BAWA & ANOR v. WUNJI & ORS (2021)

BAWA & ANOR v. WUNJI & ORS

(2021)LCN/15158(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, May 27, 2021

CA/MK/111/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. SANI BAWA 2. PETER YARI APPELANT(S)

And

1. ELANG WUNJI 2. EFARA OKARA 3. JOHN ELANG 4. BAWA WUNJI RESPONDENT(S)

RATIO

WHETHER OR NOT A LEGAL RIGHT TO ENFORCE AN ACTION IS NOT A PERPETUAL RIGHT BUT A RIGHT LIMITED BY STATUTE

It is trite that a legal right to enforce an action is not a perpetual right but a right generally limited by Statute. After the date on which the applicable Statute says legal proceedings cannot be taken any person, having a right of action can no longer competently institute an action. In other words, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because, the period laid down by the limitation law or act had elapsed, see EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) PG 1 and OBIEFUNA V. OKOYE (1961) 1 ALL NLR 357. If a plaintiff’s action is Statute-barred, it affects the legal competence or jurisdiction of the Court.
The authorities of FRED EGBE V. ADEFARASIN (1987) 1 SC 1; ADIMORA v. AJUFO (1988) 1 NSCC 1005; AMUSAN V. OBIDEYI (2005) 6 SC 147 gave a guide on how to determine when a suit is statute barred, it held thusly:
“The calculation of whether an action has been statute barred is done by looking at the writ of Summons and statement of claim and if the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.” PER NIMPAR, J.C.A.

THE IMPORTANCE OF JURISDICTION TO ANY PROCEEDINGS

Jurisdiction generally is fundamental to any proceedings and any proceedings conducted without jurisdiction amounts to a nullity no matter how well conducted, see NDIC V CBN & ANOR (2002) LPELR-2000(SC) which held:
“Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but, once it is apparent to any party that, the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.” Per UWAIFO, J.S.C. PER NIMPAR, J.C.A.

THE APPROACH OF THE COURT IN THE INTERPRETATION OF STATUTES

In the matter of the interpretation of statutes, Courts have been well guided over the years with the clear boundary beyond which Courts cannot enter. Thus, while Courts have the power to interpret the law, it has no licence to veer into the legislative arena or constitute itself into the legislator, however harsh or distasteful the piece of legislation may be. Once the words are plain and unambiguous, the Court is duty bound to give effect to it. In other words, in the interpretation of statutes, words should always be given their ordinary meaning. Where the words are clear, unambiguous and to the point, any addition or subtraction will be sequel to introducing an illegal backdoor amendment. See Setraco Nig. Ltd. V Kpaji (2017) LPELR-41560(SC) 25-26, paras D-A, per Peter-Odili, J.S.C.; & Skye Bank Plc V Iwu (2017) LPELR-42595(SC) 118 paras B-C, per Ogunbiyi, J.S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT THE CAUSE OF ACTION IN A LAND LITIGATION ACCRUES WHEN ANOTHER PERSON GOES INTO ADVERSE POSSESSION OF THE LAND

Now, it is an established principle in land litigation that in matters relating to recovery of land, the cause of action of a claimant accrues when another person goes into adverse possession of the land in dispute and this principle is captured in the provisions of Sections 4 and 5 of the Limitation Law of Kaduna State. The term “adverse possession” was considered by the learned authors of Black’s Law Dictionary 5th Edition at Page 49. They say that, because of the statute of limitations on the bringing of actions for the recovery of land, title can be acquired to real property by adverse possession and in order to establish title in this manner, there must be proof of non-permissive use which is actual, open, notorious, exclusive and adverse for the statutory prescribed period. They commented that adverse possession depends on intent of occupant to claim and hold real property in opposition to all the world and it consists of actual possession with intent to hold solely for possessor to the exclusion of others and is denoted by exercise of acts of dominion over land including making of ordinary use and taking of ordinary profits of which land is susceptible in its present state. The term “adverse possession” has also been defined by the Courts. In Adejumo Vs Olawaiye (1996) 1 NWLR (Pt.425) 436, the Court of Appeal stated that for a claim of adverse possession to succeed, such possession must be adequate in continuity, in publicity and in extent to show that the possession was adverse to the competitors. In Ogunko Vs Shelle (2004) 6 NWLR (Pt.868) 17, the Court of Appeal again said that adverse possession occurs when certain acts are done on the land which is inconsistent with the claimant’s enjoyment of the land for the purpose for which he intended to use it. In Adedeji Vs Oloso (2007) 5 NWLR (Pt.1026) 133, the Supreme Court said that adverse possession by a defendant is one which derogates from and is inconsistent with the ownership title of a person who claims to be the true owner of the land. In other words, long possession of land per se is not enough to give the possessor rights to land. It must be coupled with adverse possession of the party pleading it and ouster of the possession of the true owner.”PER NIMPAR, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE

Evaluation of evidence is the primarily the duty of the trial Court and not Appellate Court. In this case, the trial Area Court is not bound to apply the Law of Evidence or rigorous technicalities of English procedures, see MAGAJI V OGELE (2012) LPELR-9476(CA) where OGBUINYA, J.C.A. had this to say:
“Perhaps, it was lost on the appellant that the trial Court, an Upper Area Court, is not by the prescription of law, a prisoner of cumbersome procedure, see Chike Ogo vs. Adibia Ogo (supra). It is a Court nearer to the people and not bound to follow, strictly, faithfully or religiously, the rigorous procedures in adjudication in so far as it attains substantial justice fairly, efficiently, transparently and devoid of any miscarriage of justice.” Per OGBUINYA, J.C.A. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Nasarawa State sitting in its Appellate jurisdiction delivered by HON. JUSTICE AISHA BASHIR ALIYU and HON. JUSTICE DANJUMA A. OYEGBENUM on the 24th day of October, 2016, wherein judgment was entered in favour of the Respondents against the Appellants. The crux of the judgment was that the suit was affected by the Limitation Edict, No. 3 of Plateau State as applicable to Nasarawa State. The Appellants, dissatisfied with the judgment, filed a Notice of Appeal and later an Amended Notice of Appeal dated 12th December, 2018, filed on the 31st of January, 2019 setting out 6 grounds of Appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. The Appellants alleged that the Respondents trespassed onto their land and the matter was reported to Odyong Yanpka of Panda Chiefdom, their Traditional Ruler who mediated and handed down a Customary Arbitral award in Exhibit B1 and dissatisfied with the award, the 1st Appellant’s father filed an action before the Grade One Area Court,

Gitata which was later transferred to Upper Area Court, Keffi. Issues were duly joined and trial conducted with the Plaintiff calling 7 witnesses and the Defendants called 4 witnesses. Three Exhibits were tendered as Exhibit A, B1 and B2 by parties. After evaluation of evidence, judgment was entered against the Appellants by the trial Area Court on the ground that the action was caught by the Limitation Law.

Dissatisfied with the judgment, the Appellants filed this Appeal to the High Court of Nasarawa State, the Court below in its Appellate jurisdiction and after due hearing, dismissed the appeal and affirmed the judgment of trial Court. Dissatisfied, they filed this appeal.

As required by the Rules of this Court, parties filed and exchanged briefs which were adopted at the hearing. The Appellants’ Amended brief is settled by ISAAC PAUL, ESQ., dated the 15th January, 2019, filed on the 31st January, 2019 but deemed on the 22nd day of May, 2019. It distilled 5 issues for determination as follows:
1. Whether the lower (Appellate) Court rightly upheld the award of the disputed farmland to the Respondents, notwithstanding the finding of the

trial Court that the Appellants case was Statute barred. (Distilled from Ground 2).
2. Whether the lower Appellate Court was right/justified in upholding the award of the disputed farmland to the Respondents in the absence of Counter Claim. (Distilled from Ground 3).
3. Whether the lower Appellate Court properly evaluated evidence of witnesses to this suit and consequently upheld the judgment of the trial Court in favour of the Respondents. (Distilled from Grounds 1 and 4).
4. Whether the lower Appellate Court’s decision upholding the findings of the trial Court that the Plaintiff’s case is Res-judicata by virtue of Exhibit B1, is justified in the eye of the law. (Distilled from Ground 5).
5. Considering the nature of the land holding by parties to this appeal, whether the lower Appellate Court was right to have upheld the finding that the Appellants case was affected by Limitation Edict, Statute barred by virtue of Section 3 of the Plateau State Statute of Limitation Edict, as applicable in Nasarawa State (Distilled from Ground 6).

The Respondents on their part filed an Amended Respondents’ Brief settled by S. O.

EKPO, ESQ. dated 14th day of June, 2019, on the 18th day of June, 2019, and formulated 3 issues for determination:
1. Whether the lower Court Appellate Court was not right to have upheld the decision of the trial Upper Area Court, dismissing the suit of the Appellants for being Statute Barred by operation of the Limitation Edict No. 3 of Plateau State as applicable in Nasarawa State.
2. Whether the lower Appellate Court was not right to refuse to disturb the finding of the trial Upper Area Court that Exhibit B1 operate as Res Judicata and refuse to re-evaluate the evidence before it, thereby, entitling the Respondents to judgment in their favour as per the contents of Exhibit B1.
3. Whether the Respondents were unable to establish their title to the disputed land.

The Appellants filed a Reply brief on the 26th day of September, 2019, dated the 25th day of September, 2019 but deemed on 3rd day of March, 2021.

APPELLANTS’ SUBMISSIONS
ISSUE ONE
The Appellants submitted that the lower Appellate Court was wrong to have upheld the award of the disputed farmland to the Respondents, having found that the Appellants’ case was

Statute barred. The Appellants submits that where a matter is statute barred, it bothers on the competence of the Court and the consequential order to be made is that of dismissal. The Appellants relied on JULIUS NDUKA V EDWIN OGBONNA (2011) 1 NWLR (PT. 1227) 153; A-G LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT. 111) 552 SC and DAPIANLONG V. DARIYE (2007) 8 NWLR (PT. 1036) 332 SC to submits that the lower Appellate Court was wrong to have upheld the verdicts of the trial Court with all its attendants’ consequences and in particular, the award of the disputed farmland to the Respondents, for reason that it has no jurisdiction to so do, having found the Appellants’ case to be statute barred. The Appellants urge the Court to resolve issue one in their favour.

ISSUE TWO
The Appellants argued that the Appellate lower Court was wrong to have upheld the trial Court’s judgment dismissing the Appellants’ case and awarding the disputed farmland to the Respondents in the absence of a Counterclaim. The Appellants restated the principle of Counterclaim as held in UNOKAN ENT. LTD V. OMUVWIE (2005) 23 WRN 165; TOTAL NIGERIA PLC V. MORKAH

(2002) 9 NWLR (PT. 773) 492 and ANOZIA V. A-G LAGOS STATE (2011) 4 WRN to submit that it is trite that where matters are fought by way of pleadings, the Defendant will file his Counterclaim which will afford the Plaintiff the opportunity of replying or responding to the said Counterclaim, but where matters are fought by way of oral evidence, like in the instant case, the Defendant will be required to raise his counterclaim orally, either at the mentioning of the matter or at the point of giving evidence. The Appellant further submits that the Respondent throughout the proceedings never raised any Counterclaim, never placed anything to suggest the existence of a Counterclaim and notwithstanding this, the trial Court proceeded and awarded the disputed land to the Defendants and in the process awarded the adjoining portion of the land belonging to Sabo Jatau to the Defendants, which the 3rd Defendant tactically included as belonging to them at the visit to locus (See page 10 and 59-68 of the record of Appeal). According to the Appellants, the Respondents traced their root of title to the 1st Respondent and from the records of Court, he never participated in

matter, he was not called to testify, neither was he around at the time of the visit to locus. Accordingly, if there any form of Counterclaim, the Counterclaimant has a burden of prove to discharge and must succeed on the strength of own case and not on the weaknesses of the Plaintiff’s case, citing NIG. PORTS AUTHORITY PLC V. DUNCAN M. V. (NIG) LTD (2011) 6 WRN and GARBA V. KUR (2003) 11 NWLR (PT. 831) 280 CA. Therefore, the Appellants avers that the trial Court was indeed wrong to have awarded the disputed farmland to the Respondents in the absence of a Counterclaim, the Court not being father Christmas to award what was not sought by a party. The Appellants urge the Court to resolve issue two in their favour.

ISSUE THREE
The Appellants restated the principle of proving title to land as held in DIKE V. UHUNMWANGHO (2011) 43 WRN; OMOTAYO V. CO-OPERATIVE SUPPLY ASSOCIATION (2010) 52 WRN 17; AJIRE V. AJIRE (2011) 11 WRN 153 and ONWUBUARIRI V. IGBOASOIYI (2011) WRN 8 to submit that in proof of their title, they are relying on 3 methods of proving title to land, firstly, traditional history and the law requires that a party relying on traditional

history must plead and prove who founded the land; in what manner the land was found and the names and particulars of successive owners through whom he claims, citing OWOEYE V. OYINLOLA (2012) 15 NWLR. The Appellants avers that the land in dispute was founded by their great grandfather Ujah and witnesses testified to that too, then Ujah came from the hill, deforested same and continued farming on the land, at Ujah’s demise Igbe inherited the land, also at Igbe’s demise, Bawa inherited the land, at Bawa’s demise, Danjuma inherited the land, then Galadima inherited the land from Danjuma. Galadima is presently the most elderly in the family and holds the land in trust for the family (see Pg. 25-27 and 35 to 38 of the record of Appeal). They continued that, there was difference in PW VI and PW VIII’s testimony. PW VI mentioned Igbe and never mentioned Ado while PW VIII mentioned Ado and never Igbe. They submit that, this minor inconsistency cannot affect the root of the Appellants’ title. The Appellant reproduced the testimonies of the Respondents’ witness at pages 49-65 of the record of appeal and states the contradictions, one of which is DW

V, said the land was founded by Kere, while DW IV said the land was founded by Bira, notwithstanding, this contradictions and conflicts in their testimonies, the trial Court founded that the land in dispute belong to the Respondents (See p. 118 of the printed record of appeal). Relying on ONISESE V. OYELEYE (2004) NNLR, 304; MOGAJI V. CADBURY NIG. LTD. SUIT NO: SC/129/1984; AJOSE V. FEDERAL REPUBLIC OF NIGERIA (2011) 6 NWLR (PT. 1244) 465 the Appellants submits that where there is conflicting stories of the party’s root of title, such root of title would be treated as unreliable. Continuing, the Appellants states that they have meet all requirements of proving traditional history as held in OWOEYE V. OYINLOLA.

Secondly, the Appellants submits that they are relying on acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership. The Appellants submits that PWI, II and PW V testified that they have been on the land for 35, 35, 20 years respectively at the instance of the Plaintiffs and their father, during the visit to locus, PW I and II showed their house on the land which they

built; they showed economic trees planted by them on the authority of the Plaintiffs’ father; Sabo Jatau (PW III) and Aruwa Weka (PW IV) testified as boundary neighbors and states that no other family than the Plaintiffs’ family have been in actual possession of the farmland till date (See P. 66-69 of the records) and the Appellants gave a vivid description of the family land at pages 178 to 204 of the Record of Appeal and also cited OKONKWO V. OKONKWO (2011) 1 WRN 12 to show that they have properly identified the land. On the part of the Respondents, DW 3 showed nothing apart from palm kernel tree and what he called Mfom, a natural demarcation and the stones which are natural features that can be seen by every passerby. He also claimed that he shared boundary with Monday Okara and his tenant Williams but none of them was present or anywhere to be found. The Appellant submits that assuming without conceding, that the Respondents’ acts of possession is anything to go by, their traditional history of root is sandy, no amount of positive acts of possession can resuscitate it. Relying on OKOCHA V. IRUBOR (2013) 36 WRN 48 and KASUMU V. BALOGUN (2013)

36 WRN 106. According to the Appellants, despite these obvious anomalies, the lower Appellate Court upheld the decision of the trial Court.

Thirdly, the Appellant submits that PW I and II testified that it was the Plaintiffs’ parent that gave them the land to farm and they have their houses thereon and that they have been enjoying peaceful and undisturbed possession of the said land till date (See P. 11-24 of the Records). The Appellants reproduced the DW II testimony at 44 to 49 of the Record of Appeal and states that it was filled with contradictions.

ISSUE FOUR
The Appellants argued that, in the course of the proceedings at the trial Court, Exhibit A which is a CTC of the proceedings between the Plaintiffs’ father and the 1st Defendant emanating from Odyong Yankpa’s palace which judgment was entered in favour of Appellants and Exhibit B1 is the same proceedings but carries different verdict. The trial Court relied on Exhibit B1, because it was tendered by DW V and not Exhibit A, because it was tendered by the present Odyong Yankpa and his not a party to the suit, another reason the trial Court relied on Exhibit B1 is the

presence of Exhibit 2 the proceedings of Grade one Area Court, Gitata. The Appellants stated that assuming without conceding that Exhibit B1 is the correct version of the record of proceeding of Odyong Yankpa, in respect of this matter, does the said Exhibit provide an enabling ground for the plea of res judicata in the light of Exhibit B1? The Appellant’s case is not caught up by the principle of Res-Judicata, as conditions precedent for the bindingness of customary arbitration is inherent in same, were not met. If the doctrine of Res-judicata (just like its counterpart statute of limitation), being a jurisdictional issue, robes the Court of its competency to further entertain a matter. The Appellants reproduced the principle of customary arbitration as restated in ALIBO V. OKUSIN (2010) 28 WRN and the content of the Exhibit A and B1. Thus, the lower Appellate Court was wrong to have upheld the judgment of the trial Court.

ISSUE FIVE
The Appellants submits that the subject matter of the suit giving rise to this Appeal is that parcel of land lying and situate at Mararaban Panda, Gitata District, Karu Local Government Area of Nasarawa

State and both parties relied on traditional history of first settlement which squarely falls within the purview of land holding under native law and custom and it is trite law that land held under native law and custom are not subject to Statute of Limitation, relied on ONISESE V. OYELEYE (2008) 21 WRN 47; KENSAL FARMS LTD V. NIGERCAT CONSTRUCTION COMPANY (2013) 18 WRN 6 OGUNLADE V. ADELEYE (1992) 8 NWLR (PT. 260) 409 and OGUNLANA V. DADA (2010) 1 NWLR. The Appellants submits that, assuming but not conceding that the Plaintiff’s case is statute barred, Section 3 of the Limitation Edict No: 16 of the 1988 of Plateau State inapplicable in the circumstance of this case because, the emphasis of the Appellants’ case is on right of action and it is the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make a claim, relied on AJAYI V. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT. 504). It is trite that, time begin to run in land cases when trespass is committed or possession is lost save where there is fraudulent concealment, citing D. A. C. CO. LTD V. J. M. IND. LTD (2008) 11 WRN 69.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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According to the Appellants, the first act of trespass was committed in 1998 and consequent upon which report was made to Odyong Yankpa same year. Judgment was given in favour of the Plaintiff, then from 1999, nothing was heard of the Defendants touching the land until 2010, when they resurfaced to park sand. The act of the Defendants in 2010, prompted the filing of the suit giving birth to this Appeal (See P. 16 and 17, 26 and 27 of the Record of appeal). Also, Section 3 of the Limitation Edict No. 16 does not operate alone but in conjunction with Section 4 and 9 of the Edict. The Appellants submits that the provision of Section 4 and 9 of the Edict requires that limitation period starts counting only when there is a trespass on the land, a party in possession is dispossessed of his possession and an adverse possession raise thereto, conversely, where such right of action accrues on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land. Furthermore, the Appellants submit that the Plaintiffs by their evidence and during visit to the locus,

have proven to the Court that they have never been disposed of their possession over the disputed land. The Appellants reproduced the evidence of PW8, PW6 and PW 5 (See P. 16 and 17, 26 and 27 of the Record of appeal). Finally, the Appellants submit that the trial Court failed to evaluate evidence which is the primary function of the trial Court. They restated the principle of evaluation of evidence as held in AGBI V. OGBEH (2006) 11 NWLR (PT. 990) 65 SC; SHA V. KWAN (2000) 5 SC 178; ADEBAYO V. ADUSEI (2004) 4 NWLR (PT. 862) 44 CA. The Appellants urge the Court to resolve all the issues raised by the Appellants in their favour and allow the appeal.

RESPONDENTS’ BRIEF
ISSUE ONE
The Respondents argued that the lower Appellate Court was right to have upheld the decision of the trial Judge of the Upper Area Court, Keffi, and dismissing the Appellants’ suit for being statute barred after it evaluated the evidence tendered by parties and the entire circumstances as well as the law under consideration. The Respondents reproduced the provision of Section 3 of the Limitation Edict No. 16 of 1988 of Plateau State to submit that, the fact of the case is

as follows: the Appellants’ father initiated a customary arbitration sometime in 1998, against the Respondent and the trial Court found that the result of the arbitration was that the Respondents were successful and were awarded the disputed land in 1998, feeling dissatisfied with the decision, the Appellants’ father approached the Grade 1 Area Court in Gitata but the action was transferred to the Upper Area Court Keffi. The Respondents asked whether the matter is not statute barred? And answered by saying that, whether an action is statute barred or not, is a matter of simple application of the law to the arithmetical calculation of the time lapse from the date when the cause of action arose to the filing of the action. RelyingMUOMAH V. SPRING BANK PLC (2009) 6 WRN 122 and MERCANTILE BANK OF NIGERIA PLC V. FETECO (NIG.) LTD. (1982) 2 NWLR (PT. 540) 143. The Respondents restated the principle of cause of action to submits that the action of the Plaintiffs having been commenced in 2011 at the trial Court 13 years after the cause of action arose, the Appellants failed to diligently prosecute their case until such have become caught up by the limitation

law. Also, the Appellants contended that the land held under native law and custom is not subject to statute of limitation and relied on ONISESE V. OYELEYE (2008) 21 WRN 47 RATIO 2 AND 4; KENSAL FARMS LTD V. NIGERCAT CONSTRUCTION COMPANY (2013) 18 WRN 6 and OGUNLADE V. ADELEYE (1992) 8 NWLR (PT. 260) 409 which did not support their case in any form. The Respondents avers that it is trite that the Court must construe a statute according to its expressed intention,OSAHON V. FEDERAL REPUBLIC OF NIGERIA (2013) 43 WRN 69; ADISA V. OYINWOLA (2000) 10 WRN, 125, hence, the intention of the framers of the Plateau State Limitation Edict No. 16 as applicable to Nasarawa State was to extinguish all cause of action for the recovery of land after a period of 10 years since the accrual of the cause of action as is the issue in this Appeal, citing WILLIAMS V. WILLIAMS (2008) 8 SCNJ 156 and AINA V. JINADU (1992) 4 NWLR (PT. 233).

The Respondents also argued that the Appellants alleged that there were different acts of trespass by the Respondents that gave rise to different cause of action at different times, however, the only act of trespass has been settled at the

Upper Area Court and decision was given in favour Respondents and the land awarded to them. The Respondents asserts that it is trite that trespass can never ripen into title no matter how long it persists as held D.A. COSTA V. IKOMI (1968) 1 ALL NLR 394 and DOKUBO V. OMONI (1999) 8 NWLR (PT. 516) 647. The Respondents urge the Court not to disturb the findings of the lower Appellate Court, as they have not been shown to be perverse, relying on UNION BANK OF NIGERIA V. AWMAR PROPERTIES LTD (2018) LPELR-44376(SC); IKENNE V. STATE (2018) LPELR-44695 (SC); UGOCHUKWU V. UNIPETROL (2002) 9 SCNQR 536 and MAJEKODUNMI & ORS V. ABINA (2002) 9 SCNQR 139. Also, the Respondents submitted that if there is anyone with a right of action in trespass, it is the Respondents, on the strength of the subsisting judgment they have, over the disputed land against the Appellants, by way of the customary arbitration, the Appellants were very much aware of the fact that the Respondents received tributes from their own witness (PW5) who has been so doing for about 10 years yet they did nothing (See P. 41-48 of the records).

The Respondents submits that the Appellants alleged

fraudulent concealment by the Respondents which was not argued at the trial Court nor the lower Appellate Court, however, if the Appeal Court intends to consider same, can it be said that based on the preponderance of evidence that the Respondents are guilty of any fraud concealed or not? Concealed fraud is an equitable remedy which avails a party in the case of fraud and in the absence of laches on the part of the person allegedly defrauded, relied onAROWOLO V. FABIYI (2002) 9 NSCQR, 350. Continuing, the Respondents asserted that the Appellants have certainly not shown how the Respondents effectively had any fraudulent moves on them and even if they have, were the Appellants not guilty of laches having been aware of the customary arbitration yet filing a case at the Grade 1 Area Court over same and then abandoning it for donkey years? The Respondents also submits that, the Appellants argued that the proper order for the Court to have made was that of dismissal of the Appellants’ case as a statute of limitation touches on jurisdiction but the correct position of law is that the Upper Area Court Keffi is an Area Court and such Courts are not viewed with

strict adherence to procedure and technicalities so long as substantial justice is met, cited AGBEJE & ORS V. AJIBOLA (2002) 9 NSCQR 3.

The Respondents contends that, it is trite that where a main claim is dismissed, a party who has a Counterclaim is not affected and is not relieved of the duty of proving same, the counterclaim does not rely on the main claim to succeed or fail. Relied on KWAJAFFA V. B.O.N. LTD (1999) NWLR (PT. 587) 423 to further state that they were not bound to file any counter claim at the trial Area Court because, they have establish not only the customary arbitration which constitutes estoppels per rem judicata. Citing NISHIZAWA V. JETHWANI (2001) 8 W.R.N 156. The Respondents urge the Court to resolve this issue in favour of the Respondents.

ISSUE TWO
The Respondents continued to argue that Exhibit B1 serves to operate as res judicata, thereby, entitling the Respondents to judgment in their favour. The Respondents relied on OBASI V. MERCHANT BANK (2001) 8 WRN 53 and OSHODI V. EYIFUNMI (2000) 13 NWLR (PT. 684) to restate the conditions to be fulfilled by a party relying on plea of estoppel per rem judicata in order to

succeed, citingRANKING UDO & ORS V. MBIAM OBOT & ORS (1989) 2 NWLR (PT. 95) 72 and IGWEGO V. EZEUGO (1992) 6 NWLR (PT. 249) 561. According to Respondents, Exhibit B1 is evidence of an award made pursuant to a customary arbitration, activated by the father of the Appellants before the Odyong Nyankpa, their paramount ruler. The parties in this appeal have not contested the outcome and binding effect of the arbitration but the lower Appellate Court properly evaluated the contents and evidential value of the documents relating to the said customary arbitration which are Exhibit A, B1 and B2. The Respondents reproduced the holding of the lower Appellate Court on Exhibit A at page 119 of the Record of Appeal and submits that the reason the trial Court rejected Exhibit A was as a result of the uncontradicted and unchallenged testimony of witnesses to the fact that the present Odyong Nyankpa was interested in the land which apparently influenced the production of Exhibit A, citing AGBEJE & ORS V. AJIBOLA (2002) 9 NSCQR 4 to restate the principle of evaluation of evidence. The Respondents contends that, the lower Appellate Court need not have proceeded to

re-evaluate evidence of witnesses who testified at the lower trial Area Court having come to the conclusion that the matter was indeed statute barred after a painstaking evaluation by the trial Upper Area Court Judge.

ISSUE THREE
The Respondents argued that it is trite that in declaration of title, the plaintiff must establish his title through cogent and credible evidence and the Plaintiff must prove his title on the strength of this case and not the weakness of the defence as held in LAYINKA V. MAKINDE (2002) 10 NSCQR 646. The Respondents restates the principle in establishing title to land as held in IDUNDUN V. OKUMAGBA (1976) 9-10 SC and AJIBULU V. AJAYI (2013) 56 NSQCR 475. The Respondents submits that the Appellants failed to establish their title by leading credible and cogent evidence that will tilt the imaginary scale of justice in their favour, that is the reason they relied heavily on traditional history as their root, however, their witnesses did very little to help their case. Their witnesses gave irreconcilable and agitating evidence that does not and could not have supported their case in any ramification. The Respondents reproduced

the testimonies of PW1, PW5 and PW7 at pages 13, 24 and 37 records of Appeal, and the case of ONISESE V. OYELEYE (2004) NNLR, 304. According to the Respondents, it is trite law that, parties to a suit are not only bound by the evidence they give but also the evidence of their witness(s) as the case maybe. However, the Defendants on their part led credible and cogent evidence establishing ownership of the land by way of customary arbitration as well as their title to the disputed land. The Respondents also reproduced the testimonies of DW1, DW3 and DW4 at pages 41, 49, 49,51 and 58 of the records of appeal and submits that these testimonies were not challenged by the Appellants and the implication is that, they are deemed admitted as held inN.A.S V. UBA (2004) SCNJ 388. The Respondents averred that they met the requirements of the law and are entitled to the judgment of this Court in their favour. The Respondents urge the Court to uphold the judgment of lower Appellate Court and dismiss this appeal with substantial cost of 1 million naira only.

APPELLANTS’ REPLY BRIEF
The Appellants submitted that the Respondents missed the point and

consequently failed to address in particular the issues raised by the Appellants. Thus, the Respondents alleged that the Limitation Law as applicable in Nasarawa State applies to all land held under any manner of holding and cited SABO ZANGYE V. AYIMABA TUKURA (SUPRA) and AGBEJE & ORS V. AJIBOLA (SUPRA) and submits that the Upper Area Court is first Court of instance and thus, must not be strict with matters of procedure or technicality. However, the Appellants submit in the contrary that, the authorities cited are relevant to this case and the issues on appeal are not procedural or technical which occasioned miscarriage of justice but of wrong application of law. It is trite that where the law provides for doing of a thing, it must be done, thus, awarding the disputed farmland after the holding of Statute barred and Res judicata, was in excess of trial Court’s jurisdiction. The Appellants urge the Court to hold same and allow the appeal.

RESOLUTION
After a careful review of the Notice of Appeal, the Record of Appeal and the briefs of Counsel on both sides, I am of the view that the issues distilled and donated by the Appellants for

determination in this appeal fully represents their complaint against the judgment appealed against. This is to enable the Court effectively resolve all areas of complaint against the judgment of the Court below. The issues shall be resolved all together for expediency and in view of the question of evaluation of evidence which runs through most of the issues formulated, which is to avoid repetition.

The fundamental issue raised was the challenge to the jurisdiction of the trial Court vis a vis the provisions of the Limitation Law of Plateau State as applicable to Nasarawa State and whether the suit was statute barred. The Court below in its Appellate jurisdiction upheld the judgment of the trial Area Court primarily on the finding that the suit was statured barred. The trial Court was the Upper Area Court; the Area Court system is a simplified system of Court which operates, devoid of technicalities, generated by Procedural Rules applicable to Courts of record. The Area Court is not a Court of record and is not bound by the Law of Evidence.

It is trite that a legal right to enforce an action is not a perpetual right but a right generally limited by

Statute. After the date on which the applicable Statute says legal proceedings cannot be taken any person, having a right of action can no longer competently institute an action. In other words, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because, the period laid down by the limitation law or act had elapsed, see EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) PG 1 and OBIEFUNA V. OKOYE (1961) 1 ALL NLR 357. If a plaintiff’s action is Statute-barred, it affects the legal competence or jurisdiction of the Court.
The authorities of FRED EGBE V. ADEFARASIN (1987) 1 SC 1; ADIMORA v. AJUFO (1988) 1 NSCC 1005; AMUSAN V. OBIDEYI (2005) 6 SC 147 gave a guide on how to determine when a suit is statute barred, it held thusly:
“The calculation of whether an action has been statute barred is done by looking at the writ of Summons and statement of claim and if the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”
The relevant and applicable law in the instant appeal is Section 3 of the Plateau State Edict No. 16 of 1988 as applicable to Nasarawa State.

It provides thus:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him, or if it first accrued to some person whom he claims, to that person.”
The Court below upheld the finding that the claim of the Appellants was statute barred and the implication of same is that the Court will lack jurisdiction because, the right of action has been extinguished by the operation of law, the duty of the Court in such situations is to strike out the suit and not take any step thereafter, see IZEZE V INEC & ORS (2018) LPELR- 44284(SC) which in clear terms held thus:
“Once a Court lacks jurisdiction as a result of a fundamental defect in the originating process, all that can be done is to strike out the case.”

without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but, once it is apparent to any party that, the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.” Per UWAIFO, J.S.C.

Therefore, if the trial Area Court lacked jurisdiction to hear the claim of the Appellants because it is statute barred, the claim should have been struck out which means no witness(es) can be taken and nothing should be considered or evidence evaluated that can lead to the determination of the claim on the merit as was done and to give for either of the parties, see AJAYI V ADEBIYI & ORS (2012) LPELR-7811(SC) which held thusly:]

“It is however trite that where the issue of limitation is raised in defence of an action, it is only proper that the issue

should be addressed first, as it makes no sense to decide the merit of a matter that is statute-barred. In the event of a successful plea of limitation law against a plaintiff’s right of action, the action becomes extinguished and unmaintainable at law. Muemue v. Gaji (2001) 2 NWLR (pt.697) pg.289. Egbe v. Adefarasin (1985) 1 NWLR (pt.3) pg.549. Sosan v. Ademuyiwa (1986) 2 NWLR (pt.27) pg.241.” Per ADEKEYE, J.S.C.
I agree with the Appellants that if the trial Area Court found that the claim was statute barred, it should not have gone into taking evidence and if the issue arose after evidence, then the trial Area Court should not have gone into evaluation and determination leading to judgment and not to have dismissed the claim of the Appellants and awarded the land to the Respondents particularly so, where there was no Counterclaim.

Generally, a Counterclaim being a separate action from the main claim could have survived having a life of its own. The trial Area Court being a Court which does not observe the rules applicable to English Court, the demand that the Respondents file a counterclaim is going too far, however, the Respondents could have

simple told the Court they also claim the land and once recorded, it will suffice as a counterclaim, but none of such was done before the trial Area Court. The Appellants can rightly say there was no counter claim to warrant the award of the land to the Respondents. See the case of GALADIMA V TAMBAI & ORS (2000) LPELR-1302(SC) which held thus:
“The Area Courts are not bound by strict procedure peculiar to English Common Law Courts. Thus, the complainant before them needs even not lodge his complaint in writing; it is enough for him to verbally tell the Court what his grouse is, but this must be recorded by the Judge or Court clerk in writing. There is no strict formula for filing a complaint. The Area Courts are what one may call grassroots Courts, with cheap procedure and expeditious hearing of the matters before them, thus, making them not only the nearest Courts to the people (or Common Man) but also cheapest fora for litigants.” Per BELGORE, J.S.C.
The trial Area Court was gratuitous in awarding the land to the Respondents. The Appellate Court below erred in affirming the judgment because the trial Area Court in the face of its finding that the

claim was statute barred. That divested the Appellate trial Court of the competence to determine the claim and therefore could not have dismissed it and could not have awarded the land to the Respondents. On this ground, issue one and two are resolved in favour of the Appellants.

Closely related to above issues, is issue 5, as donated by the Appellants which has a bearing to issue one above. It questions the applicability of the Limitation Law applicable to Nasarawa State in view of the location and the holding or title over the land held under native law and custom as per the claim initiated by the Appellants. Several authorities were cited for and against the assertion that generally, a Limitation Law is not applicable to land held under Native law and custom. See ONISESE V OYELEYE (2008) 21 WRN 47; OGUNLADE V ADELEYE (1992) 8 NWLR (Pt. 260) 409 SC and a few other authorities which held that Limitation laws of the respective States did not apply to land held under Native Law and Custom and gave basis and the historical perspectives giving rise to that legal position, see JONATHAN V AWAN (2015) LPELR-40755(CA) which held thusly:
“It is settled law that

limitation law is not applicable to land held under customary tenure. Thus, no matter how long an adverse possessor remained on land held under customary tenure, his possession cannot ripen into rights of ownership in the land against the original owner – Olohunkun Vs. Teniola (1991) 5 NWLR (Pt 192) 501, Oni Vs. Olokun (1995) 1 NWLR (Pt 370) 189, Olugbode Vs. Sangodeyi (1996) 4 NWLR (Pt 444) 500, Odekilekun Vs. Hassan (1997) 12 NWLR (Pt 531) 56, Ogunjemila Vs. Ajibade (2010) 11, NWLR (Pt 1.206) 559. This point was succinctly made by Dongban- Mensem, J.C.A. in Ogunlana Vs. Dada (2010) 1 NWLR (Pt 1176) 534 at 564 C-D thus: “Land possession and ownership is a customary practice which is jealously guarded in different forms by different communities in Nigeria. One common denominator in all these practices is the perpetuity of land ownership by its original owners. In the instant case, it would therefore be importing an alien customary law into the Yoruba customary land holding to apply the statute of limitation to divest the Itire people of their customary law title.” Per ABIRU, J.C.A.
It is very obvious that the Limitation laws of those States have

specific provisions excluding lands held under Native Law and Custom from the application of the Limitation Law, for example the case of MAJEKODUNMI & ORS V ABINA (2002) LPELR-1826(SC) which specifically held thusly:
“It is to be noted that in Lagos, the Limitation Law does not apply to land which is subject to customary law. See Section 68(1) of the Limitation Law.” Per UWAIFO, J.S.C.
Section 68(1) of the Lagos State Limitation Law provides as follows:
“Subject to the provisions Subsection (2) of this Section, this law shall not apply to actions in respect of any matter which immediately before the commencement of this law was regulated by customary law”.
The provision was considered in the case ofLAWANI & ANOR V GRILLO & ORS (2018) LPELR- 44914(CA) as follows:
“By Section 16 (2) (a) of the Limitation Law of Lagos State, it is provided thus: “No action shall be brought after the expiration of twelve years from the date on which the right of action accrued lo the person bringing it” However, by Section 68(1) of Limitation Law of Lagos State, it is also provided thus: “Subject to the provisions Subsection (2) of this

Section, this law shall not apply to actions in respect of any matter which immediately before the commencement of this law was regulated by customary law”. Per GEORGEWILL, J.C.A.
It is clear that there is no corresponding provision in the Plateau State Limitation Law, excluding land held under Native Law and Custom and the definition of land given therein, did not create a distinction but gave a general description of land. In the absence a statutory provision excluding such land, the authorities cited in support of the exclusion cannot be relevant as there is no legal basis for it.
The position of the Court on the Plateau State Limitation Law as applicable to Nasarawa State on the vexed question was restated in the case of ZANGYE V TUKURA (2018) LPELR-45889(CA) where SANKEY, J.C.A. had this to say:
“On the question of whether or not the Limitation Law applies to land-holdings under native law and custom, it is apparent from the above Limitation Law of 1988, applicable to Nasarawa State, that it does. The law makes no distinction on the nature of land-holdings. In this regard, I have read the decision of this Court referred to by the Appellant

in Ogunlana V Dada (supra) at pages 559-560, paras G-A per Rhodes-Vivour J.C.A. (as he then was), wherein it was held as follows: “Statutes of limitation are not applicable to land tenures held under native law and custom. Accordingly, the provision of Section 12(2), Limitation Law of Lagos State or any statute of limitation cannot be invoked to stop execution of judgment where the land is held under native law and custom…” The rationale behind this holding is that land possession and ownership is a customary practice which is jealously guarded in different forms by different communities in Nigeria. One common denominator is the perpetuity of land ownership by its original owners. It is however evident that, the Limitation Law under consideration in that case was Section 12(2) of the Limitation Law of Lagos State. It reads: “An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable.” The Limitation Law under consideration in the instant case was however framed by the lawmaker in more absolute terms. It specifically states that, it applies across board to “land held under a right

of occupancy or any other tenure” or “any land”. Thus, in the more recent case of Nwiboeke V Nwokpuru (2016) LPELR-41524(CA) 13, this Court drew an important distinction as follows: “The argument by learned Counsel for the respondent that, limitation laws are not applicable to customary law or actions to recover land, held under Customary Law cannot be accommodated by the clear words of S. 3 of the Limitation Law. Such argument is contrary to that provision. It is clear from the opening words of that provision thusly; ‘No action shall be brought by any person to recover any land’, that its legislative intention is that it should apply to actions by all persons in respect of lands without exception. This is supported by the definition of land in S. 2 of the same Limitation Law as including land held under a right of occupancy or any other tenure.” In the matter of the interpretation of statutes, Courts have been well guided over the years with the clear boundary beyond which Courts cannot enter. Thus, while Courts have the power to interpret the law, it has no licence to veer into the legislative arena or constitute itself into the legislator, however harsh or

distasteful the piece of legislation may be. Once the words are plain and unambiguous, the Court is duty bound to give effect to it. In other words, in the interpretation of statutes, words should always be given their ordinary meaning. Where the words are clear, unambiguous and to the point, any addition or subtraction will be sequel to introducing an illegal backdoor amendment. See Setraco Nig. Ltd. V Kpaji (2017) LPELR-41560(SC) 25-26, paras D-A, per Peter-Odili, J.S.C.; & Skye Bank Plc V Iwu (2017) LPELR-42595(SC) 118 paras B-C, per Ogunbiyi, J.S.C. Consequently, the case of Ogunlana V Dada (supra) cannot be forced on the facts of this case where it is contrary to the express provisions of the applicable law governing the land in dispute. It is distinguishable from the facts of the instant case since a Limitation Law, such as the one now under consideration, was not a factor in that case. It cannot therefore serve as an authority for the proposition made by the Appellant. I find that the Court below came to a right decision that by virtue of Sections 2 and 3 of the Limitation Law of Plateau State (Edict No. 16) 1988 applicable to Nasarawa State, suit no

CV/05/2015 was statute-barred.”
Above is the settled position of this Court and I have nothing more to add to it. It is settled that the Limitation Law of Plateau State as applicable to Nasarawa State applies to land held under Native law and custom. Consequently, the Limitation Law of Plateau State as applicable to Nasarawa State is applicable to the entire land in Nasarawa State inclusive of the land in dispute.

We now have to determine whether the finding that, the claim filed by the Appellants which was statute barred. The contention of the Appellants under this issue is that the claim was filed within 10 years from when the cause of action accrued to them. Cause of action has received judicial attention in a plethora of cases, see ADEKOYA V FHA (2008) LPELR-105(SC) which defined cause of action thusly:
“In Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) 1 N.W.L.R. (Part 47) 1 at 20 this Court Per Oputa J.S.C. explained “cause of action” as follows: “Now, let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise

to a right of action. It is the factual situation which gives a person a right to judicial relief.” Per TABAI, J.S.C.

It is clear that trespass is the foundation of the claim and in rural areas, a complaint that trespass was committed is another way of saying title to land is in issue. The Appellants alleged that trespass was first committed in 1998 when on the intervention of Traditional Ruler, they retained the land, there was no challenge to the Appellants’ possession until the recent act of trespass.

The Appellants who were not present at the Chief’s palace when the decision was handed down were informed that the land was given to the Respondents. That informed otherwise, the decision to go to Court, their father filed a claim at the Area Court but was not heard until 2010 when the Respondents entered the land again and were removing sand that is what led to the filing of the suit, the subject of this appeal. The argument of the Appellants is that they had been in possession until the trespass of 2010 in which there was an attempt to dispossess them of the land and brought to the fore Section 4(1) and 9(1) of the Limitation Law. The said

provisions say thus:
“where the person bringing an action to recover land or some person through whom he claims, has been in possession thereof, and has while entitled thereto, been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.
9(1): “No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (adverse possession) and where under the foregoing provisions of this Edict any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

The argument of the Appellants is that, possession was only disturbed in 2010 as made out by the evidence of PW8 who also confirmed that the Respondents came to remove sand from the land in 2010 and that was after the initial challenge in 1998 after which the Traditional Ruler arbitrated. PW6 also told the trial Area Court that it was 2010 that

the Respondents came to disturb their possession by selling part of the land. The active possession of the land by the Appellants and those who came to the land with their authority was established before the trial Area Court. The possession was disturbed in 2010. With all the trespass in 1998 and up until 2010, possession was not lost to the Respondents until they began to remove sand from the land. Therefore, since the Appellants retained possession until 2010, when the Respondents began to interfere with the possession, if adverse possession of land gives rise to a cause of action, the cause of action can be reasonably said to accrue in 2010 when the Respondents made attempts to sell the land and also remove sand from the land disturbed the possession by the Appellants. The position of the Limitation law is that the right of action accrues when adverse possession is taken of the land as in this case, the import of adverse possession was fully considered in the case of ZANGO V DANTATA & SAWOE CONSTRUCTION (NIG) LTD & ANOR (2015) LPELR-25898(CA) where my learned brother ABIRU, J.C.A. had this to say:
“The present action was commenced in the Lower

Court by a writ of summons dated the 6th of August, 2008. By Section 4 of the Limitation Law of Kaduna State, the Appellant was obligated to commence an action for recovery of land within ten years of accrual of the cause of action. Now, it is an established principle in land litigation that in matters relating to recovery of land, the cause of action of a claimant accrues when another person goes into adverse possession of the land in dispute and this principle is captured in the provisions of Sections 4 and 5 of the Limitation Law of Kaduna State. The term “adverse possession” was considered by the learned authors of Black’s Law Dictionary 5th Edition at Page 49. They say that, because of the statute of limitations on the bringing of actions for the recovery of land, title can be acquired to real property by adverse possession and in order to establish title in this manner, there must be proof of non-permissive use which is actual, open, notorious, exclusive and adverse for the statutory prescribed period. They commented that adverse possession depends on intent of occupant to claim and hold real property in opposition to all the world and it consists of

actual possession with intent to hold solely for possessor to the exclusion of others and is denoted by exercise of acts of dominion over land including making of ordinary use and taking of ordinary profits of which land is susceptible in its present state. The term “adverse possession” has also been defined by the Courts. In Adejumo Vs Olawaiye (1996) 1 NWLR (Pt.425) 436, the Court of Appeal stated that for a claim of adverse possession to succeed, such possession must be adequate in continuity, in publicity and in extent to show that the possession was adverse to the competitors. In Ogunko Vs Shelle (2004) 6 NWLR (Pt.868) 17, the Court of Appeal again said that adverse possession occurs when certain acts are done on the land which is inconsistent with the claimant’s enjoyment of the land for the purpose for which he intended to use it. In Adedeji Vs Oloso (2007) 5 NWLR (Pt.1026) 133, the Supreme Court said that adverse possession by a defendant is one which derogates from and is inconsistent with the ownership title of a person who claims to be the true owner of the land. In other words, long possession of land per se is not enough to give the possessor

rights to land. It must be coupled with adverse possession of the party pleading it and ouster of the possession of the true owner.”
From the definition and description of adverse possession, it is obvious that the Appellants did not lose possession and the Respondents’ acts of exercising adverse possession started in 2010 and going by the combined effect of the Section 4(1) and 9(1) of the Limitation Law of Plateau State, the action was not statute barred since the attempts by the Respondents in 1998 did not include adverse possession as in the latest attempt which led to the appeal under consideration. Therefore, the claim before the trial Court was not statute barred as was found by the Area Court and affirmed by the Appellate Court below. I find for the Appellants under issue 5 which I resolve in their favour and against the Respondents.

It has been observed earlier on that, inspite of the finding that the claim was statute barred, the trial Area Court still determined the claim on the merit and proceeded to enter judgment for the Respondent.

The Appellants under issue three, challenged the evaluation done by the trial Area Court which the

Appellate Court below merely adopted without addressing the complaint; they contended that it failed to re-evaluate the evidence. Evaluation of evidence is the primarily the duty of the trial Court and not Appellate Court. In this case, the trial Area Court is not bound to apply the Law of Evidence or rigorous technicalities of English procedures, see MAGAJI V OGELE (2012) LPELR-9476(CA) where OGBUINYA, J.C.A. had this to say:
“Perhaps, it was lost on the appellant that the trial Court, an Upper Area Court, is not by the prescription of law, a prisoner of cumbersome procedure, see Chike Ogo vs. Adibia Ogo (supra). It is a Court nearer to the people and not bound to follow, strictly, faithfully or religiously, the rigorous procedures in adjudication in so far as it attains substantial justice fairly, efficiently, transparently and devoid of any miscarriage of justice.” Per OGBUINYA, J.C.A.
That being the case, the Appellate Court below is under a duty to evaluate the evidence and ensure it conforms to the requirement of substantial justice but it merely rubber stamped what the trial Area Court did without any sign it considered the grouse of the

Appellants. Appeals arising from judgments of Area Courts cannot just be glossed over without a re-evaluation of evidence.

Undoubtedly, re-evaluation at the Appellate Court is only necessary where the Court below failed to evaluate the evidence adduced otherwise, this Court cannot just begin the process of re-evaluation except where the Appellate Court below failed in that duty, see NAGOGO V CPC &ORS (2012) LPELR-15521(SC) where the apex Court held:
“Of essence is the basic principle that the evaluation and the ascription of probative value to such evidence are the primary function of a trial Court. Therefore, where such a trial Court has properly evaluated the evidence, it is not the business of the appeal Court to substitute its own views for those of that Court of trial. The duty of the appeal Court thereafter being of a secondary nature is to ascertain whether or not there is evidence on which that Court of trial acted and when that has been done the Court of Appeal does not intervene even if it would have handled the situation differently. However, if the appellate Court finds some dereliction of duty in the evaluation evidence then it must step

in or interfere to do what the trial Court should have done. This is also applicable where in evaluating a wrong conclusion is reached by the trial Court. I must quickly add, that if there is a lapse in the evaluation of evidence by the trial Court or a reaching of a wrong conclusion after an evaluation, and the Court of Appeal failed to set things right by carrying out the evaluation, then it behooves the Supreme Court to rectify the anomaly by carrying out the evaluation which ab initio was not done or not effected as the occasion warranted by the Court below. In this wise is a surfeit of judicial authorities and I shall refer to a few, viz: Akinloye v. Eyiyola (1968) NNMLR 92 at 95; Enang v. Adu (1981) 11 – 12 SC 25 at 39; Woluchem v. Gudi (1981) 5 SC 291 at 326; Adebayo v. Adusei (2004) 4 NWLR (Pt.862) 44 at 77; Oyedeji v. Akinyele (2002) 3 NWLR (Pt. 755) 586 at 616 – 617; NEPA v. Arobieke (2006) 7 NWLR (Pt. 979) 245 at 272; Alibi v. Doherty (2005) 18 NWLR (Pt. 957) 411 at 432.” Per PETER-ODILI, J.S.C.

The parties are agreed that the Appellants’ claim to title was founded on traditional history. It is settled that in doing that, the Claimant or a party

who relies on traditional history as his root of title to land must lead evidence in proof of same. The law is now trite that, where a person relies on traditional history as his root of title to land, the onus is on him to plead the root of title and the names and history of his ancestors. He should lead evidence to show same without leaving any yawning gap. A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a Claimant. See MOGAJI V. CADBURY (1986) 2 NWLR (PT. 47) 393; ANYANWU V. MBARA (1992) 5 NWLR (PT. 242) 386; AKINLOYE V. EYIYOLA (1968) 2 NMLR 92; OWOADE V. OMITOLA (1988) 2 NWLR (PT. 77) 413 AND ODI V. IYALA (2004) 4 SCNJ 35 AT 54.

The Respondents contended that the Appellants failed to prove their claim as their witnesses, PW1, PW5, and PW7 did not help because their evidence supports the case of the Respondents and gave contradictory evidence thus, the trial Court was right to dismiss the claim. The Appellate lower Court merely adopted the findings of the trial Upper Area Court. I have gone through the judgment of the trial Court and I find an evaluation carried out by the Appellate trial Court without

the resolution of certain contradictions on both sides. These were highlighted in the Appellants’ Brief. It is trite that contradiction has effect on the case of a party. It is a word that comes from two Latin words – contra, which means opposite, and dicere, which means to say. So, in ordinary parlance, to contradict is to speak or affirm the contrary. The apex Court defined it fully in the case of WACHUKWU V OWUNWANNE & ANOR (2011) LPELR-3466(SC) thus:
“This Court, in the case of Ogidi v. State (2003) 9 NWLR (Pt.824) 1 at pp. 23 – 24 H – A, defined the word contradiction in relation to evidence placed before a Court as follows: “The word ‘Contradiction’ is a simple English word. It derives from two Latin words: ‘Contra’ and ‘Deco- ere-dixi-dictum,’ meaning, ‘to say the opposite’, hence, ‘contradictum’ A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or, contains a little more

than what another piece of evidence says or contains; some minor differences in detail.” Per MUHAMMAD, J.S.C.
It is trite that only material contradictions affect the case of a party, however slight discrepancies are normal in human conduct. There was a discrepancy in the genealogy of the Appellants where one left out one of the forebears each but who cleared the forest is not in doubt while the Respondents traced their root with gaps also and ended with the 1st Respondent who did not testify nor was at the locus to show his land so other family members testified. Therefore, on who founded the land in accordance with traditional history the case for the Respondents had more yawning gaps as compared to the Appellants. DW5 gave an incomplete version of who founded the land when he said it was Kere, then it devolved to Wunji and Elang who is the DW5, Bera was completely omitted as founder, while DW4 said it was Bera that deforested the land while Agi Salau- DW3 who is over 100 years old did not know how the land was deforested. He gave the line as Bira, Kere, then Wunji but he does not know from whom Bira got the land which presupposes that Bira did not

deforest the land. DW4 in one breath said the land belongs to John Elang and went on to say all the Respondents own the land.

This contrast to the traditional history of the Appellants which is streamlined on successive ownership or devolution. The evidence of the Appellants is that Ujah deforested the land until it got to Galadima, the only omission is, when PW5 who mentioned Igbe but omitted Ado while PW7 mentioned Ado but omitted Igbe, I consider that a discrepancy which can be explained from the functioning of human memory works, we don’t all recollect events or names in the same way. It is very clear that there is no doubt as who cleared the land.

The other fact that destroyed the case of the Respondents is the Appellants’ possession and acts of ownership over a long period of time. PW1 & 2 have been on the land for 35 years and showed the trial Court their houses on the land in dispute, PW5 has been on the land for 20 years. Notable is the fact that it had been the Appellants, challenging the intrusion onto the land by the Respondents. The Appellants also gave pieces of land to several people who have built house and cultivated the land

without any protest from the Respondents. The issue of paying tribute by one of those put on the land by the Appellants only started after the customary arbitration and was not the practice before then. The only evidence of Respondents’ presence on the land is when they attempted trespass in 1998 and withdrew only to surface in 2010 and it was rebuffed and that led to this appeal. For all the years in between, the Respondents did not take any step to recover the land. On the visit to locus in quo, houses, graves were shown to the Court and economic trees planted and harvested by the Appellants and their witnesses. The boundary neighbors for the Appellant testified and showed their respective area while only one boundary neighbor (DW4) testified for the Respondents. DW1 who told the trial Court that he shares boundary was not at the visit to show his land. PW3 and PW4 also asserted that the Appellants had been on the land, in actual possession without any challenge from the Respondents.

If the trial Court finds that traditional history was not established as required by law, acts of possession over a long period of time is established and the law requires

the Claimant to prove just one of the methods as listed in the case IDUNDUN V OKUMAGBA (1976) LPELR-1431(SC).
It is settled that where there is an inconclusive traditional history as established by the parties, the Court can have recourse to act of ownership over a period of time, see EIGBEJALE V OKE & ORS (1996) LPELR-1057 which held as follows:
“Accordingly, where a trial Court has properly evaluated and accepted the traditional evidence of a plaintiff in a declaration of title to land action, this will be enough to sustain the claim. It will not be necessary in such circumstance for the Court to look further for any evidence of acts of ownership or possession, numerous and positive enough to lead to the inference that the plaintiff is the exclusive owner of such land before the declaration is granted. Acts of ownership and possession by the plaintiff in respect of such a claim founded on traditional history only become material where the traditional evidence proffered by the parties is inconclusive or conflicting and it therefore becomes necessary to test such traditional histories adduced by reference to recent facts or acts of ownership and

possession established by evidence. See Kojo II v. Bonsie (1957) 1 WLR 1223 at 1227; Adisa v. Saibu (1977) 2 S.C 98 at 110; Aikhionbare v. Omoregie (1976) 12 S.C. 11 at 27; Idundun v. Daniel Okumagba, supra etc.” Per IGUH, J.S.C.

The type of acts of ownership over a long period can establish title when it has occurred over a long period of time, as it was held in ONWUGBUFOR & ORS V OKOYE (1996) LPELR-2716(SC) thusly:
“Now, the acts of ownership and possession that will support a claim for title to land must extend over a sufficient length of time and must be numerous and positive enough to warrant the inference that the plaintiff is the true owner. – see Ekpo v. Ita (1932) 11 NLR 68, 69. However, a party relying on acts of possession and ownership as evidence of title to land must show that such acts, not only extend over a sufficient length of time, but that they are numerous and positive enough to warrant the inference that the claimant is the exclusive owner of the land. See Ekpo v. Ita, (supra), Anyanwu O. v. Mbara (1992) 5 NWLR (Pt.242) 386 at 401, Piaro v. Tenalo (1976) 12 SC 31 at 41; D.O. Idundun & Ors. v. Daniel Okumagba, (supra).”

Furthermore, a party relying on acts of possession and ownership as evidence of title to land must show that such acts, not only extend over a sufficient length of time, but that they are numerous and positive enough to warrant the inference that the Claimant is the exclusive owner of the land. See EKPO V. ITA (SUPRA), ANYANWU O. V. MBARA (1992) 5 NWLR (PT. 242) 386 at 401; PIARO V. TENALO (1976) 12 SC 31; D.O. IDUNDUN & ORS V. DANIEL OKUMAGBA (SUPRA) and BASSIL & ORS V FAJEBE & ANOR (2001) LPELR- 757(SC) on possession held thus:
“Proof of ownership is prima facie proof of possession, the presumption being that the person having title to land is in possession. See Jones v. Chapman & Ors. (1847) 2 Ex.803.”

Flowing from the authorities referred to above, in view of the inconclusive evidence on traditional history of both sides, the Court can rightly look at acts of ownership over a sufficient period of time and possession being a prima facie evidence of ownership, the case of the Appellant weighs heavier on the scale as compared to the case of the Respondents and I find for the Appellant because, the evaluation done by the

trial Area Court was flawed and it occasioned a miscarriage of justice. The trial Judge who had the opportunity of seeing the witnesses and also visiting the locus in quo did not apply the advantage he had in that regard appropriately. I resolve issue three in favour of the Appellants.

Issue four, as donated by the Appellants, questions the findings made by the trial Court that the claim was caught by the principle of Res Judicata by virtue of Exhibit B1. Exhibit B1 is a certified copy of the record of proceedings of customary arbitration before the Odyong Yankpa’s palace tendered by DW 5 and in which judgment was entered for the Respondents. During the trial before the Area Court, the following documents were tendered namely: Exhibit A is a certified true copy of the proceedings before the Odyong Yankpa’s palace tendered by the current Odyong Yankpa who testified. Exhibit B1 is another copy of the document though having a different verdict, Exhibit A is in favour of Appellants while B1 is in favour of the Respondents. Exhibit B11 is the record of proceedings transferring the case from the Area Court, Gitata to Upper Area Court Keffi. The trial

Area Court discountenanced Exhibit A and relied on B1 to find for the Respondents on the ground that it was a valid judgment binding on the parties thus, creating the estoppels of Res Judicata by customary arbitration. The doctrine of Res judicata was restated in the case of COKER V SANYAOLU (1976) LPELR-877(SC) in the following way:
“On this aspect of the doctrine of res judicata, Lush, J. observed: “The words ‘res judicata’ explain themselves. If the res – the thing actually and directly in dispute – has been already adjudicated upon, of course, by a competent Court, it cannot be litigated again … As is said in the notes to the Duchess of Kingston’s case (2 Smith’s Leading Cases 12th edition 754 at 767), if the truth has been ascertained, the party against whom it has been ascertained is taken as admitting it. This is what the learned author said: ‘an estoppel, therefore, is an admission; or something which the law treat as equivalent to an admission of an extremely high and conclusive nature – so high and so conclusive, that the party whom it affects is not permitted to aver against it or offer evidence to controvert it …’ The litigant must admit

that which has been judicially declared to be the truth with regard to the dispute that he raised. . (brackets and underlining supplied). (See Ord. v. Ord (1923) 2 K.B 432 at 439-340).” Per IDIGBE, J.S.C.

There are conditions that must exists to warrant the application of the doctrine and the ingredients for a valid and binding customary arbitration were named in ALGAITA V AMOS(2018) LPELR-44398(CA)
“Going further, there is no law that says that a trial Court cannot resolve a question of res judicata by way of customary arbitration without taking oral evidence. The Courts have over the years laid down some ingredients or conditions that a decision of a customary arbitration Tribunal or body must satisfy before it can be enforced as a valid and binding decision. These are: i. There must be a voluntary submission of the matter in dispute to an arbitration of one or more persons; ii. It must be agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted and binding; iii. The said arbitration must be in accordance with the custom of the parties or of their trade or business; iv. The arbitrators must

reach a decision and publish their award; and v. The decision or award must be accepted by the parties at the time it was made. See Ohiaeri Vs Akabeze (1992) 2 NWLR (Pt 221) 1, Odonigi Vs Oyeleke (2001) 6 NWLR (Pt 708) 12, Eke Vs Okwaranyia (2001) 12 NWLR (Pt 726) 181 at 208, Egesimba Vs Onuzuruike (2002) 15 NWLR (Pt 791) 466, Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592 and Nwannewuihe Vs Nwannewuihe (2007) 16 NWLR (Pt 1059) 1. Reading through the proceedings of events before the Tangale Traditional Council Settlement Committee on pages 19 to 22 of the records, it is obvious that one M. Amos Malum, the oldest member and apparent head of the family, stated clearly before the Committee that he would not accept any decision that had the effect of dividing the family in the sharing of the farmlands and that each farmland must be shared between the six branches of the family. This shows that it was not accepted by the parties that whatever decision was reached by the Committee will be accepted as binding. Again, the law recognizes that after the delivery of the award or decision of the customary arbitration, the parties were at liberty to reject the decision if

they do not find it agreeable to them – Mbagbu Vs Agochukwu (1973) 3 ECSLR 90, Nwuka Vs Nwaeche (1993) 5 NWLR (Pt 293) 295, Nwosu Vs Nwosu (1996) 2 NWLR (Pt 428) 64, Abasi Vs Onido (1998) 5 NWLR (Pt 548) 89, Odonigi Vs Oyeleke (2001) 6 NWLR (Pt 708) 12, Eke Vs Okwaranyia (2001) 12 NWLR (Pt 726) 181. These decisions predicate their position on the constitutional right of a party to appeal against a decision not favourable to him. The point was made by Ndoma Egba, J.C.A. in Nwuka Vs Nwaeche (1993) 5 NWLR (Pt 293) 295 thus: ‘Although, parties are bound by the decision of customary arbitration or mediation by mere submission to its jurisdiction, but as the right of appeal is enshrined in the Constitution of the Federal Republic of Nigeria, any person or party who is aggrieved by the decision of the arbitration could seek redress and justice to the highest Court of the land. Such a person or party is not expected to submit to a decision that is clearly unjust to him.’ The easiest way to show a rejection of the decision of a customary arbitration is by a party commencing an action in Court to contest the same issues dealt with by the customary arbitration –

Ehoche Vs Ijegwa (2003) 7 NWLR (Pt 818) 139. The Respondent commenced an action in the trial Court barely six months after the decision of the customary arbitration. This is sufficient showing of rejection of the decision of the customary arbitration. The findings of the lower Court that the decision of the Tangale Traditional Council Settlement Committee did not constitute res judicata was very sound on the law.” Per ABIRU, J.C.A.
Also, see the apex Court’s decision in ODONIGI V OYELEKE (2001) LPELR-2230 (SC) which considered the conditions for the decision of a customary arbitration to apply as estoppel per rem judicatam; ingredients for a valid and binding customary arbitration which held thus:
“The question of customary arbitration and the conditions attached thereto has been considered by our Courts in many cases, some of which are:- Assampong v. Amuaku & Ors (1932) 1 WACA 193, Mbagbu v. Agochukwu (1973) 3 ECSLR (Pt. 1) 90; Inyang v. Essien (1957) 2 FSC 39; (1957) SCNLR 112; Idika v. Erisi (1988) 2 NWLR (Pt.78) 563 at 573; Kwasi v. Larbi (1952) 13 WACA 17. And from the principles enunciated in these decisions, it can reasonably be

deduced that the Nigeria law recognizes arbitration at customary law provided the following conditions are satisfied:- (1) The parties voluntarily submit their disputes to a non-judicial body, to wit their elders or chiefs as the case may be for determination; (2) The indication of the willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where not satisfied, and (3) Neither of the parties has resiled from the decision so pronounced. It would appear therefore that, once these conditions are satisfied, in a customary arbitration, the arbitration would be liberally treated as a judicial proceeding and could be taken to operate as or create estoppel per rem judicatam.” Per KALGO, J.S.C.
It is trite that all the conditions must exist for the principle to apply. Reviewing the facts in this appeal, can it be said that all the conditions exist so as to make Exhibit B1 binding and qualify as Res judicata? The act of the Appellant’s father in filing a claim before the Area Court soon after the decision by the Odyong Yankpa, is clear indication that the decision handed down by the Odyong Yankpa was not

accepted and that the Appellants’ father resiled from the decision by the singular act of filing a claim. It means that one of the ingredients is missing and since not all the ingredients are satisfied, the doctrine of Res judicata by virtue of customary arbitration cannot operate and therefore, the trial Upper Area Court erred, and the Court below also erred to uphold the finding that the principle applied in this case. I agree with the Appellants that Exhibit B1 cannot operate as binding on the parties. Furthermore, the Court below failed to appreciate that Exhibit A enjoyed presumption of regularity over the copy presented by the Respondents. The Odyong testified that it was a copy of the record proceedings in the palace. Nothing was presented to dislodge the presumption. The trial Area Court was wrong in jettisoning the Exhibit A, the allegation that the Odjong was interested in the land was not made out since he was not confronted with the allegation. The trial Area Court relied on the hearsay to reject a true copy of the Palace proceedings on Customary Arbitration. Issue four is resolved in favour of the Appellants. Having resolved all the issues in

favour of the Appellants, the appeal succeeds and the judgment of the Appellate lower Court and the trial Area Court are hereby set aside and I enter judgment in favour of the Appellants as follows:
i. A DECLARATION is hereby made in favour of the Appellants that that farmland at KaKauya Village belongs to the 1st and 2nd Appellants.
ii. As a consequential order, I grant an INJUNCTION against the Respondents and all their agents, privies from interfering with the possession and title of the Appellants over the said land.
I make no order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my Noble brother, HON. JUSTICE Y. B. NIMPAR, J.C.A.; and I am in total agreement with his reasoning and conclusion that the Appeal is meritorious and same is hereby allowed. The judgment of both the Trial Upper Area Court and that of the Nasarawa State High Court of Justice, sitting in its Appellate jurisdiction are hereby set aside.

I abide by the consequential order as well as the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now, the lead

judgment just delivered by my learned brother NIMPAR, J.C.A., and I agree with the reasoning and conclusions reached therein.

The appeal is imbued with merit and is accordingly allowed by me.

The judgment of the High Court of Nasarawa State, sitting in its appellate jurisdiction, per Hon. Justice Aisha Bashir Aliyu and Hon. Justice Danjuma A. Oyegbenum, and delivered 20th October, 2016 is also set aside by me.
I make no order as to cost.

Appearances:

ISAAC PAUL For Appellant(s)

O. EKPO For Respondent(s)

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