BELLO & ANOR v. GARBA & ANOR
(2020)LCN/14887(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, December 18, 2020
CA/YL/150/2018
RATIO
RELIEFS: POSITION OF THE LAW ON GRANT OF DECLARATORY RELIEFS
It is the law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. See Anyanru v. Mandilas Ltd. (2007) 4 SCNJ 288, Chukwuma v. S.P.D.C. (Nig.) Ltd (1993) LPELR-864 at 64 – 65 and Matanmi & Ors v. Dada & Anor (2013) LPELR – 1929. PER ABIRIYI, J.C.A.
EVIDENCE: EFFECT OF FAILURE OF THE ADVERSARY TO CROSS EXAMINE A WITNESS ON A MATTER
Where the adversary fails to cross examine a witness upon a particular matter the implication is that he accepts the truth of that matter as led in evidence. The Court can take the silence of the adversary as acceptance that he does not dispute the fact. See Oforlete v. The State (2000) LPELR – 2270 SC, Isah v. State (2017) LPELR – 43472 SC, Ewugba v. State (2017) LPELR – 43833 SC and Oludamilola v. State (2010) LPELR – 2611 SC. PER ABIRIYI, J.C.A.
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
1. MUHAMMADU BELLO (DALDO) 2. MALLAM BAWA APPELANT(S)
And
1. KABIRU GARBA 2. MUHAMMADU GARBA RESPONDENT(S)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 8th June, 2017 in the High Court of Taraba State holden at Jalingo. In the High Court (the Court below), the Appellants were the defendants while the Respondents were plaintiffs.
The claim of the Respondents against the Appellants as contained in their amended statement of claim was for a declaration of title to the land in dispute in their favour, a declaration that the Appellants were trespassers and an order of perpetual injunction restraining the Appellants from trespassing on the land.
In summary, the Respondents’ case in the Court below was as follows: According to the Respondents, the land in dispute was founded by their grandparents over one hundred (100) years ago. The ruins of their parents settlement and graves are on the land. In 1998, Appellants’ parents settled on the land and when they were confronted, they said they were settling only on a temporary basis. In 2013, the Appellants approached the Emir of Old Muri and said they wanted to remain on the land permanently but the Respondents did not agree. The
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Appellants started laying claim to the land in dispute.
In their defence, the Appellants stated that they were grazing their cows during the rainy season each year on the land in dispute and they became the owners of the land by virtue of inheritance from their parents who were the founders of the land. That their parents discovered the land in dispute fifty (50) years ago. That they inherited the land and have been living and grazing there for several years without challenge from anybody including the Respondents.
After considering the evidence led by the parties and addresses of learned counsel for the parties, the Court below entered judgment in favour of the Respondents and granted the reliefs sought by the Respondents in their amended statement of claim.
The Appellants have approached this Court by a notice of appeal dated and filed on 5th September, 2018. The notice of appeal contains five grounds of appeal. From the five grounds of appeal, the Appellants presented the following four issues for determination in the Appellants’ Brief of Argument dated 9th May, 2019 filed on 10th May, 2019 but deemed duly filed and served on 17th March, 2020:
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- Whether having found that the pieces of traditional evidence adduced by the Respondents as Plaintiffs at the trial are contradictory and or conflicting, the Court below was not in grave error when it proceeded to declare same inconclusive rather than discountenancing the contradictory/conflicting evidence before it. (Distilled from Ground One (1) of the Grounds of Appeal).
2. Whether in a relief of declaration and injunction, failure of a defendant to cross examine a witness on a fact pleaded which is not credible, can be deemed to amount to an admission, and whether a defendant who does not have a Counter-claim has an evidential burden to disprove what the Plaintiff did not prove. (Distilled from Grounds Two (2) and Four (4) of the Grounds of Appeal).
3. Whether a Plaintiff who relied on prove (sic) of title by traditional history has failed to establish same through credible evidence, such a Plaintiff can resort to acts of possession and ownership, and whether the Plaintiff in the circumstance no longer has the evidential burden to establish how he came about the land claimed. (Distilled from Ground Three (3) of the Grounds of Appeal).
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- Whether the plaintiff has led cogent, credible, and compelling traditional evidence to be entitled to the reliefs, and whether the declaration made by the Court below was not gratuitous. (Distilled from Grounds Five (5) and Six (6) of the Grounds of Appeal).The Respondents on their part submitted the following issues for determination in their brief dated and filed on 14th April, 2020:
1. Whether the Court below was right when it found the evidence adduced by the Respondents (as Plaintiffs) on traditional history inconclusive and proceeded to declare title to the Respondent on proof of acts of ownership and possession (Distilled from grounds one(1).
2. Whether the Court Below was right to have held that the evidence adduced by the Respondents (as Plaintiffs) on acts of ownership was credible and failure to cross-examine same(sic) by the Appellants (as defendants) amounts to admission (Distilled from grounds two (2) four (4).
3. Whether a Plaintiff whose proof of traditional evidence was rightfully found by the Court to be inconclusive, such Plaintiff can be said to have failed to establish same even when he proved acts of
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ownership and possession (Distilled from Ground Three (3).
4. Whether the Respondents (as Plaintiffs) have established their claims through cogent evidence before the Court Below to be entitled to the reliefs sought (Distilled from grounds five (5) and six (6)).
Learned counsel for the Appellant argued issues 1 and 3 together.
The Respondent on the pleadings relied on traditional history, it was submitted that the Court below having found that the “the traditional evidence adduced by the plaintiffs as to the person(s) who founded the land in dispute and exercised original acts of possession contradictory” determined the case on acts of ownership and possession. The Court was referred to Yahaya Vs. Ilorin W.L. G. (2017) All FWLR (Pt. 874) 1839 at 1851; Oyadare Vs. Keji (2005) All FWLR (Pt. 247) 1583 at 1595; Adeyemi Vs. Ovba (2017) All FWLR (Pt. 870) 1004 at 1015 and Gambari Vs. Ibrahim (2012) All FWLR (Pt. 644) 29. It was submitted that when a piece of evidence is adjudged by a Court to be contradictory the Court will normally reject it or discountenance it.
It was submitted that in a claim for declaration
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of title to land, the plaintiff must among other requirements establish by credible and sufficient evidence who founded the disputed land, otherwise his claim will fail. The Court was referred toNwabude Vs. Ugodu (2011) All FWLR (Pt. 604) 26.
On issues 2 and 4, it was submitted that contrary to the holding of the Court below, the Appellants did not specifically deny the existence of Respondents’ old settlement, graves, tamarind and grinding stones on the disputed land as contained in the statement of claim, particularly paragraph 8 thereof, the Appellants frontally denied the averments of the Respondents. That the Appellants also gave a vivid account of how the Appellants came about the land and how they grazed on the land but during dry season they take the cows to Garin Usmanu. That the Appellants gave the features and description of the old settlement to include the old settlement of the Appellants parents which contained nine (9) Fulani huts.
Appellants’ counsel reproduced paragraph 9 of Appellants joint statement of defence and submitted that the Appellants joined issues with the Respondents on the pleadings. Rather than view the
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entire pleadings of the Appellants, the Court below it was contended, merely chose paragraph 7 of the Appellants pleadings and held same to have amounted to a general traverse and thus an admission. The case of a defendant, it was submitted, must be examined as a whole in order to appreciate where issues are joined and where defence admitted facts contained in the statement of claim. The Court was referred to Ibokolo Vs. Tariah (2012) All FWLR (Pt. 653) 1928 at 1930.
Assuming the Appellants by paragraph 7 admitted the facts of letting and the presence of graves, old settlement etc of the Respondents’ grandparents on the disputed land, a claim for declaration of title to land and injunction, it was submitted, is sue generis in the sense that even where the defendant fails to offer a defence or pleads liability to the plaintiff’s case the plaintiff still has the responsibility of proving his claim to be entitled to judgment. The Court was referred to Ikegwuoha Vs. Ohawuchi (1996) 3 NWLR (Pt. 435) 146.
It was contended that merely stating that the Respondents were letting other portions of the disputed land to other people without more, that
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is, stating who did the letting between the Respondents and their grandparents, to whom they have been letting the said other portions and when the letting ceased cannot translate to credible evidence which must be challenged under cross examination.
The Respondents, it was argued, failed to positively plead the founder of the disputed land.
Learned counsel for the Respondents also argued issues 1 and 3 together. He submitted that where evidence of traditional history given by a plaintiff is inconclusive a Court may yet determine ownership of the disputed land in favour of a plaintiff if he succeeds in establishing acts of ownership numerous and positive to warrant that their possession of the land is to the exclusion of the defendants. The Court was referred to Awara & Ors Vs. Alalibo & Ors (2002) 12 NSCQR 413 at 455.
The Respondents, it was submitted, relied not only on traditional history but also on acts of ownership in establishing their claim before the Court below.
The Court below, it was submitted, did not decide that the entire pieces of evidence relied on by the Respondents were contradictory and conflicting but that it
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was specific on what part of the traditional history is conflicting. That the Court below only adjudged one point out of the three points of proving traditional history relied upon by the Respondents to be contradictory and conflicting. It was submitted that a plaintiff who relied on traditional history needs to plead and prove:
(a) How the land was founded;
(b) The persons who founded the land and exercised original acts of possession and
(c) The persons on whom the title in respect of the land devolved since its first founding.
Learned counsel for the Respondents submitted that two out of the above requirements were rightly found to be pleaded and proved by the Respondents. It was submitted that the absence of one of the three requirements of proving traditional history would not vitiate the cogent uncontradictory evidence adduced by the Respondents that the Respondents proved:
(i) How the land was founded and
(ii) The persons on whom the title in respect of the land devolved.
On issues 2 and 4, it was submitted that once the statement of defence does not categorically deny the averments in the statement of claim, the
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defendant is taken as having admitted the averments. The Court was referred to Owosho Vs. Dada (1984) 7 SC 149. The Appellants, it was contended, failed to categorically deny some material facts in the Respondents averments in their amended statement of claim. The Appellants, it was further contended, failed to cross-examine the Respondents on material facts of the case, the Respondents put forward in the Court below.
It was submitted that the contention of learned counsel for the Appellants that the pieces of evidence given by the Respondents on acts of ownership are not credible simply because of failure to mention persons to whom portions of the land were given on rent as well as the time of that incident was not based on any principle of law.
Learned counsel for the Respondent reproduced paragraphs 4 – 12 of the Respondents amended joint statement of defence as well as the statement on oath of the PW1 which was also reproduced extensively.
It was submitted that on the pleadings and evidence, the Respondents pleaded the founders of the disputed land by way of deforestation and the intervening owners upon whom the land devolved up to the
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Respondents. It was submitted that a person who merely discovers land without doing anything on it cannot be said to have founded the land.
The only issue for determination in this matter is as follows:
Whether on the evidence adduced by the parties, the Court below rightly entered judgment in favour of the Respondents.
The Respondents sought a couple of declaratory reliefs. It is the law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. See Anyanru v. Mandilas Ltd. (2007) 4 SCNJ 288, Chukwuma v. S.P.D.C. (Nig.) Ltd (1993) LPELR-864 at 64 – 65 and Matanmi & Ors v. Dada & Anor (2013) LPELR – 1929.
In the instant matter, the Respondents pleaded that the Appellants were nomads who first came into the land in 1998. When they were confronted by the Respondents, they said they would only be on the land for a short time. The 1st Appellant in his statement on oath admitted this much. According to the 1st Appellant, they grazed their cows in the rainy season every year on the land.
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Respondents pleaded and led evidence that the land was founded by their grandparents over one hundred (100) years ago. The Appellants did not cross examine either the PW1 and PW2 (the two Respondents) on this crucial piece of evidence as the Court below rightly found. Instead Appellants pleaded and gave evidence that their parents discovered the land (50) years ago. This is an admission that they met the Respondents on the land. The Respondents pleaded and led evidence of certain features on the land in dispute. These are the old settlement and graves of the Respondents’ grandparents on the disputed land. As the Court below rightly pointed out, the Respondents were not cross examined on these crucial pieces of evidence.
Where the adversary fails to cross examine a witness upon a particular matter the implication is that he accepts the truth of that matter as led in evidence. The Court can take the silence of the adversary as acceptance that he does not dispute the fact. See Oforlete v. The State (2000) LPELR – 2270 SC, Isah v. State (2017) LPELR – 43472 SC, Ewugba v. State (2017) LPELR – 43833 SC and Oludamilola v. State (2010) LPELR – 2611 SC.
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On their pleadings and evidence, the Respondents were entitled to the declaratory reliefs sought.
The only issue for determination formulated by the Court is therefore resolved against the Appellants and in favour of the Respondents and the appeal dismissed.
Respondents are awarded N100,000 costs which shall be paid by the Appellants.
CHIDI NWAOMA UWA, J.C.A.: I read before now, the judgment of my learned brother JAMES SHEHU ABIRIYI, JCA. His Lordship has comprehensively and adequately resolved the sole issue for determination of this appeal and I have nothing to add. I adopt his reasoning and conclusion arrived as mine and also dismiss the appeal.
I abide by the order made as to costs in the leading judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
D. Ubandoma, Esq. For Appellant(s)
A. Modibbo, Esq. For Respondent(s)
