AKAIKUS v. SAMU (2021)

AKAIKUS v. SAMU

(2021)LCN/15162(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/G/21/2020

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

GWARI AKAIKUS APPELANT(S)

And

SARAKUNA SAMU RESPONDENT(S)

RATIO

DUTY OF APPELLATE COURT WHEN CONSIDERING AN APPEAL FROM THE DECISION OF A LOWER COURT

In the consideration of an Appeal from the decision of an appellate Court such as the lower Court, the duty of this Court is to review the findings of the said Court and decide whether it came to a right decision. Thus, my obligation here is not to re-evaluate the evidence of the parties adduced at the trial Court and to make my own findings thereon. Rather, it is to decide whether the lower Court was right in its decision in the light of its own review of the findings of the trial Court. Traditionally and as a matter of law, an appellate Court should not interfere with the findings of facts of a trial Court except where the findings do not correspond with the evidence before it. In such a circumstance, such findings are described as being perverse. In the case Unity Bank Plc V Abba (2013) LPELR–22890(CA) this Court held – “I am not unmindful of the law that ascription of probative value to evidence led is done by the trial Court who has the obligation of evaluating the evidence led and after having heard the witnesses and observed their demeanour and that appellate Courts are not given to the practice of interfering with the findings of facts made by the trial Court by substituting the findings for those of the trial Court except under certain circumstances such as where the findings of facts is demonstrated to be perverse; see Unity Bank V Bouari (2008) 7 NWLR Pt. 1086 pg.372 and the concurring judgment of Ogunbiyi, J.C.A. as she then was (Now J.S.C.).” See also Dasuki (Rtd) V FRN ELC (2018) 3047(SC) 1; Egbufor V State (2013) LPELR-20688(CA); Unity Bank Plc V Abba (2013) LPELR-22890(CA); Nteogwuile V Otuo (2001) 16 NWLR (Pt. 738) 58. Again, the Supreme Court in Adamu V State (2017) 7 NWLR (Pt. 1565) 459, admonished thus: “Unless the Appellant is able to show that the the said findings are perverse, this Court will not interfere with the concurrent findings of fact by the two lower Courts. The Appellant has failed to advance any special or compelling reasons to warrant such interference by this Court.” See also Iroagbara V Ufomadu (2009) 5-6 SC (Pt. 1) 83; Ojo V Gov. Oyo State (1989) 1 NWLR (Pt. 956) 1. Thus, any decision based on perverse findings will not stand. PER JUMMAI HANNATU SANKEY, J.C.A.

POSITION OF THE LAW REGARDING WHAT CONSTITUTES A PERVERSE DECISION

The apex Court in Abegunde V Ondo State House of Assembly (2015) 4-5 SC (Pt. 1) 1, defined it thus: “In UBN Plc V Chimaeze (2014) LPELR-SC 204/2006 this Court defined what a perverse decision is and how same is treated on appeal thus: “[A] decision of a Court is perverse when it ignores the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such as decision… In the case at hand therefore, the appellant succeeds only if [he] establishes that in its findings in respect of the special and general damages the lower Court has ignored the evidence on record and/or wrongly applied a principle to the evidence. The appellant/cross respondent must establish too that the lapse has occasioned a miscarriage of justice.”
See Atolagbe V Shorun (1985) LPELR-SC.14/1984.” PER JUMMAI HANNATU SANKEY, J.C.A.

WAYS BY WHICH PROVE TITLE TO LAND

The law is long since settled that there are five ways to prove title to land, namely: i. By traditional evidence, ii. By production of documents of title, iii. By the exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the true owner, iv. By acts of long possession and enjoyment of the land, and v. By proof of possession of connected or adjacent land and in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See Anagbado V Faruk (2018) LPELR-44909(SC); Aigbobahi V Aifuwa (2006) LPELR-267(SC); Idundun V Okumagba (1976) 9-10 SC 227. PER JUMMAI HANNATU SANKEY, J.C.A.

BURDEN AND STANDARD OF PROOF PLACED ON THE CLAIMANT IN CIVIL MATTERS

It is also the law that in civil matters, the Plaintiff/Claimant must prove his case on a balance of probability, relying only on the strength of his case, and not on the weakness of the defence, except where the Defendant’s case supports his position -Elf Petroleum Nig Ltd V Umah (2018) 1 SC (Pt. 1) 173. This is even more so where the Plaintiff is seeking a declaration of title. The Respondent, who also counter-claimed for the same farmland, has the same burden and standard of proof. Thus, the decision rendered would be based on which of the two parties proves a better title to the land. PER JUMMAI HANNATU SANKEY, J.C.A.

DUTY OF THE TRIAL COURT WHEN FACED WITH CONFLICTING TRADITIONAL HISTORIES (EVIDENCE)

…the findings of the lower Court are in tandem with the settled principle of law as enunciated in the case of Obasi V Onwuka (supra) 6-7, E-A, where the Supreme Court held – “In considering such evidence a trial Court should always remember that there is inevitably bound [to be] conflict in the traditional stories of the parties. This does not mean that either side is lying. They may both be honest and truthful and yet genuinely mistaken. That is why it is necessary to test each side’s traditional history by reference to facts and acts done in recent years as established by evidence led, in order to see which side ought to be preferred on the basis of probability.” This Court faithfully toed the same line with the apex Court in the case of Uwahianri V Onyemaizu (2017) LPELR-41672(CA) where it similarly held as follows: “The best way to test traditional history is by reference to the fact in recent years as established by evidence, seeking which of the two competing histories is more probable. The rule in Kojo II V Bonsi (supra) is only applicable where the traditional histories (evidence) recounted by the two sides are probable or conflicting or inconclusive, and a recourse is therefore had to other means, like acts of ownership and/or possession to determine which party has better title.” PER JUMMAI HANNATU SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Gombe State sitting in its appellate jurisdiction in Suit No. GM/86A/2018, delivered on March 26, 2020, Coram: Ibrahim Mohammed, J. and Haruna A. Kereng, J. In its Judgment, the High Court, (herein referred to as the lower Court), set aside the Judgment of the trial Upper Area Court 1 Gombe, (herein referred to as the trial Court), delivered on June 26th, 2018 and awarded title to the Respondent herein.

The facts leading to this Appeal are briefly as follows: The Appellant herein was the Plaintiff in a suit filed at the Upper Area Court against the Respondent. The trial Court heard the case as Suit No. GUCA1/GM/GM/CVF1/90C/2017 and gave Judgment in favour of the Respondent. The Respondent herein was peeved by the decision and so, appealed to the High Court vide an Amended Notice of Appeal dated November 20th, 2019. After hearing the Appeal, the lower Court delivered its Judgment wherein it set aside the Judgment of the trial Court and gave Judgment in favour of the Respondent, awarding title to the farmland in dispute to him (Respondent).

The farmland in dispute between the parties is situated at Chuni in Nyuwar. Both parties claimed title by virtue of traditional history through inheritance from their progenitors, and so adduced evidence in line with their respective claims to establish their roots of title at the trial Court.

The Appellant dissatisfied with the decision of the lower Court, with the leave of Court duly sought and obtained, filed his Notice of Appeal dated June 8th, 2020, wherein he complained on six (6) Grounds. Therein, he sought the following reliefs from this Court:
A. “Allow the Appeal.
B. Set aside the Judgment of the lower Court sitting on appeal in Appeal No. GM/86A/2018 delivered on 26th March, 2020, that set aside those of the Upper Area Court No. 1 Gombe in GUAC1/GM/CVF1/48/2017.
C. Restore the well-considered Judgment of the trial Upper Area Court No. 1 Gombe in Suit No. GUAC1/GM/CVF1/48/2017 delivered on 26th July, 2018.
ALTERNATIVELY, strike out the Appellant’s Notice and Grounds of Appeal before the lower Court for incompetence.”

At the hearing of the Appeal on March 1st, 2021, learned Counsel for the Appellant, Emmanuel Nwaekwe Esq., adopted his submissions in the Appellant’s Brief of argument filed on 19-08-20 and the Appellant’s Reply Brief of argument filed on 25-09-20, both Briefs settled by the same Counsel, in urging the Court to allow the Appeal, set aside the Judgment of the lower Court and restore the Judgment of the trial UAC Court.

In response, learned Counsel for the Respondent, J.W. Nimfas, Esq., adopted the submissions in the Respondent’s Brief of argument filed on 17-09-20 and settled by the same Counsel, in urging the Court to dismiss the Appeal and affirm the Judgment of the lower Court.

The Appellant in his Brief of argument distilled the following two issues for determination:
A. “Whether the learned lower Court correctly exercised the judicial power, authority and discretion when it rejected the evidence of the Appellant in favour of those of the respondent. (Grounds 1, 2, 3 and 7)
B. Whether the findings made by the lower Court are not perverse of facts on record of trial Court. (Grounds 4 and 5)”

The Respondent on his part also formulated two issues for determination as follows:
1. “Whether the findings of the lower Court is perverse when it held that the Respondent’s witnesses are more cogent, credible, reliable and believable than those put forward by the Appellant’s witnesses. (Grounds 1, 2, 4 and 5)
2. Whether in view of the evidence on record the lower Court was right to grant title of the disputed land to the Respondent, (Grounds 3 and 7)”

Ground six of the Notice of Appeal which complained of lack of jurisdiction is deemed abandoned, no issue having been distilled there from. However, having examined the two sets of issues for determination vis-a-vis the Grounds of Appeal, I adopt the issues framed by the Appellant in determining the Appeal. The issues shall be addressed together.

ARGUMENTS
In arguing the Appeal, learned Counsel for the Appellant submits that both parties to the suit predicated their root of title to the disputed farmland on original ownership and cultivation of the land. He contends that the finding of the lower Court at page 146 paragraph 3 and page 285 paragraph 2 of the Record of Appeal was contrary to the evidence disclosed in the Record of

proceedings of the trial Court. In substantiation, he referred to the evidence adduced through PW1, PW2, PW4 and PW5 to contend that the Appellant established his claim of title, as well as proved the acts of possession and ownership exercised on the land, to entitle him to Judgment. Counsel submits that the Respondent did not deny the claim of trespass, but merely asserted his ownership of the land. He therefore submits that the Appellant established his case and it was properly evaluated and resolved by the trial Court.

Counsel further submits that the trial Court found as a fact that DW1, DW2, DW3, DW4 and DW5 were present in Court during the proceedings and remained in Court while the proceedings were ongoing, therefore, little weight should be attached to their evidence. He refers to Order 13 Rule 3 of the Area Court Rules which provides –
“The Court shall order witnesses on both sides to be kept out of Court except when they are actually giving evidence.”

The trial Court also found that they were interested parties. He therefore faulted the finding of the lower Court discountenancing this finding.

Counsel contends that the Respondent did not establish long possession. The evidence is that Yasa and Gwari gave Eklisiya permission to build a place of worship inside the farmland and they owned the Mango trees on the land. He therefore submits that the finding of the lower Court on proof by long possession and exercising acts of possession is contrary to the facts adduced in evidence.

Counsel further submits that the finding of the lower Court that the evidence adduced by both sides was hearsay, is perverse. He refers to the evidence of PW1, PW2 and PW5 and contests the several findings of the lower Court thereon. Based on this, Counsel submits that the Judgment of the lower Court is perverse. He urged the Court to resolve both issues for determination in favour of the Appellant, set aside the Judgment of the lower Court and restore the Judgment of the trial Court.

In response, learned Counsel for the Respondent submits that both the Appellant and the Respondent in their respective claims before the trial Court relied on traditional history in proving their respective title to land. Thus, at the trial Court, the case was fought on the strength of traditional history, which is more of hearsay evidence.

Counsel submits that the evidence of traditional history adduced by the Respondent is admissible, cogent, credible and believable. Reliance is placed on Section 66 of the Evidence Act, 2011 and Obasi V Onwuka (1987) LPELR-2152(SC) per Oputa, J.S.C. to submit that traditional history is admissible in evidence. Counsel therefore submits that the lower Court rightly found that the trial Court was wrong to have rejected the evidence of DW1, DW2, DW3 to DW6 as hearsay evidence.

Counsel submits that in addition to the evidence of traditional history adduced by the Respondent which the lower Court found cogent, credible, reliable and believable, it also rightly found that the Respondent supported his traditional history evidence with evidence of recent acts of ownership in recent years – Obasi V Onwuka (supra); Uwahianri V Onyemaizu (2017) LPELR-41672(CA).

Counsel submits that conversely, the traditional history adduced by the Appellant as Plaintiff fell short of the requirement of law as none of the witnesses gave details of the particulars of the intervening owner through whom the Appellant claimed, beside stating that

Kwayawe founded the land (reference is made in particular to the evidence of PW2 and PW4 under cross-examination); and that merely stating the name of the founder of the land is not sufficient. The party must go further to give conclusive traditional history regarding the intervening owners of the land plus various acts of ownership exercised by the party over the years – Opoto V Anaun (2016) 16 NWLR (Pt. 1539) 437, 441.

Counsel further submits that the evidence of PW1 on the intervening owners contradicted the evidence of the Appellant as PW5 on same; while he (PW1) admitted under cross examination that he did not know the boundary witnesses; also, PW3 did not know the occupant of the land in dispute. Counsel contends that none of the witnesses of the Appellant gave a consistent flowing story of recent undisturbed ownership or possession of the land by the Appellant. PW1 – PW5 also did not confirm that it was the Appellant or his predecessor in title or family that gave a portion of the land to LCCN Church or Deeper Life Church, as alleged by the Appellant.

Counsel also submits that Exhibit 1 was made during the pendency of proceedings contrary to Section 83(1) of the Evidence Act, 2011 and so it was wrongly relied on by the trial Court – Anagbado V Faruk (2018) LPELR-44909(SC); Timothy V Okpein (2018) LPELR-44182(CA). In addition, the document does not state that the Appellant or his predecessors owned the said portion of the land in dispute, and the Appellant merely signed the document as a witness to a purported donor, Alkessa Lindawa, who was not mentioned in the claim as one of the Appellant’s predecessors in title.

Counsel submits that the lower Court, after thorough perusal and evaluation of the record of the trial Court, found that the Appellant did not call as a witness any person whom he claimed his family or predecessors in title gave portions of the disputed farmland to build upon or to cultivate. This is particularly in reference to the LCCN Church. Even though, PW5 claimed that he gave the land to LCCN Church and Deeper Life Church, under cross-examination, he backtracked and said it was Amos and his Yasa (his uncle) who gave the land to them. The lower Court highlighted the surprising statement of the Appellant where he stated during examination-in-chief that he is a boundary

neighbour with the land in dispute (page 92 of the Record). This lends further credence to the position of the Respondent in respect of his boundary neighbours. Counsel submits that the conclusion of the lower Court that the trial Court erroneously ignored credible evidence adduced by the Respondent’s witnesses in support of his traditional history of the land was sequel to a thorough evaluation of the Respondent’s witnesses. He referred to and made an analysis of the evidence of DW1, DW2, DW3, DW4, DW5 and DW6, in addition to Exhibit B (a Writ of possession), Exhibit C (an Enrolled Order of the High Court of Justice, Gombe State dated April 6, 2009). He submits that the finding of the lower Court that the evidence of DW1 to DW6 established long period of acts of possession and enjoyment of the land, was also in line with the evidence on Record. Based on this, the lower Court invoked the presumption of law in Section 143 of the Evidence Act (supra). These witnesses also gave conclusive history of the farmland including the genealogical tree of the Respondent’s predecessors.

On the trial Court’s rejection of the evidence of the Respondent’s witnesses on the ground that being the Respondent’s relations, they are interested parties, Counsel submits that this is not in line with Section 66 of the Evidence Act (supra) and the settled position of the law – Odogwu V State (2009) LPELR-8506(CA). He contends that surprisingly however, it accepted the evidence of the Appellant’s witnesses as credible even when PW1, PW2 and PW4 had all testified about their family relationships with each other, as well as with the Appellant. Based on the evidence therefore, Counsel submitted that the trial Court’s findings were perverse. Consequently, the lower Court was right when it held that the trial Court was wrong to have rejected the evidence of the Respondent’s witnesses on the ground of having a family relationship. On the contention that the Respondent’s witnesses were in Court when the Appellant’s witnesses testified, Counsel submits that there is no evidence on the Record to substantiate this wrong and unfounded conclusion of the trial Court.

In respect of the contention that the Respondent had no claim before the trial Court, Counsel submits that where there is a claim for an injunction coupled with trespass, title to the land becomes automatically an issue which the Court must resolve – Regd. TECWA V Gov. Jigawa (2012) All FWLR (Pt. 642) 1728; Yakubu V Impresit Bakolori Plc (2011) All FWLR (Pt. 598) 831. In addition, the Respondent denied the claim of trespass which the Appellant failed to prove. Counsel therefore submits that the lower Court rightly granted the Respondent’s counter claim (made at page 64-66 of the Record) as the Respondent proved it. He therefore urged the Court to dismiss the Appeal with costs and affirm the Judgment of the lower Court.

The Appellant’s Reply Brief essential turned on the facts in dispute in the Appeal. It hardly addressed any points of law, except to challenge the applicability, some previous decisions of Court relied upon by the Respondent’s Counsel, and Section 83 of the Evidence Act (supra), to the Appeal.

RESOLUTION OF BOTH ISSUES FOR DETERMINATION
In the consideration of an Appeal from the decision of an appellate Court such as the lower Court, the duty of this Court is to review the findings of the said Court and decide

whether it came to a right decision. Thus, my obligation here is not to re-evaluate the evidence of the parties adduced at the trial Court and to make my own findings thereon. Rather, it is to decide whether the lower Court was right in its decision in the light of its own review of the findings of the trial Court. Traditionally and as a matter of law, an appellate Court should not interfere with the findings of facts of a trial Court except where the findings do not correspond with the evidence before it. In such a circumstance, such findings are described as being perverse.
In the case Unity Bank Plc V Abba (2013) LPELR–22890(CA) this Court held –
“I am not unmindful of the law that ascription of probative value to evidence led is done by the trial Court who has the obligation of evaluating the evidence led and after having heard the witnesses and observed their demeanour and that appellate Courts are not given to the practice of interfering with the findings of facts made by the trial Court by substituting the findings for those of the trial Court except under certain circumstances such as where the findings of facts is demonstrated to be

perverse; see Unity Bank V Bouari (2008) 7 NWLR Pt. 1086 pg.372 and the concurring judgment of Ogunbiyi, J.C.A. as she then was (Now J.S.C.).”
See also Dasuki (Rtd) V FRN ELC (2018) 3047(SC) 1; Egbufor V State (2013) LPELR-20688(CA); Unity Bank Plc V Abba (2013) LPELR-22890(CA); Nteogwuile V Otuo (2001) 16 NWLR (Pt. 738) 58.
Again, the Supreme Court in Adamu V State (2017) 7 NWLR (Pt. 1565) 459, admonished thus:
“Unless the Appellant is able to show that the the said findings are perverse, this Court will not interfere with the concurrent findings of fact by the two lower Courts. The Appellant has failed to advance any special or compelling reasons to warrant such interference by this Court.”
See also Iroagbara V Ufomadu (2009) 5-6 SC (Pt. 1) 83; Ojo V Gov. Oyo State (1989) 1 NWLR (Pt. 956) 1. Thus, any decision based on perverse findings will not stand.

On what constitutes a perverse decision, the law has not left it to conjecture. The apex Court in Abegunde V Ondo State House of Assembly (2015) 4-5 SC (Pt. 1) 1, defined it thus:
“In UBN Plc V Chimaeze (2014) LPELR-SC 204/2006 this Court defined what a

perverse decision is and how same is treated on appeal thus:
“[A] decision of a Court is perverse when it ignores the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such as decision… In the case at hand therefore, the appellant succeeds only if [he] establishes that in its findings in respect of the special and general damages the lower Court has ignored the evidence on record and/or wrongly applied a principle to the evidence. The appellant/cross respondent must establish too that the lapse has occasioned a miscarriage of justice.”
See Atolagbe V Shorun (1985) LPELR-SC.14/1984.”

In the instant Appeal, both parties had litigated over the farmland in dispute at the trial Upper Area Court, Gombe. There, whereas the Appellant herein as Plaintiff had sued the Respondent claiming title to the farmland as well as trespass, the Respondent denied the claim and also laid claim to the ownership of the same farmland. Both parties contended that they inherited the land through their progenitors and traced the

genealogy of their titles to a different founder who, they each assert, cleared the land. Thus, both the Appellant and the Respondent pleaded traditional evidence/history as their modes of proving their title to the farmland in dispute.

The law is long since settled that there are five ways to prove title to land, namely:
i. By traditional evidence,
ii. By production of documents of title,
iii. By the exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the true owner,
iv. By acts of long possession and enjoyment of the land, and
v. By proof of possession of connected or adjacent land and in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See Anagbado V Faruk (2018) LPELR-44909(SC); Aigbobahi V Aifuwa (2006) LPELR-267(SC); Idundun V Okumagba (1976) 9-10 SC 227.
It is also the law that in civil matters, the Plaintiff/Claimant must prove his case on a balance of probability, relying only on the strength of his case, and not on the weakness

of the defence, except where the Defendant’s case supports his position -Elf Petroleum Nig Ltd V Umah (2018) 1 SC (Pt. 1) 173. This is even more so where the Plaintiff is seeking a declaration of title. The Respondent, who also counter-claimed for the same farmland, has the same burden and standard of proof. Thus, the decision rendered would be based on which of the two parties proves a better title to the land.

In the instant case, whereas the trial Upper Area Court gave Judgment in favour of the Appellant as Plaintiff before it, the lower Court, in hearing the appeal from that decision, overturned the Judgment, and awarded the land in favour of the Respondent who had counter-claimed for the land. It found that from the Record of the trial Court, the Respondent adduced cogent, credible and believable evidence when he traced his genealogy from the founder of the land, to those who inherited the land after each of the progenitors, right up to the Respondent himself. On the other hand, it found that the evidence of the Appellant was not cogent, and a proper link was not made from the founder of the land down to the Appellant. It therefore concluded

that it was the Respondent who proved his title to the farmland in dispute. Thus, the question for this Court to answer is: was the lower Court right in its review of the decision of the trial Court leading to the setting aside of the decision of the trial Court, and instead finding in favour of the counter-claim of the Respondent? This is what will occupy this Judgment in the next few pages.

In proof of his claim to ownership of the land by traditional history, the Appellant adduced evidence through five (5) witnesses, including himself as PW5. In turn, the Respondent adduced evidence in defence of the claim, as well as in proof of his counter-claim, through six (6) witnesses. Thereafter, the trial Court visited the farmland in dispute. At the close of trial, the trial Upper Area Court found that the Appellant by his evidence, had proved his claim for title; while it rejected the totality of the evidence of the Respondent’s witnesses on the ground that it constituted hearsay evidence. The trial Court also discountenanced the evidence of the Respondent’s witnesses on the ground that they were family relations of the Respondent and so were

considered interested parties; and further justified his action on the ground that they were present in Court when the Appellant’s witnesses were testifying.

From the facts on Record, the parties know the land in dispute, so the identity of the contested farmland is not in dispute. As aforesaid, both parties separately claim that their ancestors were the founders of the land, and that it was passed through their progenitors down to them. Thus, the case at the trial Court leading to this Appeal was fought on the strength of competing acts of traditional history. The Appellant’s story as it relates to his traditional history of ownership, and that of the Respondent, is as stated by both of them in detail at pages 62-66 of the Record. They gave their detailed genealogies commencing from their respective founders right up to their possession and ownership.

Both parties also testified in Court as PW5 and DW5, and each of them recounted their genealogies in an effort to establish their entitlement to ownership of the land. They both called witnesses to buttress their testimonies. In analyzing the evidence on both sides, whereas the trial Court

dismissed the Respondent’s evidence with a wave of the hand on the basis that it was hearsay evidence, the same character of evidence presented by the Appellant was accepted wholesale by the trial Court as credible evidence of title.

Upon a review of the evidence vis-a-vis the findings of the trial Court, the lower Court disagreed with the lower Court’s evaluation and assessment of the evidence as follows (at page 278-279 of the Record):
“… the trial Court’s record will reveal that the dispute/case between the parties was fought on hearsay upon hearsay. Now in considering the two histories the trial Court in its judgment at page 87 line 26 – page 88 line 1-4 stated thus:-
“Based on the foregoing explanation if the statement of the plaintiff and that of the Defendant are to be measured it will be realized that the Plaintiff’s witnesses are more heavier in weight than that of the Defendant in proving the statement of claim in which all the parties could be relied upon. One will realize that there is low weight of evidence as a result of much hearsay evidence by the side of the Defendant.”
It can

be seen from the above quoted portion of the trial Court’s judgment that it rejected the evidence of the Appellant’s witnesses because same was hearsay evidence. However, as earlier noted the parties’ case/claim and evidence were based on traditional history and thus the evidence of both sides was hearsay evidence. Evidence of traditional history is stipulated for in Section 66 of the Evidence Act 2011… Thus, predicated on this section the nature of evidence of traditional history and its admissibility makes it an exception to hearsay evidence. Thus, it was wrong for the trial Court to have without more rejected the evidence of the Appellant’s witnesses because same was hearsay.”

I cannot fault this finding of the lower Court in any way. Section 66 of the Evidence Act (supra) provides that –
“66. When the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is admissible.”
Consequently, evidence given in proof of traditional history is an exception to the hearsay rule. This is because, in order to meet with

the requirement of the law in respect of proof of title by means of traditional history, a party is required to give evidence in respect of the founder of the land and the succeeding progenitors, right up to the party laying claim to ownership of the land. This invariably means going back in time to a time beyond human memory which is sometimes referred to as “time immemorial”. This character of evidence is therefore acceptable, as was rightly pointed out by the lower Court. The trial Court was therefore patently wrong to have rejected the evidence adduced by the Respondent contending that it was hearsay, since traditional evidence is, by its very nature, hearsay as it is history which transcends human memory – Nteogwuile V Otuo (2001) LPELR-2071(SC); Sogunro V Yeku (2017) (Pt. 1570) 297.
Indeed, the Supreme Court per Oputa, J.S.C. in Obasi V Onwuka (1987) LPELR-2152(SC) held –
“Traditional evidence is nothing but hearsay removed from the hearsay [rule] and elevated to the status of admissible evidence by a statutory provision of Section 44 of the Evidence Law Cap. 49 of the Eastern Nigeria applicable to this case …”

Indeed, even the trial Court was aware of this and that explains its reason for accepting the evidence of traditional history laid out by the Appellant. The mystery is that it (trial Court), still proceeded in the same breath, to reject the same character of evidence, i.e., hearsay evidence, of traditional history offered by the Respondent. This amounted to applying a double standard to the case of the parties before it, and this led to its making perverse findings. Thus, the lower Court rightly rejected these findings of the trial Judge.

Thereafter, the lower Court proceeded to review and consider the two accounts of traditional history presented by the Appellant (as Plaintiff before the trial Court), and that of the Respondent,(as Defendant before the trial Court), and to weigh them on an imaginary scale. From pages 280 to 283 of the Record of Appeal, a detailed analysis and evaluation was made of the evidence of traditional history adduced first by the Appellant therein (Plaintiff before the trial Court) through PW1, PW2, PW3, PW4 and PW5; and secondly, that of the Respondent therein (Defendant) adduced through DW1 to DW6.

After which the lower Court concluded as follows at pages 282 to 283 of the Record:
“In our view, the above mentioned acts carried out by the Appellant’s predecessors relating to the disputed farmland are evidence of acts of ownership exercised by the said predecessors/ancestors of the Appellant at recent times over the same farmland to warrant the interference that they are the true owners of the disputed farmland. Thus, it is clear that a careful perusal of the two competing histories of the parties presented during the trial will disclose that the Appellant/defendant supported his traditional history with evidence of recent acts of ownership in recent years. The Respondent as Plaintiff had no such evidence and he did not controvert the said evidence adduced by the Appellant/Defendant. The trial Court was therefore in error when it rejected the evidence of the Appellant/defendant’s traditional history.”

Based on the evidence as disclosed in the Record of Appeal, these findings cannot be impugned. It is true that the evaluation of evidence and ascription of probative value is the province of the trial Court. However, where a

trial Court fails to take advantage of its seeing and hearing the witnesses first hand, an appellate Court will be well-placed to examine the facts as disclosed in the Court Record to evaluate the evidence and make its findings thereon. This is what the lower Court has commendably done.

In addition to finding that the evidence of traditional history adduced by the Respondent was more cohesive than that of the Appellant, the lower Court also identified evidence of recent acts of possession exercised by the Respondent over the land as recounted by his witnesses as follows: DW1 was put in possession of a portion of the land by the Respondent and had been on the land for 37 years; DW2 testified that the Respondent’s family gave LCCN Church the land upon which they erected a Church building since the year 2000, i.e. 17 years before the Appellant instituted the suit at the trial Court; DW4, a Reverend with the LCCN Church testified as to how, when he was Secretary of the Church, the Appellant’s family in 1999 showed him the portion of the land where they erected a Church building; DW5, the Respondent himself, testified as to how he had been in

undisturbed possession, had engaged in series of litigation over the land, and his predecessors in title successfully reclaimed Locust beans harvested from economic trees on the farmland; and DW6 testified that he was put on the farmland by the predecessor to the Appellant 37 years ago.

From all the above, the findings of the lower Court are in tandem with the settled principle of law as enunciated in the case of Obasi V Onwuka (supra) 6-7, E-A, where the Supreme Court held –
“In considering such evidence a trial Court should always remember that there is inevitably bound [to be] conflict in the traditional stories of the parties. This does not mean that either side is lying. They may both be honest and truthful and yet genuinely mistaken. That is why it is necessary to test each side’s traditional history by reference to facts and acts done in recent years as established by evidence led, in order to see which side ought to be preferred on the basis of probability.”
This Court faithfully toed the same line with the apex Court in the case of Uwahianri V Onyemaizu (2017) LPELR-41672(CA) where it similarly held as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The best way to test traditional history is by reference to the fact in recent years as established by evidence, seeking which of the two competing histories is more probable. The rule in Kojo II V Bonsi (supra) is only applicable where the traditional histories (evidence) recounted by the two sides are probable or conflicting or inconclusive, and a recourse is therefore had to other means, like acts of ownership and/or possession to determine which party has better title.”

The lower Court therefore, rightly in my view, accepted these pieces of evidence as against that of the Appellant, which were random and impugned/controverted under the crucible of cross examination. Therefore, it was less credible than the cohesive evidence adduced by the Respondent through his witnesses.

In addition, the Appellant has again challenged the findings of the lower Court wherein it accepted the evidence of the Respondent’s witnesses. He contends, as did the trial Court, that the Respondent’s witnesses were interested parties because they were relations of the Respondent, and so their evidence should be discountenanced. This however is not in tandem with the settled position of the law, and the lower Court rightly set aside the trial Court’s finding on this.

It goes without saying that, where parties elect to prove title via the mode of traditional history, it becomes inevitable that those who may have proper knowledge of such history from time immemorial may be family members, as well as others who may have benefited from the benevolence of predecessors who were family members. To exclude family members from the category of competent witnesses would therefore be ridiculous, and the law has not imposed such an unreasonable restriction on any party.
It is even more incongruous as a proposition considering the fact that some of the witnesses called by the Appellant expressly admitted that they had a family relationships to each other, as well as to the Appellant. See the evidence of PW1, PW2 and PW4. It was this which led the lower Court to observe as follows at page 288 of the Record –
“Thus, it is clear that the Respondent/Plaintiff’s witnesses are not only related to each other, but are related to him. The trial Court did not consider them as interested

parties but instead wrongly described the witnesses of the Appellant as interested parties. The trial Court did not show from the evidence before it that the Appellant’s witnesses were motivated by personal interest in their testimony… The trial Court was therefore wrong to have described them as interested witnesses, thereby using this reason as the basis of rejecting their testimonies.”
I could not agree more. This is undoubtedly the purport of Section 66 of the Evidence Act (supra) already referred to and set out earlier in this Judgment. Thus, the law allows oral evidence of family members or community members in proof of traditional history.
For a further affirmation of this settled position of the law, the case of Odogwu V State (2009) LPELR-8506(CA) is pertinent. Therein, this Court, relying on a decision of the apex Court held –
“The competence of witnesses generally is provided for in Section 155(1) of the Evidence Act. It provides:
“All persons” shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them or from giving rational

answers to those questions by reason of tender years, extreme old age, whether of body or mind or any other cause of the same kind.”
“All persons” here include those who are even interested in the matter. In Yusuff V NTC Ltd (1977) 6 SC at 41; (1977) 1 NSCC 349 at 351, the Supreme Court held that it was wrong for the learned trial Judge to reject the evidence of the two witnesses called by the defendant merely because they were officials of the defendant and therefore interested parties.” (Emphasis supplied)
Based on the above, I agree with the lower Court that the findings of the trial Court which run counter to the evidence adduced before it, were perverse. That being the case, the lower Court was right when it interfered with the decision because it is perverse and cannot be supported having regard to the evidence. See Unity Bank V Kwara Chemical Co. Ltd (2019) LPELR-48468(CA) 38-42, B-C. Atolagbe V Shorun (1985) 1 NWLR (Pt. 2) 380.

Finally, on the contention that the evidence of the Respondent’s witnesses was rejected by the trial Court because they were in Court when the Appellant’s witnesses testified,

this can only go to the weight to be attached to the evidence, and so should not have led to an outright rejection of the evidence on this ground. This is even more so that the contention is not borne out by the Record of the trial Court. Thus, I again endorse the finding of the lower Court thereon, discountenancing this submission.

Therefore, in the light of all the above, I agree with the lower Court that, contrary to the findings of the trial Court, the evidence adduced by the Respondent through his witnesses was more cogent, credible and believable than those put forward by the Appellant. Consequently, the Respondent, having expressly counter-claimed for title to the same farmland at the trial Court, was entitled for Judgment entered to be in his favour. Based on all my findings above, I resolve both issues for determination against the Appellant.

In the result, I find no merit in the Appeal. It fails and is dismissed.
Accordingly, the Judgment of the High Court of Justice, Gombe State sitting in its appellate jurisdiction, in Suit No. GM/86A/2018 delivered on March 26, 2020, is hereby affirmed.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading before now the draft of the erudite judgment of my learned brother JUMMAI HANNATU SANKEY, J.C.A..
I entirely agree with the reasoning and conclusion therein.
I also hold that this appeal lacks merit. The Respondent is entitled to the judgment rightly entered in his favour.

This appeal lacks merit as all issues are resolved against the appellant. I affirm the judgment of the High Court Gombe in its appellate jurisdiction in Suit No GM/86a/2018 delivered on 26th March, 2020 in the circumstance.

EBIOWEI TOBI, J.C.A.: My learned brother J. H SANKEY, J.C.A. afforded me the privilege of reading in draft the lead judgment just delivered. My lord in the said judgment has adequately identified and addressed the issues involved in this appeal. I agree with the reasoning and the conclusion reached therein.

The Appellant was the Claimant in the Court of first instance been the Upper Area Court while the Respondent was Defendant. Both parties are laying claim the same parcel of land which makes the issue of the identity of the land settled and therefore of no issue at all. In the Upper Area Court, the Appellant

as Plaintiff laying claim to the land relied on traditional history. The Respondent in this appeal also relying on traditional history filed a counter-claim. The Upper Area Court accepted the traditional history of the Appellant in deciding the case in favour of the Appellant. The Respondent appealed to the lower Court been the High Court of Gombe State which overturned the decision of the trial Court. The lower Court gave title of the farmland to the Respondent. The Appellant in this appeal has appealed to this Court. What all this shows is that there is no concurrent finding of facts from the trial Court and the lower Court. This makes the job of this Court more pronounce on actually finding out which of the findings of facts is correct before it.

My lord, in the lead judgment after looking at the evidence in the record of appeal came to the conclusion that the lower Court was right in accepting the traditional evidence of the Respondent. This I also agree with. The implication of that is that the Respondent in the evidence at the lower Court has stated the name of the founder of the farmland, how it was founded and how the farmland moved from the

founder to each intervening owner till it got to the Respondent. The family tree of intervening owner must not only be a roll call of the genealogy of the family but a genealogy which relates to the ownership of the farmland. This must not be broken in anyone just like a 4 x 100 relay race. In this respect, I will just cite a case or two. In Awodi & Anor vs. Ajagbe (2014) 12 SC (Pt. 1) 76, the apex Court in driving home this point held:
“… the law is now settled 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 title and the names and history of his ancestors. He should lead evidence to show same without leaving any yawning gap.
A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a claimant. See Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386; Akinloye v. Eyiyola (1968) 2 NMLR 92; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 and Odi v. Iyala (2004) 4 SCNJ 35 at 54.
Further, the weakness of the defendant’s case in a land matter touching on declarations, does not assist the plaintiffs case. He sinks or floats with his case. See the case of Animashaun v. Olojo (1990) 10 SCNJ 143.”

In the same judgment, Ngwuta, J.S.C. in his contribution was clearer on this point. His lordship held as follows:
“In a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following:
(1) The person who founded the land and exercised acts of possession.
(2) How the land was found, and
(3) The persons on whom the title to the land devolved from its founder to the plaintiff. See Obioha v. Duru (1994) 10 SCNJ 48 at 61 Ratios 6 and 7, Piaro v. Tenalo & Ors (1976) 12 SC 31. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. See Eze v. Atasie (2000) 6 SCNJ 209 at 218, Elias v. Omo-Bare (1982) 5 SC 25. The plaintiff must rely on his pleading, he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160.”

I also agree that the Respondent has pleaded and proved traditional history as the means of proving title.
For the reason stated above and for the fuller reasons contained in the lead judgment of my learned brother J. H. Sankey, J.C.A., I also dismiss this appeal as lacking in merit. The judgment of the lower Court in Suit No: GM/86A/2018 delivered on 26/3/2020, coram: Ibrahim Mohammed J and Haruna A. Kereng J is also affirmed by me.

Appearances:

Emmanuel Nwaekwe, Esq. For Appellant(s)

W. Nimfas, Esq. For Respondent(s)