ALHAJI MOHAMMED MAGAJI v. ALHAJI MUSA KUYANBANA
(2013)LCN/6064(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/MK/139/2012
RATIO
“A contradiction, to raise doubt in the mind of the court must be substantial. Absence of minor differences gives the picture of a tutored or tailored evidence. ” Per DANJUMA, J.C.A.
“Acts of customary ownership or title to land have been held to include farming, leasing or exercising such acts of ownership on a piece of land. It also includes taking up law suits in courts or before any Tribunals or doing all such things in protection of the said property. See GBADAMOSI v. TOLANI (2011) PT. 1240, PG. 352 AT 355 – 367.” Per DANJUMA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
ALHAJI MOHAMMED MAGAJI Appellant(s)
AND
ALHAJI MUSA KUYANBANA Respondent(s)
MOHAMMED A. DANJUMA, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was the Plaintiff at the Upper Area Court, Keana. At the trial Upper Area Court, the Plaintiff had claimed per his Writ of Summons as follows:-
“3. That the Plaintiff is the rightful customary owner of a parcel of land lying and situate at Okyokulo Road, Daddere.
4. That the land was lent to the Defendant by the Plaintiff’s father and the Plaintiff wishes to take same back.”
Whereof the Plaintiff claims thus:
1. A declaration that the Plaintiff is the Customary Owner of the land.
2. A perpetual order of injunction restraining the Defendant, his privies servants, assignments, beneficiaries, etc. from further act of trespass on the Plaintiff’s land.
3. Any further orders the court may deem fit to make in the circumstances.
The trial court gave judgment in favour of the Plaintiff.
Dissatisfied, the Defendant appealed to the High Court of Justice, whereat the court upturned the decision of the trial court. This Appeal is from the decision of the said High Court.
I shall in this Judgment simply refer to the Upper Area Court as the trial court, while the High Court sitting on the Appeal shall be referred to as the Lower Court or the Court below interchangeably.
The lower court after a review of the facts and the submissions concluded thus:-
“1. On the whole, and in view of the above findings and holdings we hold that this Appeal has merit. We allow this appeal on all grounds. We hereby set aside the decision of the lower court awarding title to the Plaintiff/Respondent.
2. We also set aside the Writ of Possession granted to the Plaintiff as it affects the Defendant’s land.”
As is the tradition and practice of this court, the Appellant filed a Brief of Argument on the 12th September, 2012 in support of his Appeal. The Respondent in reaction filed the Respondent’s Brief of Argument on 31st October, 2012.
The parties, at the hearing adopted their respective Briefs of Argument as filed. For the Appellant he distilled 3 issues from the six grounds of Appeal filed for our determination, whilst the Respondent also formulated 3 grounds for determination.
I have perused the respective issues posed by each party for determination and note that the issues are not only similar but indeed the same in all ramifications. That is to say Issues 1, 2 and 3 of each of the parties tally in tandem. I shall therefore determine the appeal on the basis of the issues formulated by the Appellant for after all it is his Appeal.
Before then, I should point out that legal work is one that requires not only skill on the part of its practitioner but it does require meticulous and due diligence. In this wise, therefore, learned counsel must ensure that as a minister in the temple of Justice where only learned men practice, the proof of true learning must be exhibited, not only in advocacy, but indeed in the drafting of legal documents. Drafting, being a skill that is expressed in the English Language, must convey the intent and purpose not only in clear and terse language but must show the appreciation of the English Language which is the tool of the profession. I say this because all the 3 issues formulated for determination by the Respondent, are each clogged in typographical or grammatical errors in either the tenses used or adjectives employed. Counsel owe not only the courts but indeed owe the legal profession and themselves the duty of care in ensuring that documents drafted for use in courts meet the minimum standard of quality befitting the learned profession. This is more so in this meteoric or jet age of the 21st century when the lawyer’s role as the beacon of learning and skill is much more placed on the front burner of high expectations and meticulous scrutiny or searchlight. Applying this expected searchlight, I must say that the Briefs of the parties particularly that of the Respondent needed a lexical overhaul.
NOW TO THE APPEAL
Appellant argues his Issues 1 and 2 together and Issues 3 distinctly.
Issues 1 and 2
It was contended that the Justices of the trial court did not properly evaluate the evidence on the record. Referring to the evidence on record, it was submitted that the Justices wrongly held that the PW1 testified that the Respondent reported/complained at the palace that the Appellant went into his land. That PW1 said the Plaintiff went to his farm. Lines 11 – 15 page 42 of the record was referred. That the PW1 in cross-examination stated that the complaint was that the plaintiff entered the Defendants’ farm.
That there was a word of difference between “my farm” and “my land.”
It was also argued that there was uncontested evidence from the Appellant indicating that the Respondent leased out his land to one Eggon Man called Aso for a period of eight (8) years before the Respondent went to the Appellant’s father begging for permission to farm on a portion of the Plaintiff’s (Appellant’s) father’s land, pending the expiry of the lease.
It was submitted that the Appellant was not cross-examined on this point.
That the Appellant resisted the attempt to forcefully farm on any portion of the father’s land.
Counsel submitted that there was uncontroverted evidence from the Appellant’s witnesses including PW3. That the pieces of evidence led were material evidence which were not contested, challenged and debunked under cross-examination as no single question was asked on them. Learned counsel submitted that such evidence amounts to admission for which the court was perfectly right to act upon.
Referring to line 23 on page 48, lines 8 – 9 of page 49 of the record where PW3 stated –
“…he was the one who cleared the grass when my father deforested the land, l was not born.”
Referring to pages 12 -14 of the record where the Appellant stated that –
“I got the land from my father Mohammed Magaji, he is now dead. He was the one who met grass and tree and deforested the land where he cleared the land he farmed yam and guinea corn. I have never met him with any problem on that land…”
At lines 14 – 17 Page 55, he stated –
“It was my father who told me that the deforested the land…”
That no single question was asked the Appellant on the testimony on the lease of Defendant’s/Respondent land for eight (8) years to one Eggon man and the request on the Appellant’s father and PW3 to farm on the portion of the land belonging to the father of the Appellant which included the land in dispute. That there was uncontested evidence from PW3 and Appellant/PW3 gave permission to cultivate the land in dispute.
That there was evidence that DW2 – a brother to the Respondent was given a portion of the Appellant’s father’s land and was later asked to vacate. That he did. That the claim of the DW2 that it was his father’s land and he only moved out because he was married to the Appellant’s sister and did not want any misunderstanding cannot be true.
Learned counsel wondered why it would be the father of the Respondent that would demarcate land that was traditionally that of the Respondent and DW2 through their father, between the Appellant and Respondent. Learned counsel wondered why the Respondent and DW2 father never moved into the grandfather’s land until now.
It was submitted that it amounted to a travesty of justice to hold that evidence of PW3 was a hearsay piece of evidence.
Learned counsel submitted that there are five (5) recognised ways of proving title to land to wit thus: –
1. By traditional history (evidence)
2. By first settlement on the land and deforestation of the virgin land.
3. By production of documents of title.
4. By acts of long possession and enjoyment of the land.
5. By proof of possession of connected or adjacent land in dispute in such circumstances which render it probable that the owner of adjacent land is the owner of the land in dispute.
See YUSUF ADEGOBE (2002) ALL FWLR (PT. 385) 384, PP. 403 – 404, AJIBOYE v. ISHOLA (2006) ALL FWLR (PT. 331) 1209 AT 1230 PAR. C – E, NWOKOROBIA v. NWOGU (2009) ALL FWLR (PT. 476) AT 1892 – 1893 PAR. G – H.
It was submitted that the first, second and fifth methods of proof of title had been established in the instant case at the trial.
Dwelling on traditional evidence, learned counsel referred to the definition thereof in the BLACK’S LAW DICTIONARY- SPECIAL DELUXE FIFTH EDITION AT 1340 wherein it is defined as –
“Evidence derived from tradition or reputation or the statements formerly made by persons since deceased, in regard to questions of pedigree, ancient boundaries and the like, where no living witnesses can be produced having knowledge of the facts.”
It was contended that what the PW3 stated was what his father told him about the land in dispute.
The evidence in contention are found on pages 48, lines 21 – 23, page 49 lines 8 – 11 wherein PW3 stated thus:-
“I know the disputed area; it belongs to my father who is now late. He was the one who cleared the grass; when my father deforested the land, I was not born. I grew up meeting my father on the land. I used to go to the farm, I used to ask my father when my father was about to die, there was somebody he gave the land to. He gave the junior brother to Alhaji Musa by name Athaji Haruna. He gave him on condition that when the children grow up he will take his land back for the benefit of the children.”
The learned counsel after a review of the evidence led, submitted that there was unchallenged traditional history or evidence as to how the father of the Appellant found the land and put the same to numerous acts of possession and permits given to other persons including the Respondent, DW2, the fact that Appellant’s father is also in possession of land adjacent to the land now in dispute puts the matter beyond doubt that the Appellant had proved his case and was rightly granted the relief sought. Learned counsel submits that the reversal was occasioned by the erroneous perception of the entirety of PW3’s evidence as Hearsay Evidence. This court has been urged to allow the appeal on the ground and to restore the Judgment of the trial court, as the view of the lower court that the Respondent has not been able to establish his case at the lower court in any of the five (5) ways of proving title even by his witnesses was wrong.
It was further submitted that the lower court yet again derailed into another error due to lack of adequate and proper evaluation of evidence on record when they held that there was no mention of the lease by the father of the Appellant at the point the father of the Appellant was making the demarcation of the land between the Appellant and the Respondent on the land. That the unchallenged evidence was jettisoned.
The evidence of Appellant and PW at page 312 lines 3 – 18 of the record was referred to. Counsel explained that from the printed record at page 52 line 17 – 26, the Appellant talked of the lease created by the Respondent of his own land to an Eggon man for eight (8) years and not that the Appellant’s father did lease to the Respondent. Counsel faulted the reasoning of the lower court when it doubted the leasehold testified to and queried that the Appellant had not stated the nature of the leasehold and the conditions attached nor its duration on the ground that they were not parties to the lease and had no such duty or obligation thereunder or to establish same, more so that it did not relate to the land in dispute.
That the testimony of Appellant in cross-examination that:-
“Yes the Defendant and his children are still farming there. Yes my father settled the issue in favour of the Defendant but after 8 years he is to vacate the land it was on the year 1993 when Aso was in the land of Defendant on lease. It will be seven years it will have lapsed by 2011.”
Referring to page 55 lines 18-20 of the record wherein Appellant stated –
“It was in 1993 that my father gave portion to defendant to farm in the land.”
Counsel said this had been done before the visit to the palace to lodge a complaint, so the Judges of the lower court with respect missed the point by their improper and inadequate evaluation of evidence.
Learned counsel dwelling forcefully on the evidence of Appellant on page 55 lines 10 – 14 wherein it is stated thus:
“I know the area of dispute. It was not the area that was in dispute that was given to Alhaji Haruna. Alhaji Haruna had already moved to his father’s farm. Alhaji Haruna did not drag like that of the Defendant. That this piece of vital evidence was copious, credible and material and clearly supported the Appellant’s case that such unchallenged and uncontradicted evidence remained good evidence and the court is enjoined to accept and act upon it.”
Learned counsel referred to the cases of GOVERNOR, EKITI STATE v. OJO (2006) FWLR (PT. 331) 1298 AT 1328 PAR. G; ARABAMBI v. ADVANCE BEVEARAGES LTD. (2006) (PT. 295) 581 AT 609 PAR. B-C: PAGE 606 PARS. G – H; CHABASYA v. ANWASI (2010) ALL FWLR (PT. 528) 839 AT 851 PAR. C – D.
On the aforesaid, this court has been called upon to hold that the lower court wrongly evaluated the evidence before the trial court and never allowed itself to be guided by the aforesaid legal authorities or cases and therefore came to a wrong decision. We have been called upon to therefore, reverse the decision and restore the decision of the trial court as having been rightly given.
On the third Issue, whether the award of more land if any than claimed/than described by the Appellant is good reason to allow the appeal and set aside the entire decision of the trial court in the circumstances of this court – from Ground 4 of the grounds of Appeal.
It was submitted that it was not in doubt that the parties to this case know the land in question and in dispute prior to and during the visit to the locus in quo. That the main purpose of the visit of the trial court to the locus in quo was to physically see and confirm the area of the disputed land. That all the parties were present and the court was shown the extent of the disputed land in the presence of their witnesses. That none of the parties raised any objection to the markings made during the visit to the locus, except the DW2 (Respondent/Defendant) who said the land which both the Appellant and Respondent with DW3 showed at the locus was not the land he testified about in court.
It was contended that evidence of the DW2 at the locus denying the identity of the land which the Appellant and his witnesses as well as Respondent and DW3 said is the land in dispute dealt a blow to the case of the Respondent and in favour of the Appellant.
That the trial Judge was abreast of this fact which was ignored by the Judges of the lower court, thus falling into the error complained of.
That the Respondent did not testify but agreed with Appellant, DW3 and DW4 as to the extent of the land that was in dispute.
Referring this court to page 80 of the printed record, wherein it is recorded thus:
“Each of the parties took us round the farm. By the North said to be border with Ibrahim Iya there were heaps (empty) dug by Defendant by the West border with Chindo, no dispute Plaintiff farming. By the East border shared with Ibrahim Iya, By North with Mallam Mamman.”
That the land awarded at the trial did not exceed what was actually identified at the locus, and the submission and holding to the contrary had no basis; that miscarriage of Justice had been occasioned, thereby.
Learned counsel proceeded to argue in the alternative that even if there had been an award of more land than was claimed and or testified to, and identified, that alone should not constitute a reason for setting aside the decision of the trial court.
That the Justice of the case would have been for the lower court to award the land as described by the Appellant and identified during the visit to the locus.
Conclusively, this court has been urged to allow the appeal, set aside the decision of the lower court and order the restoration of the decision of the trial court along with the consequential orders in favour of the Appellant.
Alternatively, it was submitted and prayed that this court should restore the decision of the trial court and limit the extent of the disputed land to the description given by the Appellant and witnesses at the trial court.
In response to the Appellant’s Brief, the Respondent who adopted his Brief of argument raised 3 issues which are identical to the Appellant’s issues for determination.
Arguing his issue No.1: on whether the learned Justices of the counter court properly evaluated the evidence on record in coming to their decision (Grounds1, 3, 5 and 6), learned counsel submitted that a perusal of the record showed that the evidence was carefully and properly evaluated.
Referring to page 42 lines 10 – 14, it was observed that the Respondent reported trespass on his land against the Appellant. That the Appellant had testified that his father had given the land to the Defendant; that if that was the land of the Appellant, the Respondent would not have reported him. That at page 56 line 10 of the record, the Appellant testified that the land was borrowed/leased to the Respondent and that he having introduced the issue of lease had the burden of proving the lease.
That PW3 at page 49 lines 11 – 14 said the land was leased to one Alhaji Haruna.
Counsel referred to the evidence of PW2 at page 46 lines 5 – 7 and page 4 lines 7 and submitted that PW2 stated that his grandfather was farming side by side both with the Appellant and Defendant’s father in the disputed land and as for the Plaintiffs father, that he did not know.
Continuing, the learned Counsel submitted that the Appellant’s witnesses supported the case of the Respondent that PW2 admitted that the land south of the disputed land after the access road is the Respondent’s land (page 47 lines 9 – 10). That PW1 at page 43 lines 11 – 13 said the same. That the land south of the disputed land after the road belonged to the Defendant/Respondent.
That PW3 at page 49 lines 11 – 14 said the land was leased to Alhaji Haruna, while PW4 in cross-examination said it was not pledged; not a gift but only borrowed/leased.
On the totality, it was contended that the evidence of the Respondent and DW2 on ownership clearly demolished that of the Plaintiff/Appellant and made the evidence prostrate and could not sustain the claim of title.
That the lower court rightly evaluated the evidence in coming to the decision to set aside.
It was also contended that both parties relied on traditional evidence/history in proof of their respective positions.
That it was clear from the record that the land had been demarcated and the Respondent put in possession of the disputed portion. That the claim relating to lease had not been proved as the plaintiff/Appellant had to establish when the land was leased/let, duration of the lease, witnesses and other conditions.
ALHAJI A. ADUTOLA v. J. A. ODUTOLA PROPERTY DEVELOPMENT COMPANY LTD. (2006) 125 CNJ PAGE 188 AT 192. Holding 3, 4 and 5 referred.
It was contended that there were material contradictions in the evidence of the Appellant and his witnesses.
For one, it was stated that PW3 said his father gave the land to the junior brother of the Respondent (one Alhaji Haruna).
That PW3 also said the land was demarcated between the parties.
That PW4 said the land was demarcated between the parties but subsequently said he gave the land to the Respondent (PW4 at pages 52 lines 16 – 17 and page 53 lines 9 – 12). That it was a material contradiction and that the appeal should be allowed as the lower court properly re-evaluated the evidence. That PW2 had stated in cross-examination at page 43 that the land in dispute was the Respondent’s land.
It was also submitted that the plaintiff’s case supported the Respondent’s case and that the re-evaluation that led to the setting aside of the trial court’s decision was proper, as the lower court was competent to do so.
ALHAJI ABBA SATOMI SALEH & 1 OR. v. BANK OF THE NORTH LTD. (2006) 2 SCNJ PAGE 407 AT 411. HOLDING 5, 6, 7, 8, 9 AND 10.
On its issue No. 2 whether the evidence of PW3 was hearsay as held by the lower court, it was argued that the court was right as the evidence related to what PW3’s father told him of what transpired at the palace.
Learned counsel submitted that that piece of hearsay evidence should not be accorded weight by the trial court. He referred to FIRST BANK OF NIGERIA PLC. v. CHIEF VICTOR NDOM-EGBA (2005) 4 FWLR PG. 284, AT PAGE 830. Wherein it was held –
“Hearsay evidence reduced into writing should not be accorded any weight by the trial court.”
Counsel therefore urged that the Evidence of PW3 as to what transpired in the palace was essentially hearsay and that the lower court rightly discountenanced it and set aside the Judgment of the trial court that was based on that evidence.
On Issue 3, the Respondent argued that the trial court awarded more than what was claimed, and that the lower court was right in setting aside the Writ of Possession issued over land that was more than what was claimed.
That the trial court extended the award of the disputed land to include the Respondent’s land across the access road; that PW2 had limited the land claimed to the access road but that the trial court without jurisdiction granted a relief as to land said to have a border at the south with Mallam Mamman – when no such name was mentioned. AUGUSTINE NDUKWE v. NWANKWO IBEZIM (2002) vol. 102 NSC 4 R. PAGE 698 AT 703 wherein it was held thus:
“It is settled law that a court of law must not grant a party a relief which he has not sought or which is more than what he has claimed”
was cited in support.
Finally, this court has been urged to hold that the lower court was right and to affirm its decision and dismiss this appeal as lacking in merit.
I have painstakingly read the records of appeal in its entirety and believe that the interest of Justice will be better served if all the issues as formulated in tandem by the two contending parties are treated seriatim. I shall so do.
It should however be noted that it is not the function of an Appellate court to substitute its own views of the evidence for those found by the trial court. Thus where the trial court has properly taken advantage of the opportunity of seeing and hearing the witnesses, an appellate court would not interfere with it unless it is shown that the findings are perverse or are not supported by the evidence.
See OSHE v. OKIN BISCUITS LTD. (2010) 11 NWLR (PT. 1206) 482 AT 493 D – E; OKOYE v. EJIFO (1934) 2 WACA 130; ODOFIN AYOOLA (1984) 11 SC 72.
See also the recent decision of this court on this basic and fundamental principle of law as per KEKERE-EKUN, JCA IN NWAGU v. FADIPE (2012) 13 NWLR (PT. 1318) PAGE 549 AT 576: wherein the learned Justice stated thus:-
“In the instant case, I am satisfied having taken the pleadings of the parties and the evidence adduced into consideration that the findings of the trial Judge are fully supported. The Appellant was unable to satisfy the court below as to how the permission granted to Madam Fayiob to use one of the rooms in the property in dispute during her life time, which was extended to her son Ige Ogini due to his blindness metamorphosised into absolute ownership by Sunday Ige. I agree with the trial Judge that the respondent established his case on a preponderance of evidence…”
The above quoted position of the law is the state of the law that the Appellant herein contends forcefully as applying to his case before us. The Respondent says, No!
The plaintiff’s claim at the trial court is that he was a customary owner of the land claimed by virtue of the fact that it devolved on him from his late father. What was his evidence? Since the burden in a claim for declaration of title or claim of title is fixed and on the Plaintiff, Appellant as plaintiff has a minimal burden of simply establishing his case on the balance of probability that he is entitled to such a declaration. Where he has so established a prima facie case that is not rebutted, he is entitled to a declaration of title in his favour.
Where he fails or is unable to satisfy the court, he simply fails. In that circumstance his opponent who has not claimed and proved title will not be granted any declaration in his favour.
SEE FRANCIS v. ONWORD & 3 ORS. (2005) 5 SCNJ PAGE 359 AT 369 RATIO 1. Wherein the apex court stated thus:-
“The burden of proof in land matters though depends on the state of the pleadings is mainly on the Plaintiff in the first place.
It could therefore move to the Defendant like a circus circle.
It is elementary in our property law that he who seeks title to land must prove that title. This burden is firm and it stands unequivocally on the face of the Plaintiff who must discharge it. The burden does not shift one second to the Defendant. It is constant on the Plaintiff as the sun which rises from the east and sets in the west every day. It is only where the plaintiff has given evidence of title to the land that the defendant leads contrary evidence…”
I shall treat Issues 1 and 2 together as jointly argued by the Appellant in their Brief. I shall however bear in mind that while the Court of Appeal has the right and indeed the duty to examine the reasons given by a lower court for arriving at its findings after evaluating the evidence during the trial, if the reasons for the findings are unsupported by the evidence, they will be set aside by the Court of appeal. See UDUMA v. ARUMSI (2012) 7 NWLR. (PT. 1298) 55 AT 105 PAR. A – B.
The evidence of PW1 at the trial court is straight forward and to the effect that the plaintiff who was the Respondent at the lower court duly claimed in his testimony that the Defendant/Respondent entered into his farm contrary to the lower court’s holding that the complaint was that the Plaintiff entered into the Defendant’s land.
At page 42 lines 8 – 15 of the record, PW1 is recorded to have said inter alia, thus:-
“We were in front of Chief of Daddere Ahmadu Mohammadu when Alh. Musa (Defendant) came to the palace. He brought the issue of farm against the Plaintiff that he went to the Plaintiff’s father but did not see him; that the Plaintiff entered his farm… The Plaintiff’s father asked the Chief that some people to escort him to the farm, myself and Magaji, my junior brother Musa Aliyu as Dan Isa. We went to the farm, plaintiff’s father called the Plaintiff to bring hoe to him while he held the hoe from the north to the south he then said he had divided the land saying into 2 where the land in dispute is situated. He told them that each should stay (sic) where he was given his portion. The Defendant did not say anything only last year the issue arisen.”
It is clear from the afore quoted portion of the testimony of PW1 at the trial court, that the lower court misapprehended the evidence led at the trial when it stated at page 312 of the record thus:-
“On issue 1 and 5, we have read the relevant pages of the printed record referred to us, by both counsel in their addresses on this issue and it is our finding based on the evidence of PW1 that the Defendant made a complaint to the palace that the Plaintiff has entered his land…”
As contended by the Appellant then Respondent’s counsel there is a world of difference between entry into one’s land and entry into one’s farm as complained of.
That findings of fact by the lower court is not supported by the evidence of PW1 on the record referred to. It is a perverse findings and I so hold.
There is no doubt that it was testified to profusely by the witnesses uncontradicted that the Appellant’s (Plaintiff’s) father demarcated the land; was it not to allow the parties continue to farm in peace and without one harvesting the others crops only?
To buttress this fact PW1 in cross-examination stated further thus:-
“It was Alhaji Musa i.e. Defendant that reported to the Chief against the Plaintiff that where he harvested his yam the Plaintiff entered … That is true the complaint was that the Plaintiff entered the Defendant’s farm where he harvested same. That is the land now in dispute.”
There is also the unchallenged testimony of the PWs about the leasing of the Respondent’s then (Defendant/Appellant) land to an Eggon man for 8 years as constituting the reason for his foray into the land whereof the Plaintiff allegedly “trespassed” or encroached into as he was farming thereon. That the defendant (now Respondent) benefactor was the Appellant’s father was obvious from the fact that it was he who went and demarcated at his discretion the portions of the farm indicating boundary between the two from North to South.
DW1 who was the Defendant/Respondent’s witness confirmed the fact of demarcation by the Plaintiff’s father and said none of the parties complained. See page 34 lines 1 – 4 and page 16 of the Judgment of the lower court at page 16. The lower court, based its decision in reversing the declaration of title order made on the fact that the –
“Plaintiff’s father had demarcated the land between plaintiff and Defendant. It goes a long way to resolve these issues. Had the Plaintiff abided on the said demarcation, the issue would not have arisen.”
It is for the above that the lower court held that the Plaintiff had not proved exclusive right or better title over the land in dispute to entitle him to the award of title to same in his favour.
There is no doubt about the action towards peaceful co-existence and farming by both parties by the Appellant’s father over his own land for the parties. The Question that needed an answer is – Did the act of demarcation and advice to be peaceful constitute a permanent gift to either or both of the parties of the specific portions thereof of the demarcated land or farm? The Defendant did not say so exactly. In one breath, he claims by his witnesses, that, that portion had been given to him outright and yet in another breath there is an absolute claim of ownership by inheritance from his own parents. A conflicting defence has been set up.
The unchallenged evidence of the lease of the Respondents and to an Eggon man for 8 years is being alluded to by the lower court except that the court does not think it should be a motive for the claim of title made by the Appellant. Whatever may be the motive for an action, the law is that sentiment has no place in law. We shall therefore be concerned with only the question whether there is a legal basis for the action instituted.
The crux of the Appellant’s claim is that he was the customary owner or title holder of the land claimed. For that he claimed his root of title through his father. It is because of that reliance on his father’s right as his progenitor that he carried out acts of ownership such as farming on the said land and warding off perceived intruders in such a land.
Acts of customary ownership or title to land have been held to include farming, leasing or exercising such acts of ownership on a piece of land. It also includes taking up law suits in courts or before any Tribunals or doing all such things in protection of the said property.
See GBADAMOSI v. TOLANI (2011) PT. 1240, PG. 352 AT 355 – 367.
The Appellant testified to his resistance to encroachment on the land. He proceeded to show how the Defendant/Respondent came into possession of a part thereof.
PW2 and PW3 had made it clear that it was the Plaintiff’s father that deforested a parcel of land including the portion in dispute and was cultivating same alongside his children. That the Defendant/Respondent was only allowed to farm on a portion thereof. The reason for the request and permission given related to a lease of his own land by the Respondent that necessitated the request for a place to farm for the duration of the leasehold. It was not a reference or claim of leasehold in respect of the land in dispute.
I agree that the lower court misapprehended this piece of evidence and no doubt fell into the inevitable error of holding that there was no proof of a lease granted by the Appellant or his father to the Respondent.
See pages 18-20 of the record of appeal wherein the Appellant testified that –
“it was in 1993 that his father gave the plaintiff part of the land to farm…”
Hear him..
“My father had never informed me that Defendant ever farmed there. It was in 1993 that my father gave portion to Defendant to farm on the land…”
In cross-examination, PW4, the Plaintiff/Appellant restated, it was not a gift to the Respondent but was borrowed/lease. To me, it is clear that the usage of the word borrowed/lease simply meant a grant of a right to use the property. It was not an outright gift or any act that conferred absolute title or competing title on the allodial owner thereof.
See pages 52 – 55 of the record of appeal wherein, the following appears: –
“The Chief after talking to my father, then my father consented. That the Defendant’s father and my father had been friends for long, then my father said he will not refuse defendant’s request. We came back home and gathered all of us (myself and my junior brothers) that he will return the land. …I already farm groundnut on the disputed area then.”
The parties had tried to outwit each other in logic and argument rather than on the hard evidence led.
The PW4 to my mind had testified materially as to how he became the owner and entitled to the land claimed.
The lower court considered the evidence of the witnesses as hearsay.
Evidence of tradition relating to the land and how it was acquired has been held to be admissible hearsay evidence. This constituted an exception to the hearsay evidence rule and is recognized by our law.
It is provided for in S.45 of the Evidence Act. See IDUDUN v. OKUMAGBA (2002) 20 WRN 127, (1976) 9 – 10 SC 227, ADEDIBU v. ADEWOYIN (1951) 13 WACA PAGE 191 AT 192. IRETU NWOKIDU v. OKAMI (2010) 1 SCNJ 167 AT 193.
In GBADAMOSI v. TOLANI (2011) 5 NWLR (PT. 1240) 352 AT 366 – It was held thus:-
“It was the duty of the Plaintiff/Appellant where there is a rival claim by the Respondents to prove his title to a defined area to which a declaration can be attached with certainty. Of the five ways of proving title to land, each of them stands or falls or its own merit. None is dependent on the other.”
See ONWUGBUFOR v. OKOYE (1996) 1 SCNJ 1 AT 20: (1996) 1 NWLR (PT.424) 252; IDUNDUN I. IDUNDUN v. OKUMAGBA (Supra).
The Plaintiff has been able to show that the possession and the enjoyment of the portion of the land by the Defendant was purely a license to use the portion for a duration and also pending when the children of the plaintiff’s father became of age. The act of possession and enjoyment of the land in the circumstance could not mature into proof or constitute evidence of ownership that could warrant a declaration of title for the Defendant. There was no evidence of any metamorphosis. Even by the evidence led by both sides, the Appellant was the owner of an adjacent land of a dimension 5 times bigger than the land in dispute. The plaintiff/Respondent’s land was across the road to the north. The PW1’s testimony is not to the effect that the land in dispute belongs to the Defendant as claimed by the Respondent’s counsel in his address. In deed the PW1 only reiterated that the land they entered last year was the land that defendant reported about against the plaintiff, that the plaintiff entered where he had harvested yams. That it was his farm. Just as it is trite law that the plaintiff is bound by his case as put forward in his writ of summons, see COMMISSIONER OF WORKS BENUE v. DEVCON DEVELOPMENT CONSULTANTS LTD. (1988) 3 NWLR (PART 83) 407 AT 420; AYAMBOYE v. BALOGUN (1990) 5 NWLR (PT. 151) 392; A INT’L LTD. v. S.K. INT’NL LTD. (2010) 13 NWLR PART 1211. PG. 270 AT 360 PER MSHELIA, JCA, the role of the court is to decide on matters presented before it in the pleadings and oral evidence; so when an issue is not placed before the court, it had no business whatsoever to deal with it.
However, the court may raise an issue suo motu, but the court must give the parties, particularly the party that may be affected adversely as a result of the issue raised by the court, the opportunity to be heard on the issue raised. By so doing the court will avoid breaching the parties’ right to fair hearing. See AKERE v. GOV. OF OYO STATE & 3 ORS. (2012) 12 NWLR (PT. 1314) PAGE 240 AT 294, where ARIWOOLA, JSC STATED AT PAR. H. 295 A, thus:-
“However, it is the law and it is trite that a court be it of first instance or appellate should not raise a point suo motu and proceed to resolve the issue without giving the parties the opportunity to address it on the said issue. The case is that of the parties and not that of the court. The court’s only role in adjudicating is to decide on matters as presented before it in the pleadings and oral evidence.
See SULE SANNI v. DUROJAIYE ADEMILUYI; DAN AMOLE v. SOKOTO NATIVE AUTHORITY (2012) 5 NWLR (PT. 1298) 181. Otherwise, the parties’ right to fair hearing will be breached.”
The Defendant’s case was not that he shared or owned with the plaintiff jointly the land in dispute. It was not the Plaintiff’s case that he owned a joint ownership, part of which had been taken over from the Defendant and now owned exclusively by him. Neither was it the plaintiff’s case that the Defendant was in trespass as perceived by the lower court.
From this conclusion of facts by the lower court it was obvious that the court set up a case distinct from that set up by the parties at the trial and came to its own conclusion thereon. It was a departure from its role.
DW1, DW2, DW3 and DW4 were stated to have testified as to the parties sharing boundary; no doubt, a seeming boundary as to the acts of cultivation but not of the character of individual ownership that was severable.
At page 42, it was PW1 who testified as to what he heard in the palace of the complaint brought by the Respondent and the Appellants father’s action of apportioning a portion for farming to the Respondent. The PW4’s evidence is at page 52 and not 42 as recorded in the Judgment of the lower court. In that Judgment, it is the PW4 that informed the Defendant that “let it not be that tomorrow there will be a dispute.” I find no such evidence as ascribed to PW4 on page 42 lines 7 – 11 by the lower court. The PW2 testified at page 19. The lower court sought to capitalize on the portion of his evidence wherein he said the Plaintiff’s father and the Defendant share boundary with him but could not tell precisely who the owner of the disputed area is.
In a trial in a customary or native court, the court shall consider the whole evidence and decipher the nature of the claim and evidence led and not pick issues or facts in isolation.
A cursory look at the entirety of the evidence of PW4 shows clearly that he contested his right to the land and was harassed by criminal allegations over crops on the land as cultivated by the Defendant. Its settlement whichever way was immaterial to the substance and merit of the claim before the court of trial.
DW4 confirms the Appellant’s claim that the elder brother to the Defendant/Respondent who was in occupation of the land has moved out upon the insistence of the appellant, see page 45 of the record where he stated in cross-examination, thus:-
“I knew Alhaji Haruna Mohammed. He is my uncle. He is the one I said left portion for the Plaintiff. He knew the history of the land more than I do.”
The plaintiff/Appellant testified profusely that it was a permit or license to farm for a duration pending the effluxion of the period of the 8 years of the lease of land as made by the Respondent of his own land.
That a demand to give up use and possession yielded result when the senior brother to the Respondent, one Haruna Muhammed moved out, leaving only the Respondent who was adamant.
DW4 – Alhaji Danjuma Garkuwan Danddere who was an in-law to Plaintiff/Appellant and a son to the Defendant admitted the exit of Alhaji Haruna Mohammed, his uncle from the portion for the Plaintiff. Was it not reasonable to infer that the unchallenged evidence of the Plaintiff is re-enforced by this exit of Haruna Mohammed and the trial court was entitled to believe the Appellants that it was proof of their entitlement to the land as against the contradictory inference of ownership for the defendants who have the act of demarcation of the land for their use staring at them? The evidence of DW4 is largely that relating to the criminal offences reported in respect of the crops in the land.
DW2 – Alhaji Haruna Mohammed testified that the land belonged to him and his brothers (inclusive of the Defendant/Respondent) as his children. At page 36, this witness stated thus:-
“Is after my father died he left portion of land for us with Defendant.”
DW2 – that he moved out of the land for the senior brother, DW1. The question that ought agitate the mind is, why the DW2 also moved out in favour of “a non owner” who was left in possession, merely because of pressure? DW3 at page 66 at the trial stated that –
“he was called to the farm because he knew the history of the farm. The area is the area in dispute now. I do not know whether the Plaintiff own a portion there.”
DW1 said he will not be in the position to say the person who owns the land in dispute. He was only sent to divide a fight at that time, since then he had not been to the land. See page 35 of the records.
In cross-examination, DW1 stated that –
“It was the Plaintiff’s father who uses his discretion to make the demarcation.
DW2 after testifying as to the discretion of the Plaintiff’s father in demarcating the land, proceeded to give contradictory evidence as to whether the Plaintiff complained about the land in dispute. In one breathe he said there was a complaint. In yet another breathe, he said he did not know if there was a complaint by the Plaintiff. He said he did not know whether the Plaintiff’s father had a land in that area. He was categorical that he did not know whose land it was.”
It is patently clear from a synopsis of the evidence of DW1 to DW4 reproduced and pointed out above that the Defendant now Respondent had not at the trial put up any reasonable and overwhelming defence to the claim of the Appellant/Plaintiff. In fact they had not even proved any good title or better title to that claimed by the Plaintiff.
DW1 – In examination-in-chief stated at page 35 (being the trial court record of proceedings) thus:-
“I will be able to identify the areas that was demarcated even in the night time. I am not aware of what happened subsequent. I will not be in position to say the person who owns the land in dispute. I was only sent to divide fight at that time. Since then I had not been to the land.”
In cross-examination, DW1 stated thus:-
“I do not have a portion of land within the area in dispute. I was only in the land as a result of dispute that ensued between the Plaintiff and the Defendant. It was the Plaintiff’s father who use his discretion to make the demarcation.
…I do not know whether the Plaintiff’s father has a land within that area. I will not be able to say whose land it was.
DW2 in his evidence at the trial stated that the land in dispute belonged to his father one Muhammadu Kuyanbana Deddere and that he was farming there when plaintiff whose sister was married to him came and started farming there. That because he was shy and so tried to avoid the encroachment on his farm so allowed his own elder brother the Defendant to continue the farming whilst he DW2 moved out to their grandfather’s land.
That the Plaintiff did not give him any land.
In cross-examination at the locus in loquo, the Defendant is recorded as pointing at the land shown on the sketch as the land in dispute.
DW2 says “it was not the land I referred to in the court.”
DW3 said – “it was the land I referred to in the court.”
DW4 said “it is the land I referred to in the court.”
See page 54 of the record.
It is therefore apparent from the DW2 answer denying the land visited at the locus in quo (visit), as the land he testified about in court that the Defendant (DW2) was uncertain about his claim to the land in dispute. No wonder the DW1, DW3 and DW4 could not help matters. Their evidence contradicted one another. It was unreliable.
Where then is the evidence that would have anchored a contending claim against which the lower court felt that the plaintiff had not proved! The testimony of DW2 at the locus in quo, that the land he testified to in court was not the land they visited and which was shown the court and in the sketch map had fatally knocked off the Defendant’s/Respondent’s challenges to the case of the Appellant.
The non-appreciation of this fatal evidence on record against the Respondent had made the reversal of the Judgment unsupportable at the lower court.
Evidence of tradition passed on orally is essentially one of the recognised exceptions to hearsay evidence. See BLACK’S LAW DICTIONARY SPECIAL DELUXE 5TH EDITION PAGE 1340.
Where no living witnesses can be produced having knowledge of the facts the narration thereof as regards pedigree, ancient boundaries, etc. are admissible from persons who had such information or where they have been recorded, such evidence are admissible. I have looked at the answers of the DW1 in cross-examination wherein the Respondent’s counsel submitted that PW1 had admitted that the land in dispute belong to the Respondent.
There is no such testimony on the record, rather PW1 is recorded as stating that the complaint to the chief was that the plaintiff entered the Defendant’s farm and harvested there from; that that was the land in dispute.
There was, therefore, no evidence of admission by the Plaintiff’s (PW1) in favour of the Respondent as claimed in the submission of counsel. The submission of counsel shall not replace the evidence. FATOBA v. DONSI (2009) 14 NWLR, (PT. 840) 323. Upon a few of these observations as made supra, it appears clear to that, that there was no basis for the lower court to interfere with the decision arrived at, at the trial court, that jettisoned the case of a Respondent that displayed porosity. The upholding of the case of a plaintiff that had on the balance of probability been established was in order. To have done otherwise was to place a burden not fixed on it by law in establishing the civil claim.
I do not see any contradiction or conflict in the evidence of the plaintiff’s witnesses at the trial. I do not even see any discrepancies which have affected the substance of the evidence led by the witnesses to the plaintiff.
A contradiction, to raise doubt in the mind of the court must be substantial. Absence of minor differences gives the picture of a tutored or tailored evidence.
This is why, a trial court, in spite of what may appear to be unchallenged or uncontradicted evidence (which Defendant/Respondent’s evidence is not) still has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim.
See GONZEE (NIG) LTD. v. NERDC (2005) ALL FWLR (PT. 274) PG. 235 AT 248 – 249, PARS. H. A. (2005) 13 NWLR (PT. 943) 534.
The trial court appreciated that where an injunction and damages are claimed, title is propped up; and possession or occupation will be inferred for the person who proves a better title.
DW2 evidence at the locus, denying the land in dispute as being different from that which he testified to in open court clearly shows that the Appellant was the one in occupation of the adjudged land in actual dispute that was visited and had proved a better title to same.
The lower court, therefore, rightly held that the Appellant/Plaintiff had discharged the onus of proof on him for declaration of title in his favour, having heard the witnesses, visited the locus and having watched the demenour of the witnesses.
Evaluation of evidence is primarily the function of the trial court having regard to the fact that it is the trial court which had the opportunity of seeing and hearing the testimonies and watching the demenour of the witnesses.
“It is only when the trial court fails to evaluate such evidence properly or at all that the appellate court can intervene and re-evaluate such evidence itself. Otherwise where the trial court has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, an appellate court has no business interfering with its findings on such evidence.”
See OGBE v. IDOWU (2004) 24 WRN 1 – 176, PAGE 152 RATIO 17 AT 160 PER ADEKEYE, JCA as she then was, See also MAIKUDI v. MUSA (2004) ALL FWLR (PT. 230) 1036 AT 1109, PAR E – F.
If DW1 said he did not know who owns the land in dispute (in cross-examination and DW2 said in cross-examination at locus that this is not the land I testified to in court.)
DW3 – said in cross-examination that “to his knowledge no one farms within the area stated. That he did not know if plaintiff has a piece of land there, and DW 4 – relies on the evidence of DW1, then I wonder what the grouse against the findings and declaration of title! I have read carefully the evaluation of evidence of each of the witnesses as made before the trial court and note the specific evidence of the DW1 to DW4 and in particular the fact that the defendant did not testify. The evaluation of the evidence of PW3 and PW4 as contained at page 73 is clear as to how Respondent allegedly came on to the land, which he curiously denied its specific identity.
Although the DW3 testified that it was defendant’s father that deforested the land by burning the trees. The plaintiff’s father controlled its use by demarcating. In evaluating these competing evidence of title, the trial Judge stated thus:
“The question that comes to mind is that how possible is it that at the same time the land was deforested by different person or was it a joint land? I tend to tilt in believing more the version of the plaintiff than that of the defendant for the simple reason that it was plaintiff’s father that at a point demarcated the land in dispute part of the portion said to be given on lease to the defendant. The plaintiff has reversionary power to recover same. In the light of the above reason stated I hereby resolve issue No.1, of counsel to plaintiff formulated issue and counsel to the defendant formulated issue in favour of the plaintiff by holding that the plaintiff has established his claim for declaration of title to land in dispute as required by law.”
I fail to understand how the lower court could re-evaluate the evidence led and come to a different conclusion, particularly in this case wherein at the trial the defendant’s witnesses gave conflicting evidence even as to the identity of the land they claim was deforested by the Defendant’s father and which was in dispute.
At page 34 of the trial record, DW3 was emphatic that he could tell the demarcation of the land. He stated:-
“I will be able to tell the demarcation. By the East side we share boundary with Ibrahim Dan Iya, to the West side we share boundary with Dogo Ahoma, to the West again boundary with Ibrahim Day. By South with Mamman Amoyi. By the North in the land in dispute it is a bush…”
DW2 says to the west the boundary is with Chindo. This contrast and contradicts the western boundary demarcation given by DW3.
DW1’s evidence was purely on the complaint taken to the palace and the demarcation made on the land wherein the plaintiff was found working. The demarcation was effected by the plaintiff’s father at his discretion as stated by DW1 (see page 178) without any direction or advice or claims from the parties or any other person as to how it should be done. The plaintiff/Appellant claims through such a person.
From the totality of the evidence before the trial court, both parties claim title based on traditional history.
A trial Judge faced with competing histories regarding the acquisition of a piece of through traditional history has to determine the truth of the histories on the basis of probability that either of them could be true.
In IRETU NWOKIDU & 3 ORS. v. MARK OKAMI (2010) 1 SCNJ 167 AT 193: (2010) 3 NWLR (PT. 1181) 362 AT 398 PAR. A – C, the Supreme Court stated thus:
“In the scenario before the court where the case is fought on evidence of traditional history which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case by testing it against the other evidence.
Where the witnesses of one party contradicts each other on the traditional history relied upon by the other side, the trial court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied upon by the other side, the trial court will be right in accepting the traditional history. It is only when it can find neither of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.”
The evidence of both sides have been considered and evaluated at the trial. The trial court believed the evidence of the Plaintiff/Appellant as being more probable and weightier than the evidence of Defendant/Respondent. The evaluation had not been shown to be perverse, upon scrutiny. Issues 1 and 2 are resolved in favour of the Appellant.
On the 3rd issue: I have read the evidence of the parties and their witnesses as regarding the extent and boundary of the land in dispute. The DW2 knocks off his claim and complaint as to the award made by renouncing the identified land visited as not the one he testified to in court. In any case, DW3 and DW4 affirmed the identity. It is consistent with the claim and the award made in all material particular.
I find no merit in this complaint as raised. Even if the trial court had awarded land in excess of what was claimed, it is my view that the Justice of the case is not for the entire award to be set aside.
This Court has the power under Order 15 of the Court of Appeal Act to enter such Order as the trial court ought to have entered. See HARKA SERVICES LTD. v. KEAZOR (2006) 1 NWLR (PT. 960) 160: MOGAJI v. MILITARY ADMINISTRATOR, EKITI STATE (1998) 2 NWLR (PT. 1135) 529 AT 559 B – C.
I therefore agree with the learned counsel for the Appellant that even if the court had awarded more than claimed, it was not sufficient to vitiate or nullify the entire award by the court of trial. See A. INTERNATIONAL LTD. v. S.K. INT’L ENT. LTD.
In this case there was evidence at the trial that the land was bordered at the South by footpath and across the footpath or road was the land of Mamman. DW3 said, to the South, is Mamman Amoyi’s land. DW2 says the land is bordered to the South by Mamman.
PW1 says the land is bordered on the South by an access road, thereafter the Defendant’s land. In spite of the above, the Respondent as Appellant at the lower court had not shown that injustice had been caused to him as after all he did not counter-claim for title to a specific land which was wrongly covered by the order or writ of possession as made. Writ of possession related to the portion verified upon the visit to the locus in quo. There are no findings of facts based on any hearing of further evidence on the visit to locus and so the lower court could not safely jettison the description of the boundary of the adjudged disputed land as made by the court that saw the land and heard the witnesses and made its observations.
Issue No.3 is resolved in favour of the Appellant.
On the whole and having so resolved the issues in favour of the Appellant, it is my decision that the appeal has merit and it succeeds. Accordingly, the Judgment of the High Court of Nasarawa State in Appeal No.NSD/L/31A/08 delivered on 12th June, 2012. In Alhaji Musa Kuyanbana and Ali Mohammed Magaji is set aside and in its place the decision of the Upper Area Court of Nasarawa State in suit No.UACK/CV02/07 between Ali Mohammed Magaji and Alhaji Musa Kuyanbana delivered on 29th October, 2008 is restored.
Costs: No cost awarded.
ADZIRA GANA MSHELIA, J.C.A.: I read in advance the draft of the lead judgment of my learned brother Danjuma, J.C.A just delivered. I agree with the reasoning and conclusions arrived thereat. My learned brother had treated all the issues raised in this appeal. I have nothing useful to add. The appeal has merit and same is allowed by me. I endorse all other consequential orders made in the lead judgment, costs inclusive.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother M. A. DANJUMA, J.C.A, just delivered. I agree entirely with reasoning and conclusion and have nothing to add.
I also allow this appeal and make no order as to costs.
Appearances
Ocha P. Ulegede, Esq. with O. D. Obande, Esq.For Appellant
AND
P. C. Dinak, Esq. with G. O. AgboFor Respondent
