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ABDULLAHI v. ABDULLAHI (2022)

ABDULLAHI v. ABDULLAHI

(2022)LCN/15945(CA) 

In the Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, June 10, 2022

CA/K/02/2019

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ALH. SALE K.T. ABDULLAHI APPELANT(S)

And

ALH. MASA’UDU ABDULLAHI RESPONDENT(S)

 

RATIO

THE BURDEN OF PROOF IN AN ACTION FOR DECLARTON OF TITLE TO LAND

It has been settled over time that a party claiming title to land has the burden of proving his title by credible evidence on the balance of probabilities. He must succeed on the strength of his case and cannot rely on the weakness of the defendant’s case. AKINDURO V. ALAYA (2007) ALL FWLR (Pt.381) 1653, COMMISSIONER FOR LANDS MID-WESTERN STATE V. EDO – OSAGIE & ORS (1973) 6 SC(Reprint) 112. PER WAMBAI, J.C.A.

THE FUNCTION OF THE TRIAL COURT IN EVALUATING THE EVIDENCE OF WITNESSES 

Obviously, the two sides cannot both be correct. One party has to be wrong and the other right. Therein lies the function of the trial Court to ascertain who is right and who is wrong. It is trite that the appraisal and evaluation of oral evidence is the primary duty of a trial Court which is placed at the vantage position of hearing, seeing and observing the deamenour of witnesses as they testify. See NAGOGO V. CPC & ORS (2012) LPELR 15521, MOMOH & ORS V. UMORU & ORS (2011) LPELR 8130 CSO. The trial Judge has the duty to receive admissible evidence, assess the evidence, ascribe probative value to it and make specific findings of fact thereon.
Once this is properly done by the trial Court, an appellate Court has no business to and seldom interferes with the findings or decision of the trial Court except it is shown that the findings/decisions is perverse. KAZEEM V. MOSAKU & ORS (2007) 17 NWLR (Pt. 1064) 523 at AKPAN V. ETIM & ORS (2017) LPELR – 437–8 (CA) ANYANWU V. MBARA (1992) 5 NWLR (Pt. 242) 389.
However, where the evaluation is not based on credibility of witnesses but is based on documentary evidence or other matters of inference to be drawn from established facts on records, the Appellate Court is in as good a position as the trial Court to evaluate or re-evaluate the evidence. See ADELEKE V. IYANDA (2001) 88 LRCN 2162, ADEYE V. ADESANYA (2001) 84 LRCN 644.
PER WAMBAI, J.C.A.

WHETHER OR NOT A PARTY CAN APPROPRIATE AND REPROBATE AT THE SAME TIME ON THE SAME POINT OR ISSUE

It is cardinal principle in litigation that a party should be consistent in the presentation of his case, and in proving same both at the trial and appellate Courts. See AMANA SUITS HOTELS V. PDP (2007) 6 NWLR (Pt. 1031) 453. BABATUNDE V. THE GOVERNING COUNCIL. FED POLYTECHNIC, EDE & ANR (2014). SHEHU V. STATE (2010) 8 NWLR (Pt. 1197) 586.
A party cannot be allowed to appropriate and reprobate at the same time on the same point or issue ADEOSUN V. GOV. OF EKITI STATE (2012) LPELR 7843 (SC). He must be consistent in the manner he builds his case and in proving same. He cannot be permitted on appeal to depart from the foundation of his case either at pleadings or at the lower Court. At all times the party must be consistent in stating his case and consistent in proving it from the trial Court to the Appellate Court. The apex Court deprecated this attitude of inconsistency in the case of GARKUWA PINA V. JAPABA MAI-ANGWA (2018) 15 NWLR (Pt. 1043) 431 at 442, B – C. par Galinge JSC in these words:-
“It is against natural justice and fairness for a person to approbate and reprobate when comforted with similar issue at two or more for a man who is a gentleman should be bound by the words ultered by him”.
It follows that the law does not only frown seriously on a party changing his position from Court to Court or approbating and reprobating as it were between the trial and the appellate Court, but also inhibits the Court from finding in favour of such a slippery person. This point was succinctly made by Oputa JSC in AJIDE V. KELANI (1985) when the law lord stated inter alia:
“A party should be consistent in stating his case and consistent in proving it. …
Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding, to discourse the truth. Justice will never decree anything in favour of so slippery a customer as the present defendant/appellant.”
This is so because an appeal is not a fresh action but a continuation of the case put forward in the Court of first instance. See OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt. 114) 172.
PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice A.A. Bawale of the Malumfashi Division of Katsina State High Court in suit NO. KTH/MF/4/15 which entered judgment in favour of the Respondent by declaring title to the disputed land in his favour against the Appellant.

The Respondent as plaintiff before the lower Court on behalf of himself and the estate of late Alh. Abdullahi Jikan Tsalhe (karambaninka), claimed against the Appellant and one Ibrahim Abdullahi as 1st and 2nd Defendants respectively.
(a) A Declaration that the house situate at Behind Kankara Dispensary near Late Jobe Lawal Natata house at Kankara where the 1st Defendant resides is part of the Estate of late Alh. Abdullahi Jikan Tsalhe (Karambaninka) left behind by the deceased and a fortiori subject of inheritance by his heirs which also include the 1st defendant.
​(b) A declaration also that the house at Kankara situate at Bayan Hospital Baban Hayan Zuwa Gidan Sarkin Pauwan at Kankara where the 2nd Defendant resides is also part of the estate of late Alh. Abdullahi Jakan Tsalhe (Karambaninka) left behind by the deceased and a fortiori subject of inheritance by his heirs which also include the 2nd defendant.

In the course of trial the 2nd defendant, Ibrahim Abdullahi, conceded the claim and consent judgment was entered against him on 26/04/2016.

In proof of his case against the Appellant, the Respondent called four witnesses and tendered one Exhibit, Exhibit 1 and its English translation as Exhibit 1A. The Appellant rendered three witnesses including himself as Dw1. At the end of the trial, the learned trial Judge reviewed the evidence of both parties, considered the written addresses of Counsel and came to the conclusion that the Respondent proved his case against the Appellant and accordingly entered judgment in favour of the Respondent granting all the Respondent’s reliefs.

Displeased with the judgment, the Appellant commenced this appeal by a notice of appeal filed on 17th October, 2017 through his Counsel, M.S. Muhammed Esq, predicted upon two grounds.

In his brief of argument filed on 23rd March, 2020 but deemed on 12/12/2020 learned Counsel for the Appellant nominated a solitary issue for determination, to wit;
Whether the Respondent as plaintiff had established his claim as required by law.

In the Respondent’s brief of argument settled by A.A. Olagoke Esq and filed on 10/12/2020, which was deemed argued pursuant to Order 19 Rule 9 (4) Court of Appeal Rules 2021, at the hearing of the appeal on 5/4/2022, two issues were nominated for determination, namely:-
(1) Whether the Respondent proved his case on balance of probability before the Court below to entitle him to judgment (raised on ground 1 of the appeal).
(2) Whether the Appellant can avail himself the defence of Hauzi (prescription) which was not specifically pleaded as defence in his statement of defnece.

I will utilize the Respondent’s 1st issue with modification for succinctness, as the sole issue in the determination of this appeal.

The issue as recast reads:
ISSUE FOR DETERMINATION
“Whether the Respondent proved his case and is entitled to judgment having regards to the principle of Hauzi”

APPELLANT’S SUBMISSION
Arguing the appeal and contending that the Respondent failed to prove any of his twin claims, viz; (1) that the house in dispute belongs to their late father (including the Appellant), Abdullahi karambaninka or (2) that the Appellant was only granted temporary permission by their said late father to reside/live therein thereby making the house subject of inheritance, learned Counsel referred to the evidence of the Respondent’s witnesses to submit on the first claim that all the witnesses testified that they do not know and could not say how their late father came about the house in dispute but merely rely on speculation or conjecture that since they were born and brought up in the house, it must have belonged to their late father, a fact which he argued, was not pleaded and thus goes to no issue. WEST CONSTRUCTION CO. LTD V. SANTOS M. BATALHA (2006)7 M.J.S.C 184 @190, MOTOH V. MOTOH (2011) 16 NWLR (Pt. 1274) 474 482.

​Moreover, he further argued, their evidence which was that of highly interested witnesses on whose behalf the suit was instituted, was successfully discredited by the unchallenged evidence of a neutral octogenarian, DW2, who stated that the Appellant’s house (house in dispute) is not joined in any way to that of their late father. He also referred to the evidence of DW3 who testified that the two houses are different and distinct.

Counsel thus submitted that contrary to the Respondent’s claim relied upon by the lower Court, the Appellant’s house (the house in dispute) in which the Appellant had lived for over 60 years is different from the house left behind by their father in which the 1st, 2nd and 4th Respondent’s witnesses were allegedly born and brought up.

On the Respondent’s 2nd claim that Appellant was only granted temporary permission to reside in the house, Appellant’s Counsel restated the trite law that the onus lies on the Respondent seeking declaration of title to prove his case who must succeed on the strength of his case and not on the weakness of the defence. ORLU V. GOGO ABITE (2010) 8 NWLR (Pt. 1196) 307, and that none of the Respondent’s witnesses testified that he was a witness to the alleged temporary permission given to the Appellant or tendered or even attempted to tender any document to that effect. On the other hand, Appellant’s three witnesses were unanimous in their unchallenged evidence that the late Abdullahi Jikan Tsalhe (karambaninka), the biological father of both the Appellant and the Respondent had lived and died in his own house, distinct and strategically different from the Appellant’s house in dispute, stating further that it is the evidence of DW2, Sarkin Tasha Saidu Jobe, that it was the then village head of kankara who gave the Appellant the piece of land on which he built the house in dispute and he, (DW2) was one of the people who demarcated the land for the Appellant.

Premised on the fact as contended by the learned Counsel for the Appellant that the Appellant has been enjoying peaceful possession of the house since the colonial period to date, we were invited to apply Section 34(1) of the Katsina State High Court Law, which enjoins the lower Court to observe and enforce the observance of customary law which in this case is the Islamic law of prescription (Hauzi) which makes a blood-related person in possession of property for 40 years to become an automatic owner of the property. He referred to the book of Tuhfatul Hukkam (Jagorar Masu Hukunci) by the former Grand Kadi of Kastina State, Alh. Usman Muhammad Daura at pages 460–467, and the case of FALEYE V. DADA (2016) SCNJ 84 @ 92 in urging us to allow the appeal and set aside the judgment of the lower Court the Appellant having established ownership of the house.

RESPONDENT’S SUBMISSION
Responding per contra and submitting on his issue one that the Respondent proved his case that the house in dispute belongs to the late father of both the Appellant and the Respondent and his witnesses, learned Counsel contented that all the four witnesses for the Respondent unanimously testified that the house belongs to their late father. He referred in particular to the testimony of PW1, Alh. Abdullahi, who is a germane brother to the Appellant who also testified in support of the Respondent that the house in dispute belongs to their late father and not to the Appellant and that the learned trial Judge had no difficulty in so holding.

Learned Counsel also referred to the later position of 2nd Defendant Ibrahim Abdulllahi who conceded the Respondent’s claim and had consent judgment entered against him as lending credence to the Respondent’s case. He invited us to compare the Respondent’s case with the Appellant’s contradictory claims at one breath that the land on which he built the house in dispute was a gift to him by their late father and at another breath that it was a gift by one Jobe Alh. Gambo, the then District Head of Kankara more so that his attempt to tender a document to that effect was rejected the implication of which is that the Appellant had no land on which to build the house.

On his issue 2, it was contended that the principle of prescription, of long possession, known in Islamic Law as ‘’Hauzi’’ having not being specifically pleaded or setup in the Appellant’s statement of defence at the lower Court, same cannot avail the Appellant as such defences based on jurisdiction, estoppel, statute-barred, laches, acquiescence etc must be pleaded in order to ensure fair hearing to the other side as required by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He cited the case of ISAAC V. IMASUEN (2016) 1 SCNJ 256 @ 261 and argued that the lower Court rightly held at page 51 of the record on the authority of UDE V. CHIMBO (1998) 12 NWLR (Pt. 578) 169, 172-173 that the defendant who did not plead prescription as his root of title cannot later rely on the defence. The learned trial Judge, learned Counsel submitted, did not therefore breach Section 34 (1) of the High Court Law of Katsina State by not applying the principle of prescription (Hauzi) neither does the book of Tuhfatul Hukkam (supra) cited by the Appellant’s Counsel nor the case of Faleye vs. Dada (supra) apply to the present appeal, urging us to dismiss the appeal with substantial cost and to affirm the judgment of the Court below.

RESOLUTION OF APPEAL
The Appellant and Respondent as well as Respondent’s witnesses, PW1 and PW2 are all siblings, being children of late Alhaji Abdullahi Karambaninka. Upon the demise of their father, the Respondent as plaintiff on behalf of his other siblings instituted suit No 20/2015 against the Appellant and one Ibrahim Abdul Doguya as defendants at the Upper Sharia Court Kankara for recovery of possession of the houses occupied by the defendants for the purpose of distribution of the estate of their deceased father.

​The Appellant denied the Respondent’s claim. The Court referred the matter to the Sharia Court Kankara where the estate of the deceased were initially distributed for confirmation of whether the property had been distributed and if not distributed, to the lower Court for a determination of the question of title to the disputed land, hence the institution of suit No. KTH/MF/4/15 at the lower Court leading to this appeal.

The crux of the issue therefore is whether the house in question forms part of the estate of late Alh. Abdullahi Karambaninka to be shared by his heirs including the Appellant or as claimed by the Appellant, the house belongs to the Appellant and therefore outside the properties to be shared.

It has been settled over time that a party claiming title to land has the burden of proving his title by credible evidence on the balance of probabilities. He must succeed on the strength of his case and cannot rely on the weakness of the defendant’s case. AKINDURO V. ALAYA (2007) ALL FWLR (Pt.381) 1653, COMMISSIONER FOR LANDS MID-WESTERN STATE V. EDO – OSAGIE & ORS (1973) 6 SC(Reprint) 112.

​In support of his case, the Respondent fielded four witnesses and tendered through PW3 a copy of the record of proceedings of the Upper Sharia Court, Kankara in Hausa and English languages as Exhibits 1 and 1A respectively.

They testified in unison that the house in dispute in which they were born and brought up belongs to their late father Alh. Abdullahi Karambaninka and that the Appellant and his family live in the house at the pleasure of their late father. They refuted the Appellant’s claim that the land was given to him as a gift by their late father. PW1, Alh. Abdullahi, who is a germane brother to the Appellant (of same parents) and a consanguine brother to the Respondent while refuting the Appellant’s claim of ownership of the house in dispute stated that as at the year 1965 when the Appellant was to get married it was their father who erected a room for the Appellant in the house in dispute in which the Appellant still lives (the house in dispute). That prior to that time, both himself (PW1) and the Appellant used to sleep in a waiting room/parlour. He maintained in cross-examination that he had not heard of any gift of the land made by the village Head of Kankara Jobe or by their late father to the Appellant.

​On the other hand, it is the evidence of the witnesses for the Appellant that the plot of land on which the Appellant built the house in dispute was a gift to the Appellant by the village Head of Kankara, Jobe, since the colonial period which gift was supported by a document. That the Appellant built the house before he got married and had lived and continue to live in it with his family after the marriage for over 50 years unchallenged and that the Appellant’s house in dispute is separate and distinct from the house of their late father. An attempt to tender the document purportedly evidencing the gift was objected to and sustained by the Court and the documents were marked rejected D1 and D2 (the Hausa and English translated version respectively).

Obviously, the two sides cannot both be correct. One party has to be wrong and the other right. Therein lies the function of the trial Court to ascertain who is right and who is wrong. It is trite that the appraisal and evaluation of oral evidence is the primary duty of a trial Court which is placed at the vantage position of hearing, seeing and observing the deamenour of witnesses as they testify. See NAGOGO V. CPC & ORS (2012) LPELR 15521, MOMOH & ORS V. UMORU & ORS (2011) LPELR 8130 CSO. The trial Judge has the duty to receive admissible evidence, assess the evidence, ascribe probative value to it and make specific findings of fact thereon.
Once this is properly done by the trial Court, an appellate Court has no business to and seldom interferes with the findings or decision of the trial Court except it is shown that the findings/decisions is perverse. KAZEEM V. MOSAKU & ORS (2007) 17 NWLR (Pt. 1064) 523 at AKPAN V. ETIM & ORS (2017) LPELR – 437–8 (CA) ANYANWU V. MBARA (1992) 5 NWLR (Pt. 242) 389.
However, where the evaluation is not based on credibility of witnesses but is based on documentary evidence or other matters of inference to be drawn from established facts on records, the Appellate Court is in as good a position as the trial Court to evaluate or re-evaluate the evidence. See ADELEKE V. IYANDA (2001) 88 LRCN 2162, ADEYE V. ADESANYA (2001) 84 LRCN 644.

In the instant case, the learned trial Judge appraised and evaluated the evidence on record and found that the witnesses for the Respondents were unanimous that the house in dispute belongs to their late father Alhaji Abdullahi Karambaninka. He also found that as the Appellant predicated his claim of gift of the disputed piece of land to him by the Village Head of Kankara, Jobe, on a document of gift which document was rejected in evidence, the Appellant thus failed to tender any evidence to support the alleged gift to satisfy the requirement of the law that a party relying on a document in proof of his title to land must tender the said document in evidence.

The lower Court also found that the Appellant maintained double standard with regards to the root of title. That while he claimed at the upper Sharia Court Kankara that the land was given to him by his late father, he maintained at the lower Court that it was the village Head of Kankara, Jobe, who gave him the piece of land. He therefore preferred the evidence for the Respondents to that of the Appellant and held that the Appellant cannot rely on acts of possession having failed to prove his root of title.

It is however, the contention of the learned Counsel to the Appellant that the evidence of the Respondent’s witnesses relied upon by the learned trial Judge is speculative, unpleaded and ought to be discarded.

The law is settled as rightly submitted that evidence on unpleaded facts goes to no issue. MOTOH V. MOTOH (supra). CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR (Pt. 289) 512. Admittedly, the evidence that PW1 and PW2 and PW4 were born and brought up in the house in dispute was not specifically pleaded. However, there can be no disputation that the substantiality of the evidence of the Respondent’s witnesses in clear and unambiguous term that the house in dispute belongs to their late father is amply and roundly covered by the pleadings. The Respondent pleaded at paragraphs 5 and 8 of the statement of claim to the effect that the Appellant and the then 2nd defendant came to occupy the houses they live in through the permission given to them by their late father to the end of his life and that their deceased father never made any gift of the houses to the Appellant and to the then 2nd defendant by any document or in the presence of any witnesses. Of course, the Appellant denied their averment at page 5 of the statement of defence.

​The fact that in their evidence in proof of the pleaded facts PW1 and PW2 went further to state that they were born and brought up in the disputed house does not derogate from, cancel or defeat the substance of their evidence on the pleaded fact that the house belongs to their late father. Their evidence is centered on the fact that the house in dispute to their knowledge belongs to their late father. That the core and the material fact upon which their evidence and the Respondent’s case is based, as pleaded. 

After all, evidence that goes to no issue and should be discarded is evidence that is at variance with or contrary to the pleadings and not evidence that supports and explains or expansiates the pleaded fact.
Evidence is said to be at variance with the pleadings when the evidence is different from or is in disagreement or in disharmony with the pleaded fact. Similarly, evidence is said to be contrary to the pleadings when the evidence conflicts with the pleadings and states exactly the opposite of the pleadings.

In the case at hand, the evidence in question said to be at variance with or contrary to the pleadings only supports the pleadings and expatiates the pleaded facts. The piece of evidence only furnishes the details of the pleaded facts in line with the elementary rule of pleadings that only material facts and not the evidence by which the facts are to be proved are permitted to be pleaded.

In the light of the foregoing exposition, the submission of the Appellant’s counsel that reliance on the said alleged “unpleaded” evidence occasioned a miscarriage of justice is untenable. This is so because even assuming the said evidence is discarded there shall exists sufficient admissible evidence on record in proof of the pleaded fact to sustain the finding that the house in dispute belongs to the late father of the parties.

It must also be remembered that the business of an appeal Court is to decide whether the decision of a trial or intermediary appellate Court was/is right and not what its reasons were. See AYENI ORS V. SOWEMIMO (1982) 5 SC 6 at 73–74. If the decision or finding is right a wrong reason for the decision or the finding does not entitle the party complaining to the reversal of the judgment. The learned Appellant’s counsel cannot therefore justifiably argue that the reliance on the evidence of the Respondent’s witnesses occasioned a miscarriage of justice.

The further contention of the learned Counsel for the Appellant that the house in dispute being different and distinct from that of their late father by the evidence of DW2 and DW3, the lower Court ought to have acceded to the request of Appellant’s Counsel for a visit to the house, is also feeble, untenable and cannot fly having regards to the state of the pleadings. The identity of the house in dispute was not an issue at pleadings. The house in dispute as described by the statement of claim is the house where the Appellant “resides”.

At paragraph 3 of the statement of claim, it was pleaded that the house in dispute is as described in the endorsement to the writ of summons.

The house in dispute was described in the endorsement of the declaration sought contained in writ at paragraph 1 (a):-
“A declaration that the house at Kankara situate at Behind Kankara Dispensary near late Jobe Lawal Natata house at Kankara where the “1st Defendant (Appellant herein) resides is part of the estate of late …. “

The Respondent’s evidence as PW4 at page 32 of the record also describes the house in dispute as: –
“The house is situated in Kankara town close to a Dispensary in Kankara town along road leading to the palace of the Sarkin Pauwa, the District Head of Kankara… The House is south of the Dispensary and West of Jobe House… The house belongs to our deceased father who owned the house and on whose permission the 1st defendant (Appellant herein) resides in the said house…”

The identity of the house in dispute as well described by the writ and the evidence of PW4 was not in doubt. The house in dispute was the house as described in the pleadings as the house in which the Appellant resides, and has been residing.

PW4 maintained in cross-examination.
“The only house I know the 1st defendant resides is the house in dispute that belongs to our late father. The 1st defendant had been residing in the House since 1960”.

It was therefore not necessary for the lower Court to conduct locus in quo to determine the house in dispute.

Conversely, the Appellant’s claim at the upper Sharia Court as shown in Exhibit 1A and rightly held by the learned trial Judge is that the piece of land upon which the house in dispute was built was a gift to the Appellant by his late father. When the claim was refuted by the Respondent and the Court ordered the determination of the question of title to the disputed house in a competent Court, the Appellant like a chameleon changed his claim of gift of the land to him by his father to a gift of the same piece of land to him by the village Head of Kankara, Jobe, in 1951. 

It is cardinal principle in litigation that a party should be consistent in the presentation of his case, and in proving same both at the trial and appellate Courts. See AMANA SUITS HOTELS V. PDP (2007) 6 NWLR (Pt. 1031) 453. BABATUNDE V. THE GOVERNING COUNCIL. FED POLYTECHNIC, EDE & ANR (2014). SHEHU V. STATE (2010) 8 NWLR (Pt. 1197) 586.
A party cannot be allowed to appropriate and reprobate at the same time on the same point or issue ADEOSUN V. GOV. OF EKITI STATE (2012) LPELR 7843 (SC). He must be consistent in the manner he builds his case and in proving same. He cannot be permitted on appeal to depart from the foundation of his case either at pleadings or at the lower Court. At all times the party must be consistent in stating his case and consistent in proving it from the trial Court to the Appellate Court. The apex Court deprecated this attitude of inconsistency in the case of GARKUWA PINA V. JAPABA MAI-ANGWA (2018) 15 NWLR (Pt. 1043) 431 at 442, B – C. par Galinge JSC in these words:-
“It is against natural justice and fairness for a person to approbate and reprobate when comforted with similar issue at two or more for a man who is a gentleman should be bound by the words ultered by him”.
It follows that the law does not only frown seriously on a party changing his position from Court to Court or approbating and reprobating as it were between the trial and the appellate Court, but also inhibits the Court from finding in favour of such a slippery person. This point was succinctly made by Oputa JSC in AJIDE V. KELANI (1985) when the law lord stated inter alia:
“A party should be consistent in stating his case and consistent in proving it. …
Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding, to discourse the truth. Justice will never decree anything in favour of so slippery a customer as the present defendant/appellant.”
This is so because an appeal is not a fresh action but a continuation of the case put forward in the Court of first instance. See OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt. 114) 172.

This fact of the inconsistency in the presentation of the case of the Appellant and in the proof of the case alone is sufficient to preponderate the Respondent’s case over the Appellant’s case and entitles the learned trial Judge to prefer the Respondent’s case to the Appellant’s. Worse still for the Appellant is the inability to successfully tender in evidence the gift document by the village Head of Kankara. Jobe. Having pleaded and relied on a hand written primary document of gift of the land by the village Head but tendered without any foundation a typed primary document, the reason for which the document was rejected by the lower Court thereby knocking off the bottom out of the Appellant’s claim, the learned trial Judge was right to have held that the Appellant did not support his claim on the premise that the law mandates such a person to tender in evidence the document he relies upon. That is the correct position of the law.

On the Appellant’s attempt to resort to long possession, the learned trial Judge rightly stated and applied the law that a party who fails to prove the root of title relied upon cannot fall back to rely on acts of long possession in proof of his title. See UDE V. CHIMBO (1998) 12 NWLR (Pt. 577) 169. NGADIUKWU V. MOGHALU & ORS (2014) LPELR–24 366 (CA).

Learned Counsel also urged us to invoke the Islamic doctrine of “Hauzi” “Prescription” in favour of the Appellant, the Appellant having enjoyed undisturbed occupation/possession of the house with his family for 60 years. This defence, like with all equitable defences, as rightly held by the lower Court and submitted by the learned Counsel to the Respondent, must be specifically pleaded to avail a defendant. In other words, such defences like “Hauzi” cannot be relied upon by a defendant if not specifically pleaded in the statement of defence with the full facts and particulars to put the plaintiff on notice. See ADENIRAN V. ALAO (2001) 12 SCW 337. Indeed the pleadings must include the fact that the plaintiff knowingly and deliberately stood by while the defendant changed his position. EZEKWESILI V. AGBAPUONWU (2003) 9 NWLR (Pt. 825) 337 at 381.Where the defendant as in the instant case fails to plead the defence, it is not open to him to seek to rely on same. See ISAAC V. IMASUEN (supra).
It thus means that the Appellant who did not plead the defence of prescription (Hauzi) cannot take benefit of the presumption of law, as rightly held by the lower Court.

On the whole, we cannot but agree with the lower Court on the basis of the evidence on record that the Respondent proved his case against the Appellant and that the defence of Hauzi does not avail the Appellant. In consequence thereof, the sole issue in his appeal is resolved against the Appellant and in favour of the Respondent. Resultantly, we find no merit in this appeal and accordingly dismiss same and affirm the judgment of the lower Court delivered by Hon. Justice A. A. Bawale on 11th Oct, 2017 in suit NO. KTH/MF/4/2015.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft form, the judgment just delivered by my learned brother A.A. WAMBAI, JCA. 

My brother in the leading judgment has masterfully reviewed and analysed the pleadings and evidence in support thereof before the lower Court and reached the inevitable decision that this appeal lacks merit. I join my brother in agreeing with this decision and adopt same as mine. I also dismiss this appeal and affirm the decision by the lower Court delivered on 11/10/2017 in Suit NO. KTH/MF/4/15.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother, AMINA AUDI WAMBAI, JCA. I agree with the reasoning and conclusion that the lower Court was right in its finding that on the basis of the evidence on record the Respondent proved his case against the Appellant and that the defence of HAUZI does not avail the Appellant.

The appeal lacks merit and it is dismissed. I abide by the consequential order(s) in the lead judgment.

Appearances:

M.S. Muhammed, Esq, For Appellant(s)

A.A. Olagoke, Esq, For Respondent(s)