ALHAJI ISAH BACHIRAWA v. ALHAJI SHEHU ABDULLAHI (2016)

ALHAJI ISAH BACHIRAWA v. ALHAJI SHEHU ABDULLAHI

(2016)LCN/8387(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/K/299/2014

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

ALHAJI ISAH BACHIRAWA Appellant(s)

AND

ALHAJI SHEHU ABDULLAHI Respondent(s)

RATIO

EVIDENCE: PLEADINGS AND EVIDENCE: THE POSITION OF THE LAW ON WHETHER PLEADINGS CAN BE IN VARIANCE WITH EVIDENCE OR VICE VERSA
It is known that pleadings must not be at variance with the evidence or facts led or vice versa. Nevertheless, it must not be exact but must necessarily conform and be connected thereto each other. In GIDADO v. LAWAL (2014) LPELR-22903(CA), the Court noted:
“It is trite that whatever evidence a party adduced in a trial commenced by a Writ of Summons, it must conform with his pleading filed in the proceeding. In other words, the evidence is circumscribed by the pleaded facts before the trial Court. A party is incapacitated in law to lead evidence that is contrary to his averments in his pleading.” PER. UWANI MUSA ABBA AJI, J.C.A.

PRACTICE AND PROCEDURE: THE AWARD OF GENERAL DAMAGES; WHETHER IT IS AT THE DISCRETION OF THE TRIAL COURT TO AWARD GENERAL DAMAGES AND WHEN THE APPELLATE COURT CAN INTERFERE
The award of general damages is at the discretion of the trial Court, and where such discretion has been exercised both judicially and judiciously, an appellate Court will be loath to interfere therewith. An appellate Court will therefore not upset an award of damages except where it is shown that the award had been based on wrong principles of law or that the amount awarded is too high or too low to make it an entirely erroneous estimate of what the plaintiff is entitled to. See IHEANACHO v. UZOCHUKWU (1997) 2 NWLR (Pt. 487) 257, ODIBA v. AZEGE (1998) 9 NWLR (Pt. 566) 370. PER. UWANI MUSA ABBA AJI, J.C.A.

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court, holden at Kano in suit No. K/138/2012, delivered on 31/3/2014 by Hon. Justice Dije Aboki, wherein the Claims of the Respondent for declaration of title were granted.

The Respondent’s Claims at the lower Court against the Appellant vide the amended Statement of Claim dated and filed on 20/2/2013 contained at pages 61-64 of the records were as follows:
1. A Declaration of this honourable Court that the Plaintiff is the rightful owner of the said plot of land lying and situate at Bachirawa in Ungogo Local Government Area of Kano State.
2. A declaration that the act of the defendant constitutes a trespass into the land of the Plaintiff and as such is illegal, unconstitutional, null and void.
3. A perpetual injunction against the Defendant from committing further or other acts of trespass into the land of the Plaintiff either by himself, agents, servants and privies or any other person by whatsoever name called or claiming through him from trespassing into the land.
?4. General

damages of N500,000.00.
5. Cost of this action.

The case for the Respondent as gathered from the evidence of the Respondent (PW1) and his vendor (PW2) are that the PW2 sold the plot of land to the Respondent on 25/11/87 and a sale agreement was executed between them. That the PW2 handed over the title documents to the Respondent which are the sale agreement between PW2 and his vendor one Hajiya Hadiza (Yargoggo) who was his aunt and the sale agreement between PW2’s vendor and the original owner one Alhaji Ibrahim Dala. That the plots were merged and sold to PW2 as one. Both PW1 and PW2 stated the boundaries of the plot in their written witness statement on oath. That PW2 had peaceful possession of the plot since he bought same in 1993. That in 2011 when the Respondent wanted to develop the plot, he was prevented from doing so by the Appellant and some other people claiming that the plot belongs to the Appellant.

?On the side of the Appellant, the case for the Appellant is that the Appellant bought the said plot from one Ibrahim Mailittafi for about three years as at the time the Appellant gave evidence. That the Appellant vendor bought the plot

from one Alhaji Isa Maishanu and the plots were two which the Appellant bought at the sum of N1,500,000.00 (One Million Five Hundred Thousand Naira). That before the Appellant bought the plot, he made inquiry and found that Ibrahim Mai Littafi has good title. That after he bought the plots, he took control and six months after, the Respondent came in company of some people to claim title. That the issue was taken to the ward head of Bachirawa, the area where the plot is and both himself and the Respondent presented their documents of title. That the ward head made inquiries and discovered the person whom the Respondent’s title derived from i.e. Ibrahim Dala and called a meeting with the said Ibrahim Dala who refused the Respondent’s claim that he sold the land to Hadiza Umaru or the PW2, Respondent’s vendor. At the trial, the Respondent testified and called one witness and tendered Exhibits while the Appellant testified and called 2 witnesses. At the conclusion of the case, judgment was entered in favour of the Respondent.

?The Appellant, dissatisfied with the said judgment, appealed vide a Notice of Appeal dated and filed on 2/5/2014, wherein 8 Grounds of

Appeal were raised as hereinunder reproduced without their particulars:
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial Judge erred and misdirected herself when her lordship found and held as follows:
“It is correct that Exhibit A states the plot in question as two. It is however in evidence that the two plots of land were merged as one and sold to the PW2 plaintiff’s vendor…”
GROUND TWO:
The learned trial judge erred and misdirected herself when her lordship found and held as follows:
“?As argued by the plaintiff’s counsel the exact measurement of the plot sold to the plaintiff was clearly stated in his evidence and that of PW2 and none of that is challenged. I see no contradiction on this point but a discrepancy one that is not material to result discrediting the evidence of the PW1 and PW2?”
GROUND THREE:
The learned trial Judge erred in law and misdirected herself on facts when her lordship held thus:
“? Also I do not find as argued by the defendant’s counsel that Exhibit A varies from the averment of the statement of claim as to render it irrelevant?”
GROUND FOUR:<br< p=””

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The learned trial Judge erred in law when her lordship held:
“? Learned counsel to the defendant further contended that the plaintiff has failed to prove how Ibrahim Dala the person whom the plaintiff traced his root got his title? In response to this issue, learned counsel to the plaintiff contended that a wrong law was cited by defendant’s counsel? the principle only relates to proving title through traditional history i.e. tracing a person’s title through ancestral root and it does not apply to the plaintiff’s case whose title is by purchase and production of title document. Reliance was placed on the case of ISEOGBEDUN v. ADELAKUN? Clearly from the above holding of the Supreme Court in the case cited, the plaintiff is not required to prove how his original title holder got title since his claim is not founded on traditional history.”
GROUND FIVE:
The learned trial Judge erred and misdirected herself on fact when her lordship finds:
“? the issue of identity of the land did not arise as they are clearly referring the same land and it is trite

that where the identity of a land is clear and certain, the need for a plaintiff to prove the identity of the land by means of extrinsic material such as a survey plan is dispensed with?”
GROUND SIX:
The learned trial judge erred in law and misdirected herself when after finding that the Respondent herein has abandoned his reply to the Appellant’s statement of defence which raises new issues of facts yet it granted plaintiff/respondent’s reliefs’ thereby occasioned miscarriage of justice to the Appellant.
GROUND SEVEN:
The learned trial Judge erred in law when her Lordship held:
“While clearly Exhibit C is not a deed since it does not appear so on the face of it nor was it executed as one, however, I am of the view that it falls under the definition of an instrument as contained in the definition given in the Oxford Dictionary of Law 6th Edition cited by the defendant’s counsel in his reply on points of law. This is because Exhibit C being a sale agreement executed by buyer and seller is a form of conveyance of the land in question to the buyer by the seller. Therefore having been made over 20 years ago, the presumption under

Section 162 of the Evidence Act 2011 applies and I so hold.”
GROUND EIGHT:
The learned trial Judge erred in law when her lordship held:
“On the whole based on credible evidence adduced before me, I find that the plaintiff has proved his claim of title to the land in question on the preponderance of evidence and is entitled to reliefs one, two and three as contained in his statement of claim? I awarded damages for trespass against the defendant in favour of the plaintiff in the sum of N30,000,00?” thereby occasioned miscarriage of justice to the Appellant.

In accordance with the Rules of this Court, the Appellant filed his Brief of argument dated 24/6/2014 and filed on 25/6/2014, settled by Musa A. Aliyu, Esq., wherein he formulated 5 issues for the determination of the appeal to wit:
1. Whether the learned trial judge was right when his lordship held that Exhibit A is not at variance with the Respondent’s Statement of claim? (Distilled from ground 3).
2. Whether the learned trial judge was right when his lordship held that Exhibit C is a form of conveyance which acquires presumption under Section 162 of the Evidence

Act 2011? (Distilled from ground 7).
3. Whether based on pleadings and evidence led by the Respondent herein and PW2 at the lower Court, the exact measurement and identity of the plot sold to the Respondent was established by credible evidence? (Distilled from grounds 2 and 5).
4. Whether the learned trial judge was right when his lordship held that the Respondent herein and Plaintiff at the lower Court is not bound to prove root of his title having regards to the fact that he acquired the plot through purchase? (Distilled from ground 4).
5. Whether based on the totality of pleadings and evidence led, the Respondent has proved his case by credible evidence to warrant the trial Court to grant the reliefs he sought? (Distilled from grounds 1, 6 and 8).

The Respondent filed his Brief of argument dated 10/3/2015 but deemed properly filed on 19/3/2015; settled by M. S. Garba, Esq., wherein he formulated an issue as follows and adopted issue 5 of the Appellant:
1. Whether from the totality of the evidence before the lower Court and the findings there from the Appellant has shown any good reasons for this Honourable Court to reverse the

judgment before it.

At the hearing of the appeal on 22/2/2016, the learned Counsel to the Appellant adopted his Brief of argument and prayed this Court to allow the appeal while the learned Counsel to the Respondent adopted his Brief and urged the Court to dismiss the appeal.

I shall formulate an issue for the determination of this appeal thus:
Whether by the evidence and the Exhibits tendered, the Respondent has not proved the title to the land.

It is the Appellant’s submission that the trial Court was wrong to hold that Exhibit A is not at variance with the Respondent’s Statement of Claim wherein it shows that the Respondent bought two plots of land and not one from one Alhaji Shehu Abdullahi. It is submitted that such decision is not borne out of the pleadings, hence speculative, perverse and inconsistent. He relied on OSUJI v. EKEOCHA (2009) ALL FWLR (Pt. 490) 614, LAGGA v. SARHUNA (2009) ALL FWLR (Pt. 455) 1617, ALLIED BANK (NIG) LTD. v. AKUBUEZE (1997) 6 NWLR (Pt. 509) 374 AT 396 PARAS D-E, OLAYINKA v. STATE (2007) 9 NWLR (Pt. 1040) P.561.

Again, it is submitted that the trial Court was wrong to hold that Exhibit C is a form of

conveyance under Section 162 of the Evidence Act, 2011, but rather a sale agreement incapable of transferring interest in land, hence inadmissible. He relied on AKINDURO v. ALAYA (2007) 15 NWLR (Pt. 1057) 312, ATUNRASE v. PHILLIPS (1996) 1 NWLR (Pt. 427) 637.

On the exact measurement and identity of the land, the Appellant has submitted that in declaration of title, the onus is on the plaintiff to succeed on the strength of his case and not on the weakness of the defendant’s case. He cited DANJUMA v. TERENGI (2011) 6 NWLR (Pt. 1244) P.542, AUTA v. IBE (2003) 13 NWLR (Pt. 837) P. 247, ONOBURUCHE v. ESEGINE (1936) 1 NWLR (Pt. 19) P. 799. He contended that the person claiming title must prove precisely the identity of the land in issue. He quoted AREMU v. ADETORO (2007) 16 NWLR (Pt. 1060) 244 AT 257 PARAS C-H. He settled that the evidence of PW1 is contradictory and should not be relied upon. He cited ANYAWALE & 3 ORS. v. ATANDA (1988) ALL NLR P.24 @ P. 38, EZEMBA v. IBENEME (2000) 10 NWLR (Pt. 674) P.61 @ P.74 PARAS B-C. He argued that the decision of the trial Court that the two plots were merged together is not borne out of evidence, neither was it

pleaded. He cited NEPA v. OSOSANYA (2004) 1 SC (Pt. 1) 159, U.B.N. v. OZIGI (1994) 3 NWLR (Pt. 333) @ P.402 PARA B, ADEYERI v. OKOBI (1997) 6 NWLR (Pt. 510). His submission is that where identity of the land is not proved with certainty, the claimant’s case must be dismissed. He cited OTANMA v. YOUDUBAGHA (2006) ALL FWLR (Pt. 300) PARAS E-F.

Further, that it is on the Respondent to prove root of title by leading credible evidence. He relied on OLOHUNDE v. ADEYOJU (2000) 10 NWLR (Pt. 676) 562, AKINOLA v. OLUWO (1962) ALL NLR 1 SCNLR, MOGAJI v. CADBURY NIGERIA LTD. (1985) 2 NWLR (Pt. 7) P.393. He maintained that the Respondent did not prove how the original owner or Ibrahim Dala got his title as against the case of ISEOGHEDUN v. ADELEKUN (2013) ALL FWLR (Pt. 664) relied upon by the trial Court. It is submitted that aside the 5 ways of proving title to land in ADISA v. OYINWOLA (2000) 10 NWLR (Pt. 674) P.116 AT P.116 @ P. 178 PARAS F-G, the title of the original owner must be proved. He relied on OLOHUNDE v. ADEYOJU (supra). That the position taken by the trial Court that the Respondent needed not to prove radical title since his case is not founded on

traditional history is erroneous. He relied on IBRAHIM COUNCILLOR JIMLARI v. JAURO SANTI TIPPI (2010) LPELR-4356, BAMGBOYE v. OLUSOGA (1996) 4 NWLR (Pt. 444) 520. He submitted that where a plaintiff claims damages for trespass, he must show that he was in exclusive possession of the land. He relied on AMAKOR v. OBIEFUNA (1974) 3 SC 67, AVASE v. ARASE (1981) 5 SC 33, IDESOH v. ORDIA (1997) 3 NWLR KODILINYE v. ODU (1953) 2 WACA 336. Thus, that you cannot put something on nothing and expect it to stand. He cited MACFOY v. UAC (1961) 3 ALL E.R.

The learned Counsel to the Respondent however has submitted that the trial Court was right to hold that Exhibit A was not at variance with the Respondent’s Statement of Claim. That Exhibit A is a proof that a transaction took place and it does not need to be identical in words with the pleadings. Thus, before evidence is said to be at variance, it must be material, He relied on OSUJI v. EKEOCHA (2009) ALL FWLR (Pt. 490) 614 AT 662 PARAS G-H. He argued that the decision of the trial Court is not speculative as same was founded on evidence. He relied on LAGGA v. SARHUNA (2009) ALL FWLR (Pt. 455) 1617, OLAYINKA v. STATE

(2007) 9 NWLR (Pt. 1040) P.561.

Again, he submitted that the trial Judge was right to hold that
Exhibit C “…is a form of conveyance of the land in question to the buyer by the Seller” by virtue of SECTION 162 OF THE EVIDENCE ACT 2011. Also, that Exhibit C is both an instrument, relevant, connected to it and can be used to prove other facts like sale transaction, the parties, the price and subject matter. He relied on ELEGBE v. BABALOLA (1968) 1 ALL NLR 347 AT 351 PARAS 35-40, AKINDURO v. ALAYA (2007) 15 NWLR (Pt. 1057) PAGE 312 AT 339 PARAS D-E, BABALOLA ONI v. SAMUEL ARIMORO (1973) ALL NLR PT. 1 AT 189.

It is the Respondent’s Counsel’s submission that although the Plaintiff must prove his case on the strength of his evidence, he is allowed to rely on the evidence of his adverse party where it supports his case. He cited BAMIKOLE v. OLADELE (2011) ALL FWLR (Pt. 562) 1699 AT 1716 PARAS A-B. On the identity of the land, he argued that it is not in issue. Besides, that the Appellant as DW3 admitted the plot to be same with that alleged to be in dispute; hence, he is estopped from raising it on appeal. He cited MALGWI v. SONG (2012) ALL FWLR (Pt.

624) PAGE 43 AT 55-56 PARAS E-B. Furthermore, that there is no material contradiction in the evidence of the Respondent as held in ANYAWALE & 3 ORS. v. ATANDA (1988) ALL NLR P.24 AT P.38 to make the evidence of PW1 materially inconsistent. He also relied on SHELL PETROLEUM DEVELOPMENT CO. LTD. v. AMARO (2000) 10 NWLR (Pt. 675) PAGE 248 AT 270 PARAS G-H.

It is also submitted that the trial Judge was right to hold that there was no need to prove radical title since the case was based on purchase and not traditional history as in ISEOGBEKUM v. ADELAKUN (2013) ALL FWLR (Pt. 664) P.168 AT 187 PARAS D-F. He submitted that the case of IBRAHIM COUNCILLOR TIMLARI v. JAURO SANTI TIPPI (2010) LPELR 4356 is not applicable here. Thus, that the Respondent has proved the title of his vendor to Ibrahim Dala whose ownership is not in dispute. He relied on OTANMA v. YOUDUBAGHA (2006) ALL FWLR (Pt. 300), 1579 AT P.1595 PARAS E-G, BAMGBOYE v. OLUSOGA (1996) 4 NWLR (Pt. 444) 520. He contended that the Respondent has by production of title document proved his title to the land as one of the known ways of proving title to land. He cited BELLO v. SANDA (2012) ALL FWLR (Pt.

636) PAGE 462 AT 475 PARAS D-E. He submitted that there is connection between Exhibits A, B & C as they all support paragraphs 3, 5 & 6 of the amended statement of claim.

Counsel also maintained that the award of general damages is within the precinct of the trial Court. He relied on TAYLOR v. OGHENEOVO (2012) ALL FWLR (Pt. 610), PAGE 1358 AT 1377 PARAS D-E. He settled that the mistakes (if any) have not occasioned any miscarriage of justice to the Appellant to warrant a reversal of the judgment. He relied on UGURI v. STATE (2013) ALL FWLR (Pt. 694) 1 AT 21-22 PARAS G-A, FYNEFACE v. FYNEFACE (2007) 9 NWLR (Pt. 1040) PAGE 601 AT 607 PARAS G-H, NWAVU v. OKOYE (2008) 12 M.J.S.C. PAGE 28 AT 46 PARAS A-8. He prayed this Court to resolve this issue in his favour, dismiss the appeal and affirm the decision of the trial Court.

Exhibit A herein is contained at page 91 of the records. It is the contention of the learned Counsel to the Appellant that Exhibit A is at variance with the Respondent’s Statement of Claim. This is because that while in the pleadings of the Respondent, the disputed land was referred to as a “piece of land”, the said Exhibit A

refers to it as “Two (2) plots”. The contents of Exhibit A at page 91 reads
“I Alhaji Badamasi, have sold to Alhaji Shehu Abdullahi my two (2) plots at Rijiyar Lemo at the cost of Naira 100,000. He has paid in the presence of?”

This is the most lean and feeble argument to canvass in a suit for declaration of title to land. There is every evidence to show that the two lands sold to the Respondent are same, bounded together and having being merged and sold according to its measurement in feet. The trial Court did not waste time on this when at page 103 from line 3 held that:
“It is correct that Exhibit A states the plot in question as two. It is however in evidence that the two plots of land were merged as one and sold to the PW2 plaintiff’s vendor.”

It is known that pleadings must not be at variance with the evidence or facts led or vice versa. Nevertheless, it must not be exact but must necessarily conform and be connected thereto each other. In GIDADO v. LAWAL (2014) LPELR-22903(CA), the Court noted:
“It is trite that whatever evidence a party adduced in a trial commenced by a Writ of Summons, it must conform with his pleading

filed in the proceeding. In other words, the evidence is circumscribed by the pleaded facts before the trial Court. A party is incapacitated in law to lead evidence that is contrary to his averments in his pleading.”

Similarly, it is indeed laughable that the Appellant stated that there was material contradiction in the evidence of PW1 when he stated that the said land is “measuring about 100 ft width by 75ft depth” instead of 75 ft by 100 ft as asserted in paragraphs 4.49-4.50 of his Brief. What the Appellant’s Counsel seeks here is an impossibility in the rules of pleadings and evidence led. There is absolute correlation, relationship, connectivity and conformity of Exhibit A with the pleadings of the Respondent at pages 62-63 of the records especially paragraphs 3-4 thereof.

There is also the argument on the status or import of Exhibit C as a form of conveyance recognized under Section 162 of the Evidence Act, 2011. Exhibit C is a “SALE AGREEMENT FOR PURCHASE OF PLOT AT BACHIRAWA-UNGOGO” contained at page 95 of the records executed on 23/2/1983 and pleaded at paragraph 6 at pages 62-63 of the records in the amended statement of claim of the

Respondent. This suit was filed by the Respondent on 20/12/2013 as contained at page 61 of the records. It is thus clear that before the filing of this suit, the contract of the sale of the land in dispute is well over 20 years. In fact, it is about 30 years old. Section 162 of the Evidence Act, 2011, provides thus:
“Recitals, statements and descriptions of facts, matters and parties contained in deeds, instruments, Acts of the National Assembly, or statutory declarations, twenty years old or more at the date of the contract in which such deed, instrument or other document is sought to be relied upon shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”
In construing Section 162 of the Evidence Act, 2011 (in pari materia with Section 129 of the Evidence Act, 2004), Per NNAEMEKA-AGU, J.S.C., in OWOADE v. OMITOLA (1988) NWLR (Pt. 77) 413, said:
“As the section clearly states, the presumption arises with respect to recitals, statements, etc which were twenty years old at the date of the contract, not those that were twenty years old at the date

of the proceedings.”
See also JOHN KOBINA JOHNSON & ORS. v. IRENE AYINKE LAWANSON (1971) 1 ALL N.L.R. 56 AT P.66, SANYA v. JOHNSON (1974) 1 ALL N.L.R. 1981 AT 207. In CARDOSO v. DANIEL (1986) 2 NWLR (Pt. 20) 1, it was held that Section 162 of the Evidence Act, 2011 applies:
“? to cases (such as those between vendors and purchasers) where documents of title have to be proved to satisfy the obligations of a party under a contract to the other party under that contract? It may of course bewilder a lawyer that in order to secure the benefit conferred by the section he has to relate his deed or instrument to a contract, but to construe the section without advertence to a contract or, worse still, to substitute ‘present legal proceedings’ for the word ‘contract’ which manifestly dominates the section, seems to us perverse.”
Also, in DAISI v. OLOTO (2012) LPELR-8561(CA), it was held that:
“Besides all the documentary evidence relied upon as establishing the title of the Respondent to the land in dispute are all over twenty years of age and as such the presumption of due execution and correctness of their contents enure in his

favour… Exhibits B and C are conveyances which show the plaintiffs/Appellants root of title. They were executed in 1959 and 1967 well over 20 years before proceedings commenced in this case. The presumption is that the documents supra are genuine.”
See also AYANWALE v. ODUSANMI (2012) VOL. 3 WRN PAGE 1 AT PAGE 15 LINES 33-36. I utterly agree and align myself with the trial Court’s decision at pages 111-112 from line 15 on the status of Exhibit C when it held thus:
“While clearly Exhibit C is not a deed since it does not appear so on the face of it nor was it executed as one, however, I am of the view that it falls under the definition of an instrument? This is because Exhibit C being a sale agreement executed by the buyer and seller is a form of conveyance of the land in question to the buyer by the seller. Therefore, having been made over 20 years ago, the presumption under Section 162 of the Evidence Act, 2011 applies and I so hold.”

The trial Judge has dealt so much on the issue of the identity of the land. Whatever I may say will boil down to repetition. Nevertheless, I must say that both the Appellant and the Respondent have

clearly identified the land with their boundaries which happen to be the same in dispute. The Respondent at page 62 in paragraph 4 has fully described the land and same corroborated by the testimonies of PW1 at paragraph 3 of page 68 and PW2 at paragraph 5 of page 70 of the records respectively. Furthermore, the Appellant in his Statement of Defence at page 41 at paragraph 10 of the records equally described and identified the land. It is no doubt that the descriptions and identities given by the 2 parties certainly touch on same piece of land in dispute. It follows therefore that the identity or certainty of the measurement of the boundaries of the land in dispute is not in issue here. In ENYINNAYA v. OTIKPO & ANOR (2015) LPELR-25529(CA), this Court per Mbaba, JCA, held that the “issue of identity of land cannot arise where the parties clearly knew the land they were talking about…” See also ANYANWU v. UZOWUAKA (2009) 13 NWLR (Pt. 1159) 445 AT 476.

It has been hotly argued by the learned Counsel to the Appellant that the Respondent did not prove how the purported original owner or Ibrahim Dala got his title. I think that this position taken by the

Appellant’s learned Counsel is most dangerous and cannot be sustained in proving title to land other than by traditional history. Of course, the correct position is that laid down by the Apex Court in ISEOGBEKUM v. ADELAKUM (2013) ALL FWLR (Pt. 664) P.168 AT 187 PARAS D-F as rightly relied upon by the trial Court. Indeed, the Respondent cannot be asked or required to prove how his original title holder got his title since his claim is not founded on traditional history. This is the position of the law and I so hold.
Aside the 5 legally recognized ways and methods of proving title to land held in IDUNDUN v. OKUMAGBA (1976) 9-10 SC 223, carrying out searches on land before purchase which is a guard to the principle of “caveat emptor” which means “Buyer beware”, asking for more investigation beyond the title of he that has obtained a valid title is to go beyond proving title to land to the role of the Police or SSS in crime investigation. While the Respondent has tendered documents to prove his title to the land, the Appellant presented nothing and could not also by traditional history prove a better title than that of the Respondent. In WEST AFRICAN COTTON

LTD. v. YANKARA (2008) ALL FWLR (Pt. 402) 1192 AT 1204-1205 PARAS H-A, this Court held:
“The production of title document is one of the recognized methods of proving title to land. But such a document to evidence title must be admissible in evidence and must be of such a character as to be capable of conferring valid title on the party relying on it.”
See also IDUNDUN v. OKUMAGBA (1976) 1 ALL NLR 200, (2002) 20 WRN 127, PIARO v. TENALO (1976) 12 SC 31, DABO v. ABDULLAHI (2005) ALL FWLR (Pt. 255) 1039, (2005) 29 WRN 1. Moreover, I have not spotted any material contradictions in the evidence of the Respondent’s witnesses to warrant the judgment of the trial Court being tampered with.

It is pertinent to note that the Respondent at page 63 of the records pleaded at paragraphs 9-10 of his amended Statement of Claim to the effect that he suffered financial loss and damage to his repute through the act of trespass and denial of access to his plot wherein he sought for general damages of N500,000.00 in relief 4 of his claims. Consequently, the trial Court precisely at page 112 lines 7-9 awarded the Respondent the sum of N30,000 damages for trespass

against the Appellant. This has therefore impelled the Appellant to cry foul. The award of general damages is at the discretion of the trial Court, and where such discretion has been exercised both judicially and judiciously, an appellate Court will be loath to interfere therewith. An appellate Court will therefore not upset an award of damages except where it is shown that the award had been based on wrong principles of law or that the amount awarded is too high or too low to make it an entirely erroneous estimate of what the plaintiff is entitled to. See IHEANACHO v. UZOCHUKWU (1997) 2 NWLR (Pt. 487) 257, ODIBA v. AZEGE (1998) 9 NWLR (Pt. 566) 370.

The Supreme Court in YALAJU-AMAYE v. A.R.E.C. LTD (1990) NWLR (Pt. 145) 422 held that “It is well settled law that general damages is the kind of damage which the law presumes to now flow from the wrong complained of. They are such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See LAR v. STIRLING ASTALDI LTD. (1977) 11/12 S.C. 53, OMONUWA v. WAHABI (1976) 4 S.C. 37. I am of

the firm view and belief that the award of N30,000 in this case as general damages for trespass and denial of access to the Respondent’s plot out of the request for N500,000 general damages was exercised leniently, judiciously and judicially and I loathe to tamper it.

By parity of the evidence, facts and Exhibits presented in this case, the Respondent has proved a better title and the pendulum therefore preponderates in his favour. This issue is resolved against the Appellant. The trial Court has properly evaluated the case of the parties at the trial Court and the decision it has reached is hereby upheld. The judgment of the Kano State High Court, in Suit No. K/138/2012, delivered on 31/3//2014 by Hon. Justice Dije Aboki is hereby upheld. Consequently, the appeal fails and is hereby dismissed. I award a cost of N50,000.00 in favour of the Respondent against the Appellant.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother, UWANI MUSA ABBA AJI, J.C.A. before it was delivered. I agree with the reasoning of my learned brother and the resolution of the lone issue formulated

for determination. I agree that the Respondent proved a better title at the trial and was entitled to the judgment of the trial Court. This appeal is therefore lacking in merit and I dismiss it accordingly. I abide by the consequential order.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Uwani Musa Abba Aji, JCA.

I agree that the Respondent has proved a better title than the Appellant. Where there are competing claims to ownership of land, the law ascribes ownership to the one who can show a better title. See Biarikho v. Edeh-Ogwuile (2001) 12 NWLR (Pt. 726) P.235 at 262-263 Para H-B per Onu, JSC; Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) P. 163 at 208 Para B per Ejiwunmi, JSC.

Where a trial Court unquestionably evaluates the evidence and appraises the facts, the Court of Appeal will not substitute its views for the views of the trial Court. See Onovo v. Mba (2014) 14 NWLR (Pt. 1427) P. 391 at 424 Para F per Ogunbiyi, JSC.

?This appeal lacks merit and is accordingly dismissed. The Judgment of the lower Court is thus affirmed with the

costs as awarded in the lead judgment.

Appearances

Dr. N. A. Aliyu, Esq.For Appellant

AND

M. S. Garba, Esq. with him, Mustapha Bashir, Esq.For Respondent