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BAYO v. TSOKWA (2020)

BAYO v. TSOKWA

(2020)LCN/14340(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, June 11, 2020

CA/YL/125/18

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

WA’AJIM BAYO APPELANT(S)

And

ZAKARIAH TSOKWA RESPONDENT(S)

RATIO

WHETHER OR NOT THE BURDEN OF PROOF IS ON THE CLAIMANT TO PROVE HIS ENTITLEMENT TO THE DECLARATION IN AN ACTION FOR DECLARATION OF TITLE

As rightly submitted by the learned counsel to the Appellant, in an action for declaration of title, the burden is on the claimant to prove his entitlement to the declaration. He succeeds on the strength of his case and not on the weakness of the defence, whose only duty is to defend. See, MOGAJI VS. CADBURY NIG. LTD. (1985) 2 NWLR, 393 at 429, D – E; KODILINYE VS. ODU (1936) 2 WACA 336 at 337; ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (424) 252 and SHITTU VS. FASHAWE (2005) 14 NWLR (946) 671. The exception is where the defendant’s case supports the claimant’s case and contains evidence upon which the claimant is entitled to rely on. See, MOGAJI VS. CADBURY (supra) at 429 – 430, H – A. PER UWA, J.C.A.

WAYS F ESTABLISHING TITLE OF OWNERSHIP TO LAND

It is settled law that there are five ways by which a claimant may prove title to land. The Supreme Court in the case of IDUDUN VS. OKUMAGBA (1976) 9 – 10 SC 227 listed these as follows:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.

(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
​The claimant is not required to prove all the five ways, if he establishes any one of them, he would be entitled to the declaration sought. PER UWA, J.C.A.

WHETHER OR NOT AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT

Where the trial Court has properly evaluated the evidence before it and arrived at a decision that is not perverse, an appellate Court would be reluctant to interfere with the decision. See,BUNGE VS. GOV. RIVERS STATE (2006) 12 NWLR (1995) 573 at 629, E – H and SALEH VS. B.O.N. LTD (2006) 6 NWLR (976) 316 at 329 – 330, H – C. PER UWA, J.C.A.

FACTORS TO PROVE WHERE A PLAINTIFF RELIES ON FIRST SETTLEMENT

Where a plaintiff relies on first settlement, the following must be proved by the pleadings and evidence of the plaintiff:
1. Who founded the land in dispute?
2. How was the land founded?
3. What are the particulars of the intervening owners through whom the plaintiff claims?
See, ALLI VS. ALESINLOYE (2000) 4 SCNJ 264 at 284 – 285; MOGAJI VS. CADBURY NIG. LTD. (1985) 2 NWLR 393 at 429, D – E, OHIAERI VS. AKABEZE (1992) 2 NWLR (221) 1 and ALIKOR VS. OGWO (2010) 5 NWLR (1187) 281 at 309, D – F. PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Respondent as plaintiff before the High Court of Taraba State (hereafter referred to as the trial Court) sought the following reliefs against the Appellant:
A. “A declaration that the plaintiff is the rightful owner of the parcel of land situate at Taenko North east of Lissam town whose boundaries are:-
East – bounded with the land of: Andesiate Yakubu.
West – bounded with the land of one Yakubu Ali.
South – is bounded by the land of one Ayibsa Rikwub.
North – is bounded by the land of one Usman Mbaefean.
B. Perpetual injunction against the defendant and his privies from further trespass over the said land.
C. N500,000.00 general damage fro trespass.
D. Court of filling (sic) and prosecuting of this case.”

On the 6th day of November, 2017, the trial Court entered judgment in favour of the Respondent in terms of the reliefs sought. Dissatisfied with the decision, the appellant appealed to this Court.

​The background facts are that the Respondent amongst other reliefs sought at the trial Court, claimed for declaration of title and

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injunction as well as damages. The respondent alleged that his grandfather Anderibon and Tungwari deforested the land, shared it between the two of them, exercised all acts of ownership and possession on their respective portions without any challenge or hindrance from anybody as pleaded in paragraph 4 of the Respondent’s amended statement of claim.

The Appellant also relied on traditional history in his defence and pleaded that the land in dispute was founded by his grandfather Atirikwen, who deforested the land as pleaded in paragraphs 3 and 5 of his statement of defence.

The Respondent called PW1, PW2 and PW3 who testified viva voce under the old Rules of the trial Court while the PW4 and PW5 testified under the new Rules of the trial Court where their respective statements on oath were front loaded and adopted in support of the amended statement of claim.

​The Appellant on his part called two witnesses, DW1, DW2 and testified as the DW3. It was made out that the evidence of the PW1 – PW3 described the land in dispute contrary to the pleadings of the Respondent. It was alleged that the Respondent’s witnesses gave a different

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traditional history as to who founded the land, how it was founded and particulars of the intervening owners through whom the Respondent claimed title.

The appellant formulated the following two issues for the determination of the appeal thus:
1. “Whether the learned trial judge was right in granting the Respondent’s declaration of title in spite of the contradictory evidence offered by the Respondent (sic) witnesses to establish his pleaded root of title. (Distilled from ground 1)
2. Whether in all the circumstances of this case and having regard to the evidence on record the trial judge was right in finding for the Respondent on alleged acts of ownership and long possession in recent time when the evidence of traditional history did not satisfactorily establish his pleaded root of title.” (Distilled from grounds 2 & 3)

The Respondent on his part formulated a sole issue for the determination of the appeal thus:
“Whether the Respondent has proved his case before the trial Court to be entitled to a declaration of title to the land in dispute. (Distilled from grounds 1 and 2 of the grounds of

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appeal).”

In arguing the appeal, the learned counsel to the appellant J.P. Barnabas Esq., holding brief for M.G. Josiah Esq. adopted and relied on his brief of argument filed on 24/7/19, as his argument in this appeal in urging us to allow same, set aside the decision of the trial Court and grant the reliefs of the appellant. In arguing his first issue, it was submitted that a party who seeks a declaratory relief as in the present case must succeed on the strength of his case and not on the weakness of the defence. It was submitted that the Respondent at the trial Court relied on traditional history and acts of long possession to prove his title to the land in dispute. It was argued that first settlement is enough to confer title to land. See, ADETUTU ADESANYA VS. ALHAJI S.D. ADERONMU & ORS (2009) 99 LRCN 2149 at 2169, BULUS SANYA & 1 OR VS. DENNIS SAUMAN & ORS (2012) ALL FWLR (PT. 618) 917. It was submitted that traditional evidence that will suffice were highlighted in the following cases: CORNELIUS ANJORIN LEBILE VS. REGISTERED TRUSTEES OF CHERUBIM and SERAPHIM CHURCH OF NIGERIA (2003) 1 SCNJ 403 at PAGE 474 and

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ONUOHA NWOKOROBIA VS. DESMOND UCHECHI NWOGU & ORS (2009) ALL FWLR (PT. 476) 1868 at 1885, PARAGRAPHS G – H.

Further, that a plaintiff relying on evidence of traditional history must prove his root of title by tracing how his ancestors came to the land and eventually passed it to him. It was submitted that the Respondent pleaded his root of title in paragraphs 4 and 5 of his Amended Statement of claim while the evidence in support was not cogent enough to entitle the Respondent to the reliefs sought. See, EYO VS. ONUOHA (2011) VOL. 195 LCRN, PAGE 38 at 59. It was submitted that the PW1 – PW3 did not mention the name of the founders of the land as pleaded by the respondent. While the PW4 did not know who founded the land in dispute and facts in his evidence were not pleaded. The evidence of the PW5 (Respondent) was said to be inconsistent as to whether it was his grandfather or father that first deforested the land with Tungwari (grandfather of Ayibsa Rukwub). It was the contention of the learned counsel to the appellant that the contradictions and inconsistencies in the evidence of the Respondent as to who founded the land, Tsokwa his father, Tungwari his

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grandfather or the great grandfather of the PW2 makes it difficult to determine who founded the land. Also, that the particulars of the intervening owners pleaded by the Respondent are contrary to the evidence adduced. We were urged to dismiss the claim with the conflicting root of title. See, MOGAJI & ORS VS. CADBURY & ORS (1985) (PT. 11) VOL. 16 NSCC 959 at 991, ONUOHA NWOKOROBIA VS. DESMOND UCHECHI NWOGU (2009) (supra) at PAGES 1888 – 1889, MICHAEL EYO VS. EMEKA COLLINS ONUOHA & 1 OR (2011) (supra) at 84 and NEWMAN OLODO & ORS VS. CHIEF BURTOUN M. JOSIAH & ORS (2010) 12 NMLR (PT. 11) 510, CORNELIUS ANJORIN LEBILE VS. THE REGISTERED TRUSTEES OF CHERUBIM and SERAPHIM CHURCH OF NIGERIA (2003) (supra) at P. 463. It was argued that the Respondent’s witnesses gave contradictory evidence of traditional evidence pleaded by the Respondent as his root of title. Further, that the respondent having failed to prove his root of title cannot rightly rely on acts of long possession. See, JOHN OWHONDA VS. ALPHONSUS CHUKWUEMEKA EKPECHI (2003) 9 SCNJ 1.

​It was argued that the burden is on the Respondent who sought a declaration and

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injunctive orders to describe the land over which he seeks the reliefs. It was argued that the Respondent’s witnesses gave contradictory and conflicting description of the land in dispute. See, IBHAFIDON VS. IGBINOSUN (2001) 6 NSCQR 315 at 323 – 324. It was concluded that the trial Court ought not to have utilized the evidence of the PW4 which was not pleaded to confirm the identity of the land in dispute, resulting in a perverse decision which should be set aside.

​In response, the learned counsel to the Respondent M.P. Atsev Esq., holding brief for R.K. Iribom Esq. relied on the Respondent’s brief of argument filed on 19/9/19 as his argument in this appeal in urging us to dismiss the appeal and affirm the judgment of the trial Court. In arguing his sole issue, it was submitted that the Respondent proved his case at the trial Court to have been entitled to the reliefs sought. It was submitted that in a claim for declaration of title to the land, a plaintiff/claimant must prove one of the five ways of establishing title to land as enunciated by the Supreme Court in IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227. It was submitted that a

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party is not under any obligation to rely only on one of the five ways of proving title but, can rely on a combination of the five ways, once one survives, the Court can proceed to declare title of the land in dispute in favour of the claimant. It was submitted that the Respondent in paragraphs 4 and 5 of his Amended Statement of claim claimed to have inherited the land in dispute from his late father Tsokwa who inherited the land from his father Anderibom (the Respondent’s grandfather) the original founder of the land, reference was made to the Respondent’s statement on oath at pages 38 – 40 of the printed records of appeal, also the evidence of the PW1 – PW3, at Pages 19 – 20, 22 – 23 and 24 – 25 of the printed records of appeal. It was argued that the Appellant faulted the respondent’s witnesses not specifically mentioning his grandfather by name, it was argued not to be necessary since he as plaintiff pleaded his name and in his evidence on oath, paragraph 4 of the Amended Statement of claim at pages 32 of the printed records, also page 38, paragraphs 5 and 6 of the Respondent’s statement on oath were

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highlighted. Without conceding that, there were discrepancies in the evidence of the Respondent’s witnesses, we were urged to treat same as idiosyncrasies of witnesses giving evidence in Court. See, OCHEMAJE VS. STATE (2008) 36 (PT. 11) NSCQR P. 831 – 832. It was submitted that there were no contradictions in the evidence of the Respondent’s witnesses. It was argued without conceding, that if the traditional history of the Respondent is inconclusive or in conflict, the Respondent as plaintiff would succeed if he is able to prove acts of ownership extending over a sufficient length of time numerous and positive enough to infer that the plaintiff is the exclusive owner. See, ARUM VS. NWOBODO (2013) ALL FWLR (PT. 688) P. 870. It was argued that the Appellant pleaded that the land was deforested by his grandfather Atirikwen, paragraph 3 of the Amended Statement of Defence, page 54 of the printed records also paragraph 10 of the statement on oath of Pastor Israel, page 56 of the record and paragraphs 5 and 6 of the statement on oath, pages 57 – 59 of the records. While the DW1 (Pastor Israel) testified that it was the Appellant’s

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father Bayo that deforested the land. It was the contention of the learned counsel that the traditional evidence of the Appellant was inconclusive as to who founded the land in dispute. Further, that where traditional evidence is in conflict or inconclusive, the Court should examine the acts of ownership or possession by either party in recent times in relation to the land in dispute. See, ELEGUSHI VS. OSENI (2005) 23 NSCQR P. 193 at 195. It was submitted that the trial Court was right when it considered the acts of ownership extending over a long period of time as pleaded by the Respondent at paragraphs 4 – 7 of the Amended Statement of claim, pages 32 – 33 of the printed records of appeal and the witness’ statement on oath of the Respondent at paragraphs 4 – 12; pages 39 – 40 of the records. Also, the recent acts as given by the PW5 (Askebnde Nafinji) at pages 36 – 37 of the printed records of appeal and the reply to the statement of defence. The PW5 was said to have confirmed the pleaded facts and evidence adduced by the Respondent as to the Respondent’s ownership of the land in dispute. It was argued that the Court

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can grant a relief of declaration of title based on acts of ownership. See, ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (PT. 424) P. 258. Further, that proof of ownership and possession of land in law includes selling, leasing, renting or farming on the land. See, EWO VS. ANI (2004) 17 NSCQR P. 38.

Also, that where the land in dispute is known to both parties, no issue need be joined as to the identity of the land in dispute. See,ODOFIN & ANOR VS. ONI (2001) NSCQR P. 69 and EZEUDU & 2 ORS VS. OBIAGWU (1986) 2 NWLR (PT. 21) P. 208 at 209. It was submitted that both parties admitted knowing the land in dispute.

It was concluded on this issue that a reply to the statement of defence forms part of the pleadings and any evidence given in respect of same is as good as evidence given in respect of the reply to the statement of dedence, at page 14 of the printed records of appeal, paragraph 3. It was argued that the evidence of the PW4 was not contradicted and it was based on pleaded facts.

The appellant’s two issues for the determination of the appeal are covered by the Respondent’s sole issue all of which I would re-couch thus:

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Did the Respondent prove his case before the trial Court to have been entitled to a declaration of title to the land in dispute?

As rightly submitted by the learned counsel to the Appellant, in an action for declaration of title, the burden is on the claimant to prove his entitlement to the declaration. He succeeds on the strength of his case and not on the weakness of the defence, whose only duty is to defend. See, MOGAJI VS. CADBURY NIG. LTD. (1985) 2 NWLR, 393 at 429, D – E; KODILINYE VS. ODU (1936) 2 WACA 336 at 337; ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (424) 252 and SHITTU VS. FASHAWE (2005) 14 NWLR (946) 671. The exception is where the defendant’s case supports the claimant’s case and contains evidence upon which the claimant is entitled to rely on. See, MOGAJI VS. CADBURY (supra) at 429 – 430, H – A.

It is settled law that there are five ways by which a claimant may prove title to land. The Supreme Court in the case of IDUDUN VS. OKUMAGBA (1976) 9 – 10 SC 227 listed these as follows:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.

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(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
​The claimant is not required to prove all the five ways, if he establishes any one of them, he would be entitled to the declaration sought. The Respondent (PW5) relied on traditional history from his pleadings and evidence adduced in support that is, that his grandfather Anderibom was the original founder of the land which he deforested, later inherited by the Respondent’s father Tsokwa from whom the Respondent inherited the land from, pleaded in paragraphs 4 and 5 of the Respondent’s Amended Statement on claim, pages 32 – 33 of the printed records of Appeal. The Respondent gave evidence in support of his pleadings at paragraphs 4 – 8 of his witness’ statement on oath. I will hereunder reproduce paragraphs 4 and 5 of the Respondent’s pleadings

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thus:
4. “The plaintiff avers further that the said parcel of land forms part of the whole land originally deforested by the duo – Anderibom and Tunwari (the plaintiff’s grandfather and the grandfather of Ayibsa Rikwub respectively) and after the deforestation they divided the land between themselves a long time ago and they exercised all acts of ownership and possession over their respective portions without any challenge or hindrance from anybody.
5. The plaintiff avers that after the death of the said Anderibom his son Tsokwa took over the possession and exercised all act of ownership and possession over that after death of Tsokwa the plaintiff being the last born took over possession of the land, cultivated the land and planted economic trees both at the boundary and inside the land without any challenge.”

The Respondent’s evidence in support of his pleadings is as contained in paragraphs 4 – 8 of his statement on oath at pages 38 – 39 of the printed records of appeal thus:
4. I know as a fact that the said land forms part of the original land deforested by the duo – Anderibom and Tungwari (my

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grandfather and the grandfather of Ayibsa Rikwub respectively) who a long time ago after the deforestation they shared the said land to themselves; my grandfather took the Northern side while Tunwari took the Southern side both exercised all acts of ownership and possession over their said portions without any challenge or hindrance from anybody.
5. I know as a fact that in Kuteb land, particularly in respect to discussion over original settlers of land, the word “father” means and includes any male parent on the paternal side.
6. I know as a fact that reference to father as to who deforested this land in dispute is referring to Anderibom my grandfather.
7. I know as a fact that after the dead (sic) of Anderibom his son Tsokwa took over the land and exercised all act of ownership and possession over the land without any hindrance or challenges from anybody.
8. I know as a fact that after the death of Tsokwa I being the last born to Tsokwa took over possession of the said land, cultivated the land and planted economic trees both at the boundary and inside the land without any challenges.”

​The Respondent under cross

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examination as the PW5 at page 124 of the printed records of appeal testified thus:
“It was my grandfather who deforested the land. I do not know when the land in dispute was deforested.
Tunwari and my father were friends. They jointly deforested the land and share (sic) the deforested land among themselves. It is not true that the defendant is presently farming on the land. My father (sic) name is Tsokwa, my grandfather (sic) name is Anderibom. My grandfather and my father are one and the same person. The land in dispute share boundary (sic) at the West with Yakubu Ali and not Usman Mbafen. I know Ayibsa. Ayibsa does not share boundary with the land in dispute at West. He share (sic) boundary with Pastor Israel Ajiya. I am on the land that is the subject matter of this case share (sic) boundary with the land in dispute has (sic). I inherited the land in dispute from my grandfather.”

The PW1 (Andesati Yakubu) a boundary neighbour on his part at pages 19 – 20 of the printed records of appeal testified as follows:
“The land in dispute belongs to the plaintiff. My grandfather and the grandfather of the plaintiff shares

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boundary by the land in dispute. My grandfather is Andenyang – jwen. My grandfather share boundary with the land in dispute by the eastern part. At the Western end of the land in dispute is the land of one Usman Mbarfan, while the Southern end is bounded by the land of one Ayibsa Rakub.”

The PW2 (Usman Ambafan) a boundary neighbour on his part at page 22 of the records testified thus:
“The land in dispute belongs to the plaintiff. The land belonged to our great grandfather and then dissolved (sic) to our father. We were born in the land. The land in dispute is near Mountain. It is road that separates the land in dispute from my own land. My land is in the North while the land in dispute is in the South. At the Eastern end of the in dispute (sic) is the land of Andesati Yakubu (PW1). At the West is the land of Yakubu Ali while the Southern end is bounded by the land of Ayibsa Rukub.”

Similarly, the PW3 (Ayibsa Rukub) also a boundary neighbour at pages 24 – 25 of the printed records testified thus:
“I know the piece of land that is subject of the suit. The land is situated at a village called Temko. The

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village is under Ussa Local Government. To the best of my knowledge the land in dispute belongs to the plaintiff. I know those who shares boundary with the land in dispute. The Eastern end of the land in dispute share boundary with one Andesati Yakubu. The Western end it share boundary with the land of Yakubu Ali. The Northern end of the land share boundary with Usman Mbarfean. The Southern end share boundary with the land of Ayibsa Rukwub that is myself. I was born on the land that share boundary with the land in dispute. I inherited the land from my grandfather the name of my grandfather is Tunwari.”

The PW4 (Askebnde Nafinji) a labourer who used to work on the land in dispute for the Respondent testified in his statement on oath at pages 36 – 37 of the records thus:
2. “I know as a fact that the plaintiff used to take me for labourer work that is, I used to go and farm on the disputed land and also to take care of the economic trees there for nearly twenty – five years now without any challenges or hindrance from anybody.
4. I know as a fact that some few years back when the plaintiff asked me to go and work for him on

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the disputed land as usual, when I went there, I saw the defendant working there I confronted him but he told me that it was his father that asked him to work there, thereafter I met with the plaintiff, two of us went and met the father to the defendant and asked him why he asked his son to work on the land in dispute but the father to the defendant denied having sent the defendant to the land in dispute and said the land in dispute is for the plaintiff so the defendant should keep off from the land.”

The above evidence was not challenged or refuted by the Appellant under cross examination.

​It was alleged by the Appellant that the description of the land in dispute given by these witnesses is different from that of the Respondent. This is erroneous since the Respondent’s pleadings and evidence before the trial Court are similar to those of the PW1 – PW3 as to the founder of the land in dispute being the grandfather of the Appellant, the traditional history was consistent with the history as given by the Respondent, the description was not inconsistent with that of the Respondent. Where a plaintiff relies on first settlement, the

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following must be proved by the pleadings and evidence of the plaintiff:
1. Who founded the land in dispute?
2. How was the land founded?
3. What are the particulars of the intervening owners through whom the plaintiff claims?
See, ALLI VS. ALESINLOYE (2000) 4 SCNJ 264 at 284 – 285; MOGAJI VS. CADBURY NIG. LTD. (1985) 2 NWLR 393 at 429, D – E, OHIAERI VS. AKABEZE (1992) 2 NWLR (221) 1 and ALIKOR VS. OGWO (2010) 5 NWLR (1187) 281 at 309, D – F.
The Respondent’s claim is based on traditional history of first settlement by his grandfather Anderibom who passed the land on to the Respondent’s father Tsokwa, from whom the Respondent inherited from on his demise. The Respondent from his pleadings and evidence led in support thereof claimed for declaration based on traditional history of first settlement on the land by his grandfather. The acts of ownership and long possession are incidental to the claim of original ownership through traditional history.

​The learned counsel to the Appellant had argued that there were discrepancies in the evidence of the PW1 – PW3 in that they did not mention the name

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of the Respondent’s father who founded the land in dispute. The important thing is the fact that they knew who deforested the land in dispute to be the Respondent’s grandfather, whose name was pleaded and mentioned by the Respondent to be Anderibom. No other person has claimed to be the Respondent’s grandfather and there is no doubt or contrary evidence that Anderibom is not the Respondent’s grandfather. The fact that the Respondent as PW5 mentioned his grandfather’s name and the PW1 – PW3 did not, is immaterial. It cannot be rightly termed a contradiction that would touch on the root of the matter. The important thing is that the witnesses are consistent as to who first settled on the land in dispute to be the Respondent’s grandfather. At page 177 of the printed records of appeal the trial Court held thus:
“The evidence of PW4 was corresponding by (sic) the plaintiff when testifying as PW5. He told the Court that “when the defendant challenged my title over the said land. I in company of Asinde Nafinji went to the father to the defendant and his father denied even laying claim to the said land or

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having any relationship with the said land.” Even PW5 was never cross – examined on this aspect. I therefore assume that the defendant admitted that fact.”

I agree with the above finding, the appellant did not controvert the above piece of evidence as recapped by the trial Court. As found by the learned trial judge, the Respondent gave the description of the land in dispute in paragraphs 3 and 8 of his Amended Statement of claim, he gave the boundaries of the land in dispute, also in paragraph 3 of his statement on oath. The Respondent called his boundary neighbours as witnesses to confirm his position as the owner of the land in dispute. At page 178 of the printed records, the learned trial judge found that the Appellant in his statement of defence denied the location of the land in dispute not being at Taenko North East of Lissam as pleaded by the Respondent, he also denied those listed by the Respondent as boundary neighbours. The learned trial judge therefore held thus:
“The defendant only denied the location of the land as stated by the plaintiff but did not state where the land is located. In denying boundary men

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described by the plaintiff the defendant averred in paragraph 5 of his amended statement of defence that “The said is (sic) bounded as follows:
North – Bako Nwuruyi farmland.
South – Kwe Ajiya farmland.
West – A foot path.
East – Ekauben farmland.”

Thereafter, the trial Court rightly found that the Appellant did not counterclaim. The trial Court also rightly questioned whether the land claimed by the Respondent is the same as that the Appellant made out had been found by his grandfather Atirikwe. The trial Court then held at pages 178 – 179 of the printed records thus:
“As far as I am concern (sic) and for the purpose of this case the land described and being claimed by the plaintiff is what qualified as the land in dispute. If both parties had all agreed with the location and boundary now the best way to resolve the issue would have been a visit to the locus right with (sic) what before me I am left with no option than to hold that the land the defendant is defending is not the same with the one the plaintiff is claiming.”

​I cannot fault the above view of the trial Court. Where the trial Court

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has properly evaluated the evidence before it and arrived at a decision that is not perverse, an appellate Court would be reluctant to interfere with the decision. See,BUNGE VS. GOV. RIVERS STATE (2006) 12 NWLR (1995) 573 at 629, E – H and SALEH VS. B.O.N. LTD (2006) 6 NWLR (976) 316 at 329 – 330, H – C.

​Contrary to the submission of the learned counsel to the Appellant, the Respondent properly described the land in dispute against which he sought a declaration and injunction. The Respondent knew the identity of the land which he claimed, accurately described same as well as his boundary neighbours who also testified as to his ownership of the land in dispute. The Appellant had argued that the PW1 – PW3 gave contradictory and conflicting evidence in respect of the boundary neighbours to the land in dispute. I am of a contrary view in that these witness gave the names of the same boundary neighbours listed by the Respondent but, may have differed in the directions of East, West, North and South which is not unusual because these directions would depend on the approach and or entry point to the land in dispute. The identity of the

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land claimed by the Respondent was not in doubt. At page 179 of the printed records, the learned trial judge concluded thus:
“On the whole, I hold that the plaintiff has by pleading and evidence proved on balance of probability that the land in dispute belongs to him and in (sic) therefore entitled to a declaration of title. The defendant did not adduce evidence in accordance with his pleading that tilted the balance of the scale of justice so as to destroy the case of the plaintiff. I therefore hold that the plaintiff has proved his case as require (sic) by law. I therefore declare title to the land in dispute in favour of the plaintiff.”

I am at one with the above conclusion by the learned trial judge, the Respondent having proved his case as against the Appellant who had no credible or tangible defence, the Respondent was entitled to the declaration sought having proved by traditional history his title to the land in dispute. The sole issue as reformulated is resolved against the Appellant.

​In sum, the appeal fails and it is hereby dismissed. The judgment of the trial Court is hereby affirmed.
I award costs of N100,000.00

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(One Hundred Thousand Naira) against the Appellant.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA, and I agree entirely with him that the judgment of the Court below cannot be faulted.

Having dealt exhaustively with the issue for determination, I adopt the reasoning and conclusion in the lead judgment in dismissing the appeal. I affirm the judgment of the Court below.
I abide by all other orders in the lead judgment, including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

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Appearances:

J.P. Barnabas Esq., holding the brief of M.G. Josiah, Esq. For Appellant(s)

M.P. Atsev, Esq., holding the brief of R.K. Iribom, Esq. For Respondent(s)