff must prove the names of the founder and those after him upon who the land devolved to the last successor and lead evidence in support without leaving gaps. That the Appellant in paragraphs 5, 6 and 7 of his Amended Statement of Claim narrated how his father and his brothers together with other Angas came to settle in Inkil sometimes in 1950 and how they were taken to the District Head of Tirwun who gave the land to them as a gift. It is contended that the Appellant?s father was the first person who cleared and farmed on the land in dispute. On his demise the Appellant was said to have inherited the land. Referring to the case of Meadows Vs Fabanwo (2014) 8 WRN 96 at 99 ratio 2 on five ways to establish ownership of land, which are:
(1) Proof of traditional history or traditional evidence.
(2) Proof of grant or

production of document of title.
(3) Proof by acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the interference that persons exercising such acts are true owners of the land.
(4) Proof by acts of long possession.
(5) Proof by possession of connected or adjacent land in the circumstances rendering it probable that the owner of such land be the owner of the land in dispute.

Counsel said the Appellant?s claim of title falls on the 1st, 4th and 5th ways of establishing title. That by Exhibit PL II acts of long possession was the main reason why the Area Court and Upper Sharia Court gave judgment in favour of the Appellant?s father.
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It is also the contention of the Appellant that both the Appellant and Respondent?s witnesses testified to the fact that the land in dispute is bounded from the west to the Appellant?s house. That the Appellant?s house has been on the land for more than 65 years as the house was built by the Appellant?s father in 1950 when he migrated to Inkil village. It is submitted that the Appellant has satisfied the requirement of

been in possession of connected or adjacent land as requirement of the 5th way of establishing title which in the circumstance rendering it probable that the owner of such land is the owner of the land in dispute. It is argued that the trial judge refused to properly evaluate the evidence before him. It is finally submitted on behalf of the Appellant that the trial Judge in evaluating the evidence adduced before it excluded all the material contradiction in the evidence of the Respondent and his witnesses and picked the contradiction on the issue of commission shared among the witnesses which is not material. That there is no doubt the testimonies of the witnesses adduced before the trial Court did not support the judgment of the Court. We are urged to allow the appeal and set aside the judgment to the trial Court.

Responding, it is submitted on behalf of the Respondent that the Appellant has failed to prove his claim by any of the required means of establishing title to land. He referred to Aiyeola vs Pedro (2014) 13 NWLR (Pt. 1424) 409 at 413 ratio 1 on the requirement for establishing title to land. In response to the submission of the

Appellant’s Counsel that the trial judge was wrong in rejecting evidence of traditional history provided by the Appellant, it is submitted that the Appellant has a misconception of the law on what is considered as evidence of traditional evidence in proof of title to land. He referred to Ewo Vs Ani (2004) 3 NWLR (Pt. 861) 610 at 618.

In considering whether the evidence of the Appellant qualified as evidence of traditional history, Counsel for the Respondent referred to the evidence of the Appellant when he testified as PW3 and the evidence of PW1 at page 201 of the record. Also referred is the statement of the Appellant on oath in paragraph 3 at page 198 of the record and submitted that the learned trial judge was right in refusing to accept such evidence as evidence of traditional history, because the story that the land was given to the Appellant?s father 70 years ago cannot by any standard qualify as a story beyond human memory and the Appellant could not trace the root of title of the District Head of Tirwun and how the land was founded and by whom. That the capacity under which the land was given to the Appellant?s father was also

not explained and the trial Court was right to dismiss the evidence as hearsay.

Submitting further on the issue of long possession of the Appellant?s father for over 60 years, it is submitted for the Respondent that the Appellant under cross examination denied that his late father had an undisturbed possession for 60 years. He referred to page 320 of the record. Also referred is the record of proceedings of principal District Court Bauchi which is Exhibit PL III which showed that it was from 5th March, 1992-1996 that the Appellant?s father Mr. William Sati was in possession of the land in dispute. When the judgment of the principal District Court was set aside by the High Court on appeal, the Respondent?s father went back to the land and in 1997 the Appellant?s father was granted title to the land. In the year 2015 this Honourable Court set aside the judgment and the matter was remitted back to Court below for re-trial. That the Appellant?s stay on the land was only for 22 years and the Appellant having failed to prove his root of title, the issue of possession of adjacent land goes to no issue as same cannot be resolved in

favour of the Appellant.

Submitting further, that even the land boundering the Appellant?s father from the west was acquired by him due to laches or acquiescence as declared by the Upper Area Court Bauchi in Exhibit PL III at page 147 of the record. That the Respondent?s father never allowed the Appellant?s father to take over and stay on his land throughout and this is what led to series of litigations between the parties including this one on appeal.

On the issue of whether the land in dispute is the same with the land litigated upon between the Appellant?s father and DW3 (Ibrahim Isa), it is submitted that from the pleading of both parties it is not established the land in dispute is the same with the one litigated upon. That on the contrary DW3 Ibrahim Isa has proved vide his evidence on visit to locus that the land litigated upon William Sati, the Appellant?s father is different from the land in dispute. Counsel referred to paragraph 3 (d) of the Amended Statement of Defence of the Respondent at page 214 of the record and his statement on oath at pages 223 -224 of the record. That PW3 the Appellant admitted that DW3

(Ibrahim Isa) has a better knowledge and is in the best position to tell the Court the land he litigated upon with his father. He referred to page 320 of the record and submitted that the evidence of DW3 has not been challenged and urged the Court to hold that the Appellant has failed to prove his case before the lower Court.

It is the contention of the Respondent’s Counsel that the Defendant/counter-claimant Respondent and his witnesses adduced credible evidence to establish his root of title and how he came about the land in dispute. He referred to paragraph 3(b) (c) of the Respondent?s Amended Statement of Defence and paragraphs 5, 6 and 7 – 10 of his statement on oath at pp. 217-218 of the record. Also referred is the statement on oath of DW3 (Ibrahim Isa) in paragraphs 3 ? 7 at pp. 222-223 of the record and submitted that the transaction conducted under customary law were met as the Respondent was able to trace the root of title of Isa?s family which is reflected in the pleadings of the Respondent and evidence of DW3 a grandson of Alhaji Garba, the original founder of the land. The Court was referred to Fatoki Vs Baruwa (2012)

14 NWLR (Pt. 1319) 1 at 9 ratio 13; Ogunyanwo Vs Oluwole (2009) 16 NWLR (Pt. 1167) 319 at 408-409 paras. H-B and Odibendi Vs Okoli (2010) 13 NWLR (Pt. 1210) 45 at 48 ratio 2.

On the alleged contradiction in the evidence of the Respondent, Counsel submitted that the Appellant?s Counsel misrepresented what is contained in the record. That in an attempt to show a perceived contradiction in the evidence of DW1, Counsel only succeeded in pointing to the fact the DW1 who was 80 years old knows the land very well as he was able to differentiate it from the one borrowed to him by Barde Isa. Counsel also referred to the evidence of DW2 which the Appellant?s Counsel alleged that DW2 admitted of not knowing the transaction and submitted that what DW2 said was exactly reflected at page 326 of the record and discerning from the explanation of DW2 that he was a witness to the transaction and also mentioned the remaining witnesses goes to show that DW2 was right when he said DW1 might have forgotten that he was around because DWI was already 80 years old and the transaction took place in 1980 which is over 36 years ago. In contending that the totality of the

evidence of DW1 and DW2 is in tandem with the pleading of the Respondent, it is submitted that the case of Adu Vs Gbadamosi (supra) relied upon by the Appellant is not relevant and we are urged to so hold.

On the contradiction of description of the land in dispute as alleged by the Appellant, Respondent?s Counsel submitted that description or identity of the land is not in contention between the Appellant and the Respondent. That assuming but not conceding that identity of the land is in contention, the purported contradiction referred to by the Appellant?s Counsel is not material and not fatal to the case of the Respondent. He referred to Nwanwko Vs Ofomata (2009) 11 NWLR (1153) 496 at 499 ratio 1 and Taiwo Vs Ogundele (2012) 15 NWLR (Pt. 1322) 57 at 63 where this Court and Supreme Court clearly defined a situation when contradiction in the evidence of witnesses will not be fatal to a case.

Relying on the cases of Cyclops Vs Ibaranyaye (2012) 9 NWLR (Pt. 1305) 213 at 235-236 and Tsemudiara vs Messrs F.G.S & Co. Ltd (2008) 7 NWLR (Pt. 1085) 84 at 88 ratio 5, it is submitted that the position of the law is that where parties are not in

dispute over the identity of the land as subject of litigation, none of the parties would be allowed to raise the issue over the description of the land. We are urged to resolve in favour of the Respondent and affirm the judgment of the lower Court.

This case has a chequered history. This is the second time it came to this Court. In 1986 the Appellant?s father William Sati instituted an action at Doya Area Court, Bauchi against the Respondent?s father Garba Waya in respect of the land in dispute. William Sati was said to have been in possession of the land for over 30 years then, having been granted same by the District Head of Tirwun, while the Respondent?s father claimed ownership of the land through purchase. The Appellant?s father again sued the Respondent?s father for trespass to the farmland before a District Court presided by a Chief Magistrate where judgment was entered in favour of the Appellant?s father which is Exhibit PL III. Series of litigations in this case were initiated by the parents of the parties which continued after their demise by their heirs, with the institution of this action by the Appellant,

subject of this appeal.

It is important to note that the Appellant was claiming the disputed land to belong to his late father and the Respondent was also claiming the disputed property to belong to his late father.

The Appellant instituted this action at the lower Court claiming reliefs set out earlier in this judgment. The Respondent also filed an Amended Statement of Defence and Counter Claim while the Appellant filed a reply to the defence and counter claim.

Before a Court can grant a declaration of title to land, there must be credible evidence describing the identity of the land with certainty. So a Plaintiff who fails to establish and prove boundaries of the land he claims, must fail in his bid as it is the crucial aspect of his case. See Okwaranonobi Vs Mbadugha (2013) 17 NWLR (Pt. 1383) 255 at 278 and Ayuya Vs Yonrin (2011) 10 NWLR (Pt. 1254) 135.

It is the contention of the Appellant’s Counsel that the trial Court was wrong to hold the traditional evidence led by the Appellant and his witnesses as hearsay while relying on facts not pleaded by the Respondent.

In order to establish the traditional history of land relied

upon as the root of title, the Plaintiff must plead the names of the founder and those after him upon who the land devolved to the last successors(s) and also lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been or cannot be explained. The pleadings of devolution and evidence in support must be reliable and cogent, otherwise the claim for title must fail- Pada Vs Galadima (2018) 3 NWLR (Pt. 1607) 436 at 440. See also Eze Vs Atasie (2000) 10 NWLR (Pt. 676) 470.

It is pertinent at this stage to refer to the relevant pleadings of the parties. The Appellant as Plaintiff made the following averments in his Amended Statement of Claim as follows:
1. The Plaintiff and his brother, Maisamari Augustine came and settled in Inkil about 70 years ago and were given lands and farmlands to settle and farm by the then village head of Tirwun of various lands among them, the farmland the subject matter of this suit.
2. The farmland when it was given to the Plaintiff was a virgin land and he was the first person to cultivate and use same. Since then he has been in undisturbed possession and use of

the farmland.
3. The farmland, the subject matter of this suit is well known to the parties, is situated in Inkil village where the Plaintiff resides. From the East the land is boundary with the land of the Plaintiff bought from Mallan Sarkin Aska, from the South boundary with road and behind the road is a land belonging to Alhaji Bature Maitaya, from the North boundary with a river and from the West boundary with the Plaintiff?s house.
4. The Plaintiff avers that when the defendant started the trespass on the land and threat he instituted an action in senior District Court IV Bauchi.
5. Since then the Plaintiff has been in peaceful use of the farmland until 1996 when the judgment of District Court was set aside by the High Court on appeal on ground that District Court lacks jurisdiction to hear the matter.?
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On his part the defendant/Respondent denied the above depositions in his Amended Statement of Defence, claiming that the Plaintiff and his brother Augustine Maisamari were never given any land by the then Village Head of Tirwun as the village head has no land in the entire area of Inkil to give to the Plaintiff/Appellant.

The following depositions in the Amended Statement of defence of the defendant/Respondent read:
1. The Defendant denies paragraphs 3, 4, 5, 6, 7 8, 9 and 10 of the Plaintiff?s Statement of Claim and will put the Plaintiff to the strictest proof of the averment therein.
2. The subject of this suit is bordered from the East by the land of one Musa Guni and his brothers.
3. The Defendant?s father was a tenant on the land and when the family of Alhaji Garba the original owner who founded the land wanted to sell a portion of the land the Defendant?s father bought the land in the sum of N500.00. The Defendant/Respondent?s father used to cultivate yam and maize among other crops at that time.
4. The transaction was conducted between the Defendant?s father and Barde Isa in the sum of N500.00 purchase price and N40 was given as commission to Mai unguwa, Adili, Mai Aiki Amadu, Babale and Adamu Tambele. The transaction was conducted under locus beans (Dorowa) tree inside the land, subject matter of dispute.
5. Since the purchase of the land in 1980 the father of the Defendant has been on the land and has

enjoyed undisturbed possession, cultivating crops like guinea corn, Bambara nut, groundnut, coco yam, sweet potato, tomatoes and pepper.

From the above depositions in the Plaintiff/Appellant?s Amended Statement of Claim, the Plaintiff/Appellant had given history of how he traced his title to the land in dispute, which according to him the land was given to his late father as a virgin land and his father was the first person to clear the land, settled there and had been in possession for over 60 years. The Plaintiff/Appellant claimed that he had been in peaceful use of the farmland until when the Defendant/Respondent trespassed into the farmland and the Plaintiff/Appellant instituted an action against him at the District Court.

The Defendant now Respondent in his pleadings claimed that his father was initially a tenant on the land before he subsequently purchased same. He said the transaction was conducted in the presence of witnesses, and since the purchase of the land in 1980 his father had been on the land and had enjoyed undisturbed possession in cultivation.

In the present situation, the law as stated earlier in this judgment has put

the burden on the Appellant as Plaintiff to prove his claim of declaration of title to land in dispute by leading credible and reliable evidence in support of his pleadings. The Plaintiff/Appellant called two witnesses to testify on his behalf and he testified as PW3. The summary of the evidence adduced by the Plaintiff/Appellant is to the effect that his late father was the owner of the land in dispute being in possession and use of the farm land for over 60 years. That his father and his brothers came to Inkil sometimes in 1950 where his father and his brothers were taken to the District Head of Tirwun and requested for a place to settle. His father was given a virgin land in Inkil village which he cleared and was the first person to settle, cultivate and use same. That since then his father had been in undisturbed possession and use of the land until in 1986 when the Defendant/Respondent trespassed and claimed ownership of the land and the Appellant?s father sued him at Doya Area Court Bauchi which was said to enter judgment in favour of the Plaintiff/Appellant?s father. But the proceedings of Doya Area Court is not before the Court. The

evidence of PW1 and PW2 are ad idem that the Appellant?s father was given the land in dispute by village Head of Tirwun in Inkil village over 70 years ago. That it was the Plaintiff/Appellant?s father who first cleared the land and settled there.

The learned Counsel for the Defendant/Respondent in an attempt to debunk the assertion of the Plaintiff/Appellant that the land in dispute was purchased by the Defendant/Respondent?s father, claimed that the Plaintiff/Appellant has failed to trace the root of title of the said District head of Tirwun and how the land was founded and by whom it was found. That the evidence of the Plaintiff/Appellant?s witness is hearsay because it is what they were told that they narrated to the Court and none of them claimed to be present when the land was given to the Plaintiff/Appellant?s father 70 years ago.

As for the Defendant/Respondent, the summary of his evidence that ventilated through five witnesses including himself is that the land in dispute belonged to his late father which was inherited by his family. That for more than 25 years, he assisted his late father on the farm land. Under

cross examination, he said his late father bought the land from the house of Maikankana Ibrahim in the sum of N500.00. The Respondent testified as DW4. The evidence of DW1, DW2 and DW3 is to the effect that Defendant/Respondent?s father was a tenant on the land before it was sold to him sometimes in 1980. DW1 and DW2 said they were witnesses to the transaction. DW5 is a witness on subpoena.

It appears that both parties rely on traditional history and custom. However it is curious that none of the parties either the Appellant or the Respondent established the root of title through the chain of successors before the land devolved to them. But the trial judge at page 389 of the record in its judgment held:
Now from the Defendant/Counter-Claimant amended statement of defence, the following are the claim of devolution of the land in dispute:
1. Alhaji Garba ? The original founder of the land.
2. After his death; the land passed unto Barde Isah and the entire family of Alhaji Garba.
3. Barde Isa with the consent of the family of Alhaji Garba courtesy of the evidence of DW3 sold part of the land which is now a litigation of

Garba Waya at the rate of N500.00.
I therefore, hold that the Defendant/Counter-Claimant has satisfied the conditions as stated in the case of Anyafula Vs Meka (supra) and Eze Vs Atasie (supra) by pleading the chain of devolution of the land into them without any mysterious missing linkages that cannot be explained.?

At page 212-216 of the record is the Amended Statement of Defence and Counter Claim of the Defendant/Counter Claimant but there are no such facts pleaded by the Defendant/Respondent/Counter/Claimant as held by the trial Court. Counter Claim being an independent claim the Counter Claimant takes the position of a Plaintiff. The Defendant/Respondent who counter claimed on the disputed land must also plead how the land devolved to him which is the requirement of law as held by the Supreme Court in the case of Pada Vs Galadima (supra) and Eze Vs Atasie (supra). This he failed to do.

The Defendant/Respondent even in his Statement on oath at pp. 225-226 did not state the facts as held by the trial judge. The trial judge did not rely on facts placed before him to resolve the issue. Having regard to the facts and circumstances of this

case, it is clear that the learned judge suo motu raised and resolved the issue of devolution in favour of the Respondent. Even if the Respondent has deposed to that fact in his statement on oath, the evidence will go to no issue having not been pleaded. It is an elementary principle of law that evidence on facts not pleaded goes to no issue. Parties are bound by their pleadings. One cannot go outside his/her pleadings but must be confined within. See Atanda Vs Comm. LTH Kwara State (2018) 1 NWLR (Pt. 1599) 32 at 39.
The learned trial judge also at page 376 of the record has this to say with regard to the gift of land to the Appellant?s father:
“The question to be asked first: is on what basis did the village head of Tirwun gave the land to the Plaintiff?s father? Was it part of the stool land within the Chiefdom of Tirwun or it was personal land of the village Head of Tirwun. All these have not been explained by the Plaintiff.? This also was raised suo motu by the trial judge, as parties did not join issue on the kind of gift made to the Appellant?s father.?
I must emphasize that it is the duty of the trial Court to

evaluate evidence generated before it. Where the trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court. See Akinbade vs Babatunde (2018) 7 NWLR (Pt. 1618) 366 at 375; Eze Vs Okoloagu (2010) 3 NWLR (Pt. 1150) 183 and Akinola Vs Oluwo (1962) 1 SCNLR 352. In the instant case the evaluation of evidence by the trial judge was not based on the evidence adduced before him. Although where the trial Court failed to evaluate evidence placed before it, the appellate Court is in a position to review same but the circumstances in this case will not allow me. This is because the case is full of discrepancies. The Appellant claimed to have instituted action against the Respondent at Doya Area Court Bauchi and judgment was entered in his favour. The Appellant relied on this document but the proceedings of the said Doya Area Court was not before the Court. The Respondent subpoenaed DW5, and tendered Exhibit DL I. The Respondent?s Counsel in his submission made heavy weather on Exhibit DL I. The Exhibit is not relevant to this case as the

parties therein are not the same as the parties in this case and the subject matter of dispute therein is not the same as the case at hand. Exhibit PL II is a judgment of Upper Area Court between Ibrahim Isah DW3 and William Sati (late) the Appellant?s father. Ibrahim Isa is not a party in this case but a witness of the Respondent. The trial Court in its judgment at page 366 of the record also referred to a decision contained in Exhibit DL II between Ibrahim Isa and William Sati but Exhibit DL II is also not before the Court and the said Ibrahim Isa is not a party in this case. Because of series of litigations between the parties? parents some of the Court?s proceedings are not available and without the relevant documents before the Court it will be difficult to determine the case. It is on record that the land litigated between the Appellant?s father William Sati and Ibrahim Isa is different from the land in this appeal, then of what significance are both parties making reference to the case in the instant appeal. Moreso when Ibrahim Isa (DW3) is not a party in this case. If Ibrahim Isa is a necessary party to the resolution of this

case he ought to have been joined but he was not. Ironically Counsel to both parties kept making reference to the case litigated between him and the Appellant?s father when the proceedings is not before the Court. The whole case was muddled up and Counsel to both parties did not assist the Court in their briefs. Accordingly, Counsel are advised to improve in their brief writing. It is for these reasons I hold that there is no proper evaluation of evidence in this case. The judgment of the lower Court is perverse. A decision is perverse when it inter alia ignores, overlooks or does not follow a principle of law or procedure which is binding ? Udom Vs Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179 at 226, paras. F.G. See also Igago Vs State (1999) 14 NWLR (Pt. 637)1; Ogbu Vs State (1992) 8 NWLR (Pt. 295) 255 and Ejikeme Vs Okwonkwo (1994) 8 NWLR (Pt. 362) 266.

NWLR (Pt. 1397) 343.

The issue is resolved in favour of the Appellant. The appeal succeeds and it is allowed. The judgment of the trial Court delivered on the 16th day of April, 2018 in suit No. BA/344/96 is hereby set aside. The case be remitted back to the Chief Judge of Bauchi for re-hearing before another judge. Parties to bear the costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the benefit of reading in draft the lead judgment of my learned brother TANI YUSUF HASSAN, JCA just delivered. I agree with his reasoning and conclusion for allowing the appeal. I allow the appeal and set aside the judgment of the High Court of Bauchi State delivered on 16th April, 2018 by A.H. Suleiman, J. in Suit No. BA/344/96.
I abide by the consequential orders.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading before now the leading Judgment just delivered by my learned brother, TANI YUSUF HASSAN, JCA.
I agree with the reasoning and the conclusion reached thereat that the Appeal succeeds and should be allowed.
I also allow the Appeal and abide by the consequential orders contained therein.

Appearances:

Chineye G. N. Esq.For Appellant(s)

S. F. Dashe, Esq.For Respondent(s)

Appearances

Chineye G. N. Esq.For Appellant

AND

S. F. Dashe, Esq.For Respondent