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AUGUSTINE SHITTU v. JEJI JUGOL (2019)

AUGUSTINE SHITTU v. JEJI JUGOL

(2019)LCN/13071(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/YL/12/2017

 

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

AUGUSTINE SHITTU Appellant(s)

AND

JEJI JUGOL Respondent(s)

RATIO

WHETHER OR NOT A PARTY RELYING ON EVIDENCE OF TRADITIONAL HISTORY MUST PLEAD HIS ROOT OF TITLE IN HIS PLEADINGS

This Court observes that it is trite that a party relying on evidence of traditional history must plead his root of title in his pleadings and prove by credible evidence who his ancestors are and how they come to own and posses the land and eventually passed it onto him. Where a party fails to prove by credible evidence the root of his title he pleaded and relied on, his claim must be dismissed. See further on this OYADARE V. KEJI (2005) ALL NWLR (Part 247) 1583 at 1586. PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A.(Delivering the Leading Judgment): This Appeal germinated from the Judgment of the Taraba State High Court delivered by Abbare J. on 10th October, 2016. The Appellant commenced this Suit as Plaintiff before the lower Court claiming title over a fish pond called Bwajah (meaning Buffalo route), the land upon which the fish pond is situate and the surrounding land which the Appellant claimed was de forested by his Grandfather.
The Appellant called three witnesses in support of his claim, while the Respondent called four witnesses for his defence. The lower Court entered Judgment in favour of the Respondent. Dissatisfied, the Appellant filed his Notice of Appeal on 15/11/2016.

The Record of Appeal was first compiled and transmitted to this Court on 09/02/17 and deemed on 09/10/2017. It was re-compiled and re-transmitted by an order of this Court granted on 16/01/2019 and deemed the same date. The original Appellant?s Brief of Argument was filed on 09/03/2017. It was amended by an order of this Court granted on 07/03/2018 and deemed filed and served the same date. The Respondent?s Brief was filed on 06/04/2017 but was deemed filed and transmitted on

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07/03/2018. It was deemed on 9/10/2017 and further deemed on 7/03/2018. The Appellant challenges the Judgment of the lower Court as contained in the Notice of Appeal on three grounds:-
GROUND ONE
The learned trial judge erred in law when he held at Page 48 of the records that he is of the view that the line of succession as claimed by the Plaintiff in this case over the fish pond in dispute is not satisfactorily traced and has gaps or nexus which are not established, hence it shall be rejected and it is hereby rejected.
He further held that:
?The Supreme Court in John V. Emeka (2003) Vol. 16 NSQSR 278 stated that where a plaintiff fails to discharge the burden of proving his root of title to land as pleaded by him he cannot be entitled to declaration sought. He cannot also fall back on long possession and act of ownership as attempted by the plaintiff in this case to prove title?
PARTICULARS OF ERROR:
1) The Applicant/Appellant in his pleadings before the trial judge traced the line of his succession over the land and the fishpond and his root of title.
2) The trial judge failed to consider the evidence led by

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the Appellant and his witnesses as to the claim of succession over the land called Bwajah and the Appellants’ root of title over the land from which the pond was created.
3) The trial judge rejected the evidence of the Appellant and failed to consider the Appellant?s evidence of ownership of the adjacent land.
GROUND TWO:
The learned trial judge erred in law where he held at page 47 of the record:-
?Therefore as I said earlier in this judgment, it is trite that in a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. The plaintiff in this case must therefore satisfy this requirement?.

In the Appellant?s Brief, two issues were formulated for determination:-
1) Whether the Appellant claiming title to the fish pond can rely on acts of ownership and use of surrounding lands in addition to traditional history in proof of his case. (Distilled from ground one and two).

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2) Whether the failure of the trial judge to properly evaluate the evidence before him and who relied heavily on the eloquent submission of the Respondent Counsel has occasioned miscarriage of justice. (Distilled from ground three).
?
On issue one, it was submitted that the Appellant successfully pleaded his root of title to his grandfather and the Appellant?s act of ownership and use of surrounding land to the fish pond. Learned counsel referred to paragraphs 6, 7, 8, 9, 10, 11, 12, 13, (a), (b), (c), 14, and 21 of the statement of claim contained at Pages 4 to 8 of the Record of Appeal.

That from the above paragraphs of the pleadings and the witnesses? statements on oath in support of the pleadings, the traditional history of the successive devolution of the fish pond, the Appellant has proved his title to it. He referred to NWOKOROBIA V. NWOGU (2009) 10 NWLR Part 1150 Page 572 ? 573.

According to counsel, the Appellant has proved his possession and ownership of the connected lands to the land in dispute in accordance with Section 35 of the Evidence Act 2011.

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He also relied on the case of JINADU V. ESUROMBI ? ARO (2009) 9 NWLR (Part 1145) Page 89 Paragraph E ? G. He urged the Court to resolve issue one in favour of the Appellant.

On issue two, counsel submitted that the failure of the trial judge to properly evaluate the evidence before him thereby arriving at an illogical conclusion occasioned miscarriage of justice. He referred to ONWUGBULU V. EZEBUO (2013) 23 WRN 115. According to counsel, the failure of the trial Court to properly evaluate the pleadings and evidence of PW3 as contained in Paragraphs 13, 14, 16, 21 and 22 of the statement of claim contained at Pages 5 ? 6; and Paragraphs 8, 9, 16 (a) (c), 17, 18 and 26 of the witnesses written statement on oath as contained at Pages 18 ? 20 of the Record of Appeal occasioned miscarriage of justice.

That at Paragraphs 13, 14, 16, 21 and 22 of the pleadings, the Appellant has stated how the fish pond was founded and the ownership of the adjacent land by the Appellant?s grandfather. Counsel submitted that all these which are very vital and capable of tilting the scale of justice in favour of the Appellant were glossed over and were never considered

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by the trial judge.

According to counsel, the trial Judge relied on the genealogical tree of the Respondent without considering how the Respondent?s family found the fish pond. That the Respondent never pleaded how his ancestors founded the fish pond after settling in Bandawa from Kwararrafa kingdom as stated at Paragraph 10 (a) of the statement of defence reflected at Page 26 of the Record of Appeal. That the Appellant on the other hand was able to plead in detail how his grandfather first deforested the land and the numerous unchallenged acts of ownership of the surrounding land to the fish pond exercised by his family through the ages.

Counsel further submitted that the failure by the trial Court to properly evaluate the inconsistency and the manifest contradictions in the testimony of DW4 (the Respondent) as shown at Pages 76, 77, 79 and 81 of the Record of Appeal, occasioned miscarriage of justice. He urged the Court to resolve the two issues in favour of the Appellant, allow the Appeal and set aside the Judgment of the lower Court.

In his response, learned Respondent?s Counsel adopted the two issues formulated  by the Appellant?s Counsel.

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On the first issue, counsel submitted that the Appellant relied heavily on traditional history as such he is required to plead and lead credible evidence of his root of title. According to Counsel, PW 2 at Page 66 of the Record of Appeal stated that all what he told the Court was what the Plaintiff/Appellant told him. That PW2 told the lower Court under cross examination at Page 68 of the printed record that the Plaintiff?s father died 30 years ago, whereas his grandfather died 20 years, meaning that the Plaintiff?s father died before the Plaintiff?s grandfather by 10 years. That based on this, the lower Court found as a fact at Pages 167 ? 168 of the printed record that the Appellant cannot be said to have inherited the fish pond from his father who predeceased his grandfather.
?
Counsel further submitted that the Appellant failed to plead and lead evidence on how his ancestors moved from Lau Local Government Area to Karim Lamido Local Government Area and founded the fish pond. According to Counsel having failed to prove his title by traditional evidence, he cannot resort to acts of possession of any surrounding or adjacent

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land to cover up. He urged the Court to resolve the first issue in favour of the Respondent.

On issue two, Counsel submitted that it is trite that evaluation of evidence and ascription of probative value to it is the primary duty of the trial judge who had the opportunity of watching the demeanor of witnesses. He said the trial Court evaluated the evidence of the parties especially at Pages 131 ? 138 of the printed record where the trial judge reviewed the pleadings and at Pages 138 ? 149 reviewed the evidence of the parties alongside the issues for determination, marshaled same with the applicable laws before final determination.

That the Responded pleaded how he came about the fish pond through his ancestors by first settlement after migrating from Kwararrafa kingdom as shown in paragraphs (c), (d), (e), (f), (g), (h), (i), (j), (k) and (l) of the Respondent?s statement of defence contained at Pages 25 ? 28 of the Record of Appeal. He referred to AMADI V. AMADI (2011) 15 NWLR (Part 1271) 463. Learned Counsel referred to the findings of the trial Court at Page 177 of the Record of Appeal and submitted that the trial judge cannot be

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faulted because he considered the pleadings and the evidence of both parties, placed them on the imaginary scale, and preferred the evidence of the Respondent. He further argued that the trial Court did not rely on the eloquent submission of the Respondent?s Counsel. He urged the Court to resolve the second issue in favour of the Respondent, dismiss the Appeal and affirm the Judgment of the trial Court.

The Appellant in his pleadings before the lower Court especially paragraphs 6, 7, 8, 9, 10,11, 12 and as shown on Pages 4 ? 8 of the Record of Appeal stated thus:-
?6) The Plaintiff again avers that the land in dispute (Bwajah) was founded by his grandfather many years ago.
7) The Plaintiff further states that Bwajah was founded by his grandfather name Jula.
8) The Plaintiff states that his grandfather deforested the said land when it was a virgin land.
9) The Plaintiff also avers that the land in dispute forms part of the expanse of land deforested by his grandfather when it was still a virgin land.
10) The Plaintiff further states that the land in dispute is a seasonal fish pond.

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11) The Plaintiff also states that his grandfather gave birth to his father Shittu on the land in dispute.
12) The Plaintiff again states that his own grandfather Jula died and was buried on the land in dispute.
13) The Plaintiff states that after the death of his grandfather Jula, his own father inherited the land and exercised various acts of ownership undisturbed.
14) The Plaintiff further states that Shittu his father later died and after his death he inherited the land in dispute in accordance with the native law and custom of win-lau people?.

This Court observes that it is trite that a party relying on evidence of traditional history must plead his root of title in his pleadings and prove by credible evidence who his ancestors are and how they come to own and posses the land and eventually passed it onto him. Where a party fails to prove by credible evidence the root of his title he pleaded and relied on, his claim must be dismissed. See further on this OYADARE V. KEJI (2005) ALL NWLR (Part 247) 1583 at 1586. From the evidence of the Plaintiff?s witnesses as reflected on Pages 64 ? 71 of the Record of Appeal,

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especially that of PW1 whose testimony is at Pages 64 ? 66 of the Record of Appeal who testified that the Appellant inherited the fish pond from his father Shittu and Shittu inherited it from his father Julia who founded the fish pond. PW1 emphatically stated during cross examination as shown at Page 66 of the Record of Appeal that all that is contained in his witness written statement on oath was what the Appellant told him. His testimony on Page 66 of the Record reads:-
?Yes all that statement which I made to the Plaintiff?s counsel regarding the fish pond in question is what I was told by the Plaintiff?.

The Court further observes that PW2 under cross examination as is contained on Page 68 of the Record of Appeal, told the lower Court that the Appellant?s father died 30 years ago whereas his grandfather died 20 years ago. His evidence at Page 68 reads:-
?Yes, the grandfather of the Plaintiff died about 20 years ago and the father of the Plaintiff died 30 years ago?.

This Court observes that the implication of the testimony of PW2 as reproduced verbatim above is that the Plaintiff?s

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father died before the Plaintiff?s grandfather by 10 years.

Based on the above, the lower Court found as a fact that the Appellant who was the Plaintiff before the lower Court cannot be said to have inherited the fish pond from his father who pre-deceased his grandfather. The lower Court held at Pages 167 ? 168 of the Record of Appeal thus:-
?PW2 under cross examination stated that the grandfather of the Plaintiff died about 20 years ago and the father of the Plaintiff died about 30 years ago which by implication the Plaintiff?s father died before his grandfather and by that evidence, the Plaintiff cannot be said to have inherited the fish pond in dispute from his father?..?

I agree entirely with the lower Court that since the father of the Appellant pre-deceased his grandfather, the Appellant cannot be said to have inherited the fish pond from his father. More so. the evidence of PW2 as reproduced above goes contrary to paragraphs 12 and 13 of the pleadings of the Appellant before the lower Court which shows that the Appellant grandfather pre-deceased his father. It therefore follows that the evidence of PW2 is at variance with the pleadings.

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The Apex Court held in OYADARE V. KEJI Supra that:-
?Even the basic foundation that is traditional evidence has been rejected; there is nothing on which to found acts of ownership. Where the pleaded title to the land has not been proved, it will be unnecessary to consider acts of ownership and possession which are no longer acts of possession but acts of trespass.?

In the instant case, the Appellant could not give accurate description of the boundaries of the fish pond in dispute. At Page 70 of the Record of Appeal during cross examination the Appellant stated:- ?To the South of the fish pond I don?t know the name of the person farming there?. From the Record of Appeal at Page 70, the Appellant during cross examination stated that the fish pond is situated in Karim Lamido Local Government, that he has to cross the river on Lau to reach the fish pond in question in Karim Lamido. The Appellant therefore resides in Lau Local Government Area of Taraba State and had to cross the river to Karim Lamido Local Government Area. This Court observed that the Appellant failed to  plead and lead

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evidence on how his ancestors migrated from Lau Local Government Area to Karim Lamido and founded the fish pond or the adjacent land as the case may be. This led the Appellant to rely on acts of possession of the surrounding or adjacent land to cover up his defective traditional evidence. But the failure to prove the former will lead to the eventual collapse of the latter. The first issue is therefore resolved in favour of the Respondent and against the Appellant.

On the second issue, it is trite that evaluation of evidence and ascription of probative value to it, is the primary responsibility of the trial judge who had the opportunity of watching the witnesses and their demeanor; which the Appellate does not have. Where the trial Court failed to properly evaluate the evidence and ascribe value to it, the Appellate Court can do that if called upon. See AGALA & ORS. V. EGWERE & ORS (2010) AFWLR Part 532 Page 609 at 1614.

I have carefully gone through the Record of Appeal and discover that the learned trial judge at Pages 165 to 176, reviewed the entire evidence of both parties in line with their pleadings alongside the issues formulated for determination,

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marshaled same with the applicable laws before arriving at the conclusions he did. At page 175 of the Record of Appeal the lower Court held:-
?In the circumstances therefore, this Court having reviewed and considered the evidence of the Plaintiff and the Defendant in this matter is of the view that the line of succession as claimed by the Plaintiff in this case over the fish pond in dispute is not satisfactorily traced and has gaps or nexus which are not established, hence it shall be rejected and is hereby rejected.?

It therefore follows that the trial Court properly evaluated the evidence adduced by the parties and did not rely on the eloquent submissions of the Respondent?s counsel as submitted by the learned Appellant?s counsel. The second issue is therefore resolved in favour of the Respondent and against the Appellant. After a thorough appraisal of the Notice of Appeal and the Briefs of learned Counsel on both sides, I find that this Appeal is unmeritorious and is accordingly dismissed. The Judgment of the Taraba State High Court delivered by A.B. Abbare J. on 10th October, 2016 is hereby affirmed.

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CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother Abdullahi Mahmud Bayero JCA. He has dealt exhaustively with the issues for determination. I adopt the reasoning and conclusions in the lead judgment as mine and dismiss the appeal for lacking in merit.

 

 

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Appearances:

A.T. Chior, Esq. holding brief of F.D. NzargaFor Appellant(s)

E.O. AmericaFor Respondent(s)

 

Appearances

A.T. Chior, Esq. holding brief of F.D. NzargaFor Appellant

 

AND

E.O. AmericaFor Respondent