BELLO v. MASHI (2020)

BELLO v. MASHI

(2020)LCN/14219(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, May 19, 2020

CA/YL/74/19

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

ARDO BELLO APPELANT(S)

And

CALVIN JOHN MASHI RESPONDENT(S)

RATIO

WAYS OF ESTABLISHING TITLE TO LAND BY WAY OF TRADITIONAL HISTORY

It is the law and agreed upon by both learned counsel in their respective briefs of argument that for a plaintiff to establish title by way of traditional history, the plaintiff must plead and establish through evidence the following facts:
1. Who founded the land
2. How he founded the land; and
3. The particulars of intervening owners through whom he claims down to the plaintiff.
The plaintiff therefore, must lead evidence to show his root of title, this includes how his ancestors came to own the land and how it devolved over the years on the claimant’s family until it got to him. It is essential to plead who founded the land, how he founded it and the particulars of intervening owners through whom he claims. See ANYANWU VS. MBARA & ANOR (1992) LPELR – 516 (SC) PP. 15 – 16, PARAS. F – B, KALIO & ANOR VS. WOLUCHEM & ANOR (1985) LPELR – 1651, (SC) PP. 34 – 35, PARAS. C – A, AKINLOYE & ANOR S. BELLO EYIOLA & ORS. (1968) NMLR 92; ADEJUMO VS.AYANTEGBE(1989) 3 NWLR (PT. 110) 417, OLUJINLE VS. ADEAGBO (1988) 2 NWLR (PT. 75) 238 and NKADO & ORS. VS. OBIANO & ANOR (1997) LPELR – 2043 (SC) PP. 16 – 17, PARAS. F – A. PER UWA, J.C.A.

WHAT IS A PERVERSE JUDGEMENT?

As to whether the decision of the trial Court was not perverse when it held that the disputed land was given to the appellant as a tenant after the Tiv people had left the said land? In considering what a perverse judgment is, I refer to the case of UDENGWU VS. UZUEGBU & ORS (2003) LPELR – 3293 (SC) PP. 14 – 15, PARAS. G – C where his Lordship Uwaifo, JSC held thus:
“A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence; or that it misconceived the thrust of the case presented; or took irrelevant matters into account which substantially formed the basis of its decision, or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all this, a miscarriage of justice, and the decision must be set aside on appeal. See ATOLAGBE VS SHORUN (1985) 1 NWLR (PT. 2) 360; ADIMORA VS. AJUFO (1988) 3 NWLR (PT. 80) 1; AGBOMEJI VS.BAKARE (1998) 7 SC (PT. 1) 10; (1998) 9 NWLR (PT. 564) 1; ODIBA VS. AZEGE (1998) 7 SC (PT. 1) 79; (1998) 9 NWLR (PT. 566) 370.”
See also, RABIU VS. KANO STATE (1980) LPELR – 2936 (SC) P. 111, PARAS. B – D and MAMONU & ANOR VS. DIKAT & ORS (2019) LPELR – 46560 (SC) PP. 53 – 55, PARAS. F – A. PER UWA, J.C.A.

PROCEDURE TO BE FOLLOWED AT A VISIT TO LOCUS IN QUO OR INSPECTION

Section 127 of the Evidence Act, 2011 particularly 2(a) and (b) set out the procedure to be followed at a visit to locus in quo or inspection thus:
127. (1) If oral evidence refers to the existence or condition of any material other than a document, the court may, if it deems fit –
(a) require the production of such material thing for its inspection; or
(b) inspect any immovable property the inspection of which may be material to the proper determination of the question in dispute.
(2) When an inspection of property under this section is required to be held at a place outside the Court room, the Court shall either –
(a) be adjourned to the place where the subject matter of the said inspection may be and the proceeding shall continue at that place until the Court further adjourns back to its original place of sitting, or to some other place of sitting, or
(b) attend and make an inspection of the subject – matter only, evidence, if any, of what transpired there being given in Court afterwards, in either case the defendant: if any, shall be present.
Therefore, evidence obtained at the visit is real and reliable because the Court sees the subject matter in contention first hand and in the presence of the parties. The parties are also given the opportunity to testify at the scene, ask questions or to be questioned whatever the case may be, over testimony already given that needs clarification. For these reasons, proceedings could continue at the scene (from Court) and back to the Court or proceedings in Court could be adjourned for the inspection of the subject matter, evidence could be given in court thereafter of what transpired at the visit to locus in quo. PER UWA, J.C.A.

WHETHER OT NOT THE COURT CAN AWARD TO A CLAIMANT THAT WHICH HE DID NOT CLAIM

In EKPENYONG & ORS VS. NYONG (1975) LPELR – 1090 (SC) PP. 11 – 12, PARAS. E – A His Lordship, Ibekwe, JSC held thus:
“It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law; but good sense. A Court of law may award less, and not more than what the parties have claimed. Afortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.”
See also NWOKORO & ORS VS. ONUMA & ANOR (1999) LPELR – 2126 (SC) P. 30, PARAS. B – C; (1999) 12 NWLR (PT. 631) P. 342, EDILCON (NIG) LTD VS. UBA PLC (2017) LPELR – 42342 (SC) PP. 31 – 32, PARAS. B – F and COUNTY & CITY BRICKS DEVELOPMENT CO. LTD & ANOR VS. MKC (NIG) LTD & ORS (2019) LPELR – 46889 (CAA) PP. 38 – 39, PARA. B. PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Taraba State High Court delivered on 24/12/18 in favour of the plaintiff now Respondent.

The background facts are that the Respondent as plaintiff filed his writ of summons and statement of claim at the High Court of Taraba State (hereafter referred to as the trial Court) against the appellant as defendant and claimed the following reliefs:
“A DECLARATION that the plaintiff is the owner of the expanse of land lying and situate along Jalingo Wukari Road by area of Sibre, Iware Ward, Ardo Kola Local Government Area, Taraba State which land is bounded as follows:
I. To the East by the land of Danjuma Daniel.
II. To the West by the land of Samaila Voto Luka.
III. To the North by the Jalingo Wukari Road, and
IV. To the South by the land of Sunday Gasenk.
B. A DECLARATION that the refusal of the Defendant to leave the land of the plaintiff when asked to do so by the plaintiff amount to trespass.
C. AN ORDER of perpetual injunction retraining the Defendant either by himself, agents, heirs or anybody

claiming through him from acts of trespass on the land.
D. General Damages of Two Million Naira (N2,000,000.00) for trespass.
E. Cost of filling and prosecuting this suit.”

At the trial, the Respondent called four (4) witnesses out of five (5) earlier listed. A criminal summons by the Appellant against the Respondent at Magistrate’s Court, Jalingo was tendered through the PW4 and admitted in evidence as Exhibit ‘A’. The appellant on his part called six (6) witnesses, tendered one document, a site plan through the DW5, admitted in evidence as Exhibit ‘B’. At the close of the trial, the judgment entered in favour of the Respondent did not go well with the Appellant, thus this appeal.

The appellant formulated the following issues for the determination of the appeal:
1. “Whether by the circumstances of this case and the evidence adduced before the trial Court the plaintiff/respondent has proved his case as required by law so as to be entitled to judgment in his favour? (Distilled from grounds 1, 3, 5 & 8 of the grounds of appeal).
2. Whether the decision of the trial Court was not

perverse when the trial Court held that the disputed land was given to the appellant as a tenant after the Tiv people had left the said land? (Distilled from ground 4 of the grounds of appeal).
3. Whether by the facts and circumstances of this case there was no miscarriage of justice and breach of the appellant’s right to fair hearing when the trial Court relied heavily on and made use of his personal observations and evidence obtained at the locus when the right procedure to conduct a visit was not followed? (Distilled from ground 2 of the grounds of appeal).
4. Whether the trial Court was right to suo motu award against the appellant the sum of N200,000.00 as general damages of economic trees when such a claim was neither prayed for by the respondent nor does it naturally flow from the pleadings and evidence before the court? (Distilled from ground 6 of the grounds of appeal).
5. Whether by the facts of this case the trial Court was right when the Court expunged the evidence of DW3? (Distilled from ground 7 of the grounds of appeal).

The Respondent on his part formulated the following two issues for the determination of the appeal thus:

“Whether having regard to the evidence adduced before the trial Court, the learned trial judge was right to have given judgment in favour of the plaintiff and to have awarded the sum of Two Hundred Thousand Naira (N200,000.00) as general damages against the Appellant. (Distilled from grounds 1, 2, 3, 5 and 8 of the Appellant’s Notice of Appeal).
2. Whether the Appellant’s right to fair hearing can be said to have been infringed when the learned trial judge relied on the records at the locus in quo and also expunged the evidence of DW III.” (Distilled from grounds 6 and 7 of the Appellant Notice of Appeal).

In arguing the appeal, the learned counsel to the Appellant B. Vaatsav Esq., relied on his brief of argument filed on 17/5/19 and his reply brief filed on 4//9/19 as his argument in this appeal, in urging us to allow the appeal, set aside the judgment of the trial Court and dismiss the claim or in the alternative, order for a retrial of the Respondent’s case. The learned counsel argued his issues one (1) and two (2) together. It was submitted that the Respondent failed to establish by credible evidence

that he is entitled to any of the reliefs sought against the appellant as contained in his statement of claim and that he who asserts, proves. See, Sections 131 (1) and (2), 132 and 133 of the Evidence Act, 2011. The learned counsel enumerated the five ways of establishing root of title to land. These are:
a. Proof by traditional evidence.
b. Proof of various acts of ownership.
c. Proof by production of documents of title which must be authenticated.
d. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done.
e. Proof of possession of connected 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.
See, BELLO VS. SANDA (2012) 1 NWLR (PT. 1281) P. 219 at 223 and YUSUF VS. ADEGOKE (2007) 4 S.C. (PT. 1) P. 126 at 137. It was submitted that the Respondent who claimed title to the land in dispute through traditional history was duty bound to establish so through cogent and credible evidence. See AJIBOYE VS. ISHOLA (2006) 11 MJSC P. 191 at 196 and ANYAFULU VS. MEKA (2014) ALL

FWLR (PT. 731) 1510 at 1523, H – B. It was argued that the Respondent in his pleadings pleaded that his grandfather Gavo Mashi was the original founder of the land from whom it was passed to his father John Kanken from whom he inherited the land, reference was made to paragraphs 6, 10, 11 and 12 of the statement of claim, pages 6 – 7 of the printed records of appeal. Whereas, the PW3 (Markus Sanya) testified that the land was deforested by the Respondent’s great grandfather who was not named about one hundred years ago, reference was made to the evidence of the PW3 under cross examination, page 131, lines 9 – 10 of the printed records of appeal. Also, that the evidence of the PW2 was to the effect that the great grandfather of the Respondent founded the land in dispute which is contradictory to the pleadings of the Respondent. It was submitted that the contradictions were not explained. See STATE VS. CINTALI (2002) 3 LRCNCC (reprint 2008) 167 at 177. Further, that from the evidence of the PW2 and PW3 it is not clear whether Gavo Mashi is the Respondent’s grandfather or great grandfather who deforested the land in dispute. It was

submitted that the Appellant is entitled to utilize the contradictory root of title elicited from the Respondent’s witnesses PW2 and PW3 against the Respondent. See WUYAH VS. JAMAA LOCAL GOVERNMENT, KAFANCHAN (2013) ALL FWLR (PT. 659) P. 1171 at 1193. Further, that from the evidence put forward by the Respondent, it is impossible to ascertain the actual founder of the land in dispute. See SUNDAY UKWU EZE VS. GILBERT ATASIE (2000) 79 LRCN 1998 at 2013.

It was the argument of the learned counsel that the Respondent pleaded that his grandfather Gavo descended from Yorro Mountain to settle on the land in dispute while in his evidence as the PW4, he testified that his father migrated from Lasheke Mountain to settle on the land in dispute, page 136, lines 18 – 19 of the printed records of appeal. It was submitted that the Respondent’s pleadings differ from the evidence in support. See JEU VS. DOLO (2012) ALL FWLR (PT. 641) 1513 at 1540 B – C, ONYEKWELU VS. ELF PETROLEUM (NIG) LTD (2009) 173 LRCN P. 186. Further, that the PW1, PW2 and PW3 gave different years in respect of when the Respondent’s great grandfather deforested

the land, different from the period given by the Respondent. It was submitted that the Court cannot pick and choose which year to accept as when the land in dispute was deforested. See, UBOETOK ESSIEN VS. JOSEPH HENDAN & 1 OR (2005) NNLR P. 598 at 615. It was contended that, contrary to the Respondent’s pleadings, he testified that he was living on the land in dispute as at the time he instituted the action on 16/10/15.

It was the contention of the learned counsel that the Respondent failed to prove his title to the land in dispute and ought to succeed on the strength of his case not on the weakness of the defence. See EGOM VS. ENO (2008) 11 NWLR (PT. 1098) 320 at 343, ORJI VS. DORJI TEXT MILLS (NIG) LTD & ORS (2010) 182 LRCN P. 129 at 147. It was argued that the Respondent having failed to prove his title to the land in dispute could not have rightly put the appellant on the land as claimed. On the other hand, that the Appellant proved his title to the land in dispute and put some tenants of Tiv origin on the land and tendered a site plan all of which the Respondent did not challenge or deny.

In arguing the third issue, it was

submitted that Section 127 (1) (b) and (2) (a) & (b) of the Evidence Act, 2011 provides for the procedure relating to visit to locus in quo by a court of law. See OSISANYA VS. ODUGBESI (2005) ALL FWLR (PT. 287) P. 899 at 910 – 911 F – A. It was argued that the purpose of the visit to locus in quo was in relation to the order of interlocutory injunction earlier issued suo motu, page 128, lines 3 – 9 of the printed records of appeal. It was alleged that the trial Court violated all the laid down procedure relating to visit to locus and proceeded to suo motu take some notes based on the judge’s personal observation. Further, that the Respondent gave evidenced not pleaded, pages 126 – 128 of the records. Such evidence was said not to have passed through the test of cross examination by the Appellant.

It was argued that the trial court’s observations ought not to have been utilized by the trial Court in its judgment, pages 222, lines 20 – 23, 224, 226, lines 4 – 13 and 232, lines 1 – 7. We were urged to expunge the entire proceedings conducted at the visit to locus in quo as it breached the

Appellant’s right to fair hearing. It was concluded on this issue that the Respondent failed to prove his root of title and his case ought to have been dismissed. See ODUNZE VS. NWOSU (2007) ALL FWLR (PT. 379) P. 1295 at 1331 – 1332 G – A.

On the fourth issue, it was submitted that the Respondent neither pleaded nor led evidence that the appellant burnt any economic tree on the land in dispute. Therefore, that the award of N200,000.00 (Two Hundred Thousand Naira) to the Respondent by the trial court is not supported by the pleadings or evidence. See ATIVIE VS. KABELMETAL (NIG) LTD (2008) ALL FWLR (PT. 430) P. 667 at 676, D – E.

In the fifth issue, it was argued that the trial Court expunged the statement on oath of the DW3 as it failed to comply with the Rules of the trial Court without stating the nature of the non-compliance. Without conceding that the statement on oath of the DW3 was defective, it was submitted that the defect was cured when the DW3 appeared in Court and adopted the said statement in the witness box and was cross examined by the learned counsel to the Respondent. See KALU IGU UDUMA VS. PRINCE AMA ARUNSI & 14 ORS

(2012) 7 NWLR (PT. 1298) PAGE 55 at 97. It was submitted that the statement in question has the signature and stamp of the authorized Commissioner for Oaths of the Taraba State High Court Registry, Jalingo and not the stamp and signature of counsel as alleged. Further, that the failure of the trial Court to consider the evidence of the DW3 is a breach of the appellant’s right to fair hearing contrary to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It was concluded on this issue that the trial Court ought not to have utilized the evidence adduced by the DW3 under Cross Examination having expunged the statement on oath reference was made to page 225, lines 9 – 15 of the records. It was contended that had the trial Court considered the evidence in chief of the DW3, it would have arrived at a different decision.

In response, the learned counsel to the Respondent, E.N. Chia Esq., adopted and relied on his brief of argument filed on 20/8/19 as his argument in urging us to dismiss the appeal and affirm the judgment of the trial Court. The learned counsel to the respondent conceded that the

Respondent’s claim at the trial Court was founded on traditional history in which the following must be proved;
(a) Who founded the land
(b) How he founded the land; and
(c) The particulars of intervening owners through whom he claims down to the plaintiff.
See AWODI VS. AJAGBE (2015) ALL FWLR (PT. 769) PG. 1129 at 1131 SC and ANYAFULU VS. MEKA (2014) ALL FWLR (PT. 73) PAGE 1510 at 1523, PARAS. H – B. It was argued that the contradictions as argued by the Appellant are immaterial and did not affect the case of the Respondent. It was submitted that what the plaintiff needed to prove is the name and not the nomenclature of the founder. See EZE VS. ATASIE (2000) 6 SCNJ PAGE 209 at 218 – 219, PARAS. 10 – 15, reference was made to paragraphs 6 – 14 of the Respondent’s pleadings which stated that Gavo Mashi was the founder of the land in dispute, who was referred to by the PW3 under Cross Examination as the Respondent’s great grandfather, instead of grandfather. It was argued that it was one and the same person, Gavo Mashi that was referred to as the great grandfather and grandfather, because the title

given to a person does not change his name. See AREMU VS. ADETORO (2007) ALL FWLR (PT. 388) PAGE 985 at 1004, PARAS. B – D. It was further argued that it was immaterial whether the founder of the land in dispute came from Yorro Mountain or Lasheke Mountain, where the founder came from to be pleaded was argued not to be a requirement to prove first settlement. It was submitted that the evidence given by the PW1, PW2 and PW3 as to their ages to determine when the land in dispute was founded was not pleaded by the Appellant. Further, that when the land was founded is not relevant to prove title but, rather who founded the land. See OYEKAN VS. OYEWALE (2012) ALL FWLR (PT. 623) PAGE 1991 at 2007, PARAS. B – C. The contradictions anchored on ages of the witnesses were argued to be irrelevant.

On the Respondent’s residence, it was submitted that by a combined reading of paragraphs 1 and 6 of the Respondent’s pleadings, the Respondent resides in Sibre Village and the land in dispute is located at Konkere Dizing Area of Sibre Village. It was argued that there was no appeal against the trial Court’s finding that the Respondent lived

on the land in dispute and moved out to Sibre less than a year before he filed the action and had also shown the Court the ruins of his house during the visit to locus in quo, page 226 of the printed records of appeal. See LADOJA VS. AJIMOBI (2016) LPELR – 40658 (SC) PAGE 45, PARAS. A – D.

It was argued that the Respondent having established that he owned the land in dispute, the contradiction if any as to when he gave the land to the Appellant is immaterial and that the Appellant not having called any of the tenants he let the farm out to as a witness created doubt in his claim of ownership and possession of the land. It was further argued that the reasons given by the appellant in support of his argument, that the judgment of the trial Court is perverse is not in consonance with the position of the law on when a judgment could be said to be preserve. See OLAFEMI VS. AYO (2010) ALL FWLR (PT. 526) PAGE 597 at 562, PARAS C – B. It was reargued that the appellant failed to call those he said he put on the land to farm and live on, which was fatal to his case.

On the award of the sum of N200,000.00 as general damages against the

appellant, it was submitted that it was pleaded in paragraphs 30 (b) and (d). It was argued that general damages need not be proved by evidence but, arises by inference. See FADEYI VS. OWOLABI (2015) ALL FWLR (PT. 789) PAGE 816 at 847 – 848, PARAS. F – F and BRITISH AIRWAYS VS. ATOYEBI (2015) ALL FWLR (PT. 766) PAGE 442 at 466 – 467, PARAS. G – F. The trial Court was said to be right to have awarded the general damages having found that the Respondent was the owner of the land which the appellant refused to vacate.

In arguing his issue two, it was submitted that the Appellant did not state the procedure allegedly violated by the learned trial judge at the visit to locus in quo. It was submitted that, there was no miscarriage of justice by the Court on the inspection of the land in dispute and making notes at the visit. It was argued that by Section 127 (2) of the Evidence Act, 2011, the Court is permitted to take notes at the visit to locus in quo. See, BRIGGS VS. BRIGGS (1992) 3 NWLR (PT. 228) PG. 128, OLUMOLU VS.ISLAMIC TRUST (1996) 2 SCNJ PAGE 29 and AKEREDOLU VS. AKINREMI (1989) 3 NWLR (PT. 108) PAGE 164 at 174 – 175.

It was the contention of the learned counsel that the trial Court confirmed evidence already given by the respondent as the PW4 as to his boundary neighbours, evidence of the old settlement, page 137 of the printed records. It was submitted that the Appellant’s right to fair hearing was not breached since the evidence of the PW4 as to his previous occupation of the land in dispute was obtained under cross examination.

On expunging the statement on oath of the DW3, it was submitted that the trial Court was right to have done so, the statement having been signed before learned counsel in his office rather than before the commissioner for oaths which rendered the said statement inadmissible in evidence. See BUHARI VS. I.N.E.C. (2009) ALL FWLR (PT. 459) PAGE 419 at 479 and CHIDUBEM VS. EKENNA (2009) ALL FWLR (PT. 455), PAGE 1692.

In reply to the Respondent’s first issue, it was submitted by the learned counsel to the Appellant that the contradictions in question as to the founder of the disputed land ought to have been explained by the Respondent’s witnesses’ evidence on record and not by the address of counsel or by the judgment of

the trial Court. See STATE VS. CINTALI (2002) 3 LRC NCC (REPRINT 2008) 167 at 177.

It was further argued that the particulars of the intervening owners through whom the respondent claimed were not proved and also, his title. See ELEGUSHI VS. OSENI (2005) 23 NSCQR 193 at 209. It was reargued that the Respondent did not plead and prove when the disputed land was founded by any of his ancestors. See ELEGUSHI VS. OSENI (supra) at 210, E – F. Also, that the Respondent at the visit to the locus in quo did not identify any old settlement, therefore reference to an old settlement by the trial Court is not supported by evidence or law.

On the award of the general damages, it was submitted that the addition of “for the economic trees burnt down….” makes the damages to be specific in nature and by law and ought to have been specifically pleaded and proved with particulars by the Respondent. See XTOUDOS SERVICES (NIG) LTD VS. TAISEI (2006) ALL FWLR (PT. 333) 1640 at 1653, C – F.

In response to the Respondent’s issue two, it was submitted that the notes made by the trial Court were personal and cannot be tied to any

party or witness and that there is nothing on record to show that the appellant was given an opportunity to cross examine. It was argued that the essence of the visit, was not clarified prior to the visit to enable the appellant prepare better and that the appellant was grossly misled by the procedure at the visit to the locus in quo.

The issues formulated by the Appellant are covered by those formulated by the Respondent. I would utilize the Appellant’s issues in the determination of the appeal. Issues one and two will be resolved together as argued. It is not disputed that the respondent’s case at the trial Court was founded on traditional history. It is the law and agreed upon by both learned counsel in their respective briefs of argument that for a plaintiff to establish title by way of traditional history, the plaintiff must plead and establish through evidence the following facts:
1. Who founded the land
2. How he founded the land; and
3. The particulars of intervening owners through whom he claims down to the plaintiff.
The plaintiff therefore, must lead evidence to show his root of title, this includes how his

ancestors came to own the land and how it devolved over the years on the claimant’s family until it got to him. It is essential to plead who founded the land, how he founded it and the particulars of intervening owners through whom he claims. See ANYANWU VS. MBARA & ANOR (1992) LPELR – 516 (SC) PP. 15 – 16, PARAS. F – B, KALIO & ANOR VS. WOLUCHEM & ANOR (1985) LPELR – 1651, (SC) PP. 34 – 35, PARAS. C – A, AKINLOYE & ANOR S. BELLO EYIOLA & ORS. (1968) NMLR 92; ADEJUMO VS.AYANTEGBE(1989) 3 NWLR (PT. 110) 417, OLUJINLE VS. ADEAGBO (1988) 2 NWLR (PT. 75) 238 and NKADO & ORS. VS. OBIANO & ANOR (1997) LPELR – 2043 (SC) PP. 16 – 17, PARAS. F – A. In the present case, as to who founded the land in dispute, how it was founded and how it devolved from the founder to the Respondent, the Respondent in paragraphs 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 pleaded that the land in dispute was founded by his grandfather Gavo Mashi (who descended from Yorro Mountain), who migrated and settled on the land, he deforested it, built huts and farmed on the land. It was averred that

when his grandfather died, his father John Kanken inherited the land, on the demise of his father, he as the first son inherited the land in dispute with the economic trees such as mangoes, locust beans, guava and Gmelima planted by his progenitors which he has been harvesting. The Respondent averred that nobody disturbed his grandfather or his father on the land.

Further, that his late father during his lifetime, gave the land in dispute to some Tiv people who farmed and lived on the land and paid tributes to him for over ten years. It was after the Tiv people left the land in dispute that he allowed the Appellant on the land in dispute as a tenant on request by the Appellant. It was pleaded that elders in the community were aware of the Appellant’s request, one Markus Sanya was said to be aware. The Appellant farmed on the land until the Respondent asked him to vacate the land and he refused to and instead took out an action in the Magistrate Court for criminal trespass against the Respondent. It is clear from the Respondent’s pleadings that he pleaded Gavo Mashi (his grandfather) as the founder of the land, in his evidence as the PW4 he

gave evidence in line with his pleadings, that his grandfather Gavo Mashi founded the land in dispute, deforested it, lived and farmed on it, on his demise his son (the Respondent’s father) John Kanken inherited the land and the economic trees which he passed on to the Respondent. Also, at a time the Respondent’s father gave the land in dispute to some Tiv people, who paid tributes to him and farmed on the land for over ten years and later left due to crises in the area between the Fulani and Tiv tribes. Thereafter, the Appellant pleaded with the Respondent to allow him farm on the land which, he did but, refused to vacate when asked to do so as earlier agreed upon in the presence of community leaders including Markus Sanya. The Respondent’s story was consistent under cross examination on how he came to be on the land in dispute and the fact that he gave the appellant the land to farm on. The Respondent’s witnesses gave evidence in line with the pleadings and evidence of the Respondent except the PW3 (a boundary neighbour), under Cross Examination, who testified that the great grandfather of the Respondent deforested the land in dispute

which the Appellant termed as a contradiction of the evidence in support of the Respondent’s case. But, in the evidence of the PW3, paragraphs 9, 10, 11, 12 and 13, he stated clearly that it was the Respondent’s grandfather Gavo who first deforested and settled on the land in dispute and on his demise, the land was inherited by the Respondent’s father John Kanken from whom the Respondent inherited from, paragraphs 14 – 19 of the PW3’s statement on oath. I agree with the submission of the learned counsel to the Respondent that referring to Gavo Mashi as the great grandfather of the Respondent is immaterial, the important thing is that all the Respondent’s witnesses and the Respondent gave evidence to the effect that it was Gavo Mashi that first settled on the land in dispute, deforested, lived and farmed on the land until his demise, which the Respondent’s father inherited and passed onto the Respondent. The pleadings and evidence adduced by the Respondent are consistent that Gavo Mashi first settled on the land in dispute and that the Defendant was let onto the land by the Respondent. Whether Gavo Mashi was referred to

as the great grandfather instead of grandfather of the Respondent is immaterial and does not alter the identity of the first settler to be Gavo Mashi, who without dispute is the grandfather of the Respondent. Minor discrepancy in the evidence of one of the witnesses is not fatal to the case of the Respondent. One aspect of the witness’ evidence should not be considered, rather his entire evidence and the evidence adduced by the other witnesses called by the Respondent including the pleadings and evidence of the Respondent in support of his case. See MBODAN VS. DABAI (2019) LPELR – 46739 (CA) PP. 17 – 18, PARAS. E – A. Where the evidence of all the witnesses are similar to the letter, one can be sure that they have been tutored to say the same thing in the same sequence. See ABOKOKUYANRO VS. STATE (2016) LPELR – 40107 (SC) PP. 25 – 26, PARAS. D – A, CHIEF AYOGU EZE VS. BRIG GEN. J. O. J. OKOLOAGU (RTD) ORS (2009) LPELR – 3922 (CA) PP. 32 – 33, PARAS. F – A and ENAHORO VS. QUEEN (1965) 1 ALL NLR 125. For contradiction if any to affect the case of a party, it has to be material, contradictions usually always

occur in the evidence of witnesses unless the evidence has been rehearsed. Where in the evidence in chief of the PW3, he testified that the Respondent’s father Gavo founded the land in dispute and deforested it and under cross examination stated that the great grandfather deforested the land in dispute could be termed a ‘slip’ or a minor discrepancy which cannot vitiate the case of the beneficiary of the Evidence.
Further, contrary to the argument of the learned counsel to the Appellant, whether the Respondent’s grandfather Gavo Mashi migrated from Yorro Mountain or Mount Lasheke to settle on the land in dispute is immaterial. What is important is that he was the first to settle on the land in dispute after he deforested it.

Also, contrary to the submission of the learned counsel to the Appellant, the year the Respondent’s grandfather deforested and settled on the land in dispute was not an issue at the trial Court. Therefore, using the estimated ages of the PW1, PW2 and PW3 to calculate when the Respondent’s grandfather could have settled on the land in dispute is a fruitless exercise. The year of first settlement was

not pleaded, to require proof. Therefore, the evidence of the PW3 elicited under cross examination where the grandfather of the Respondent Gavo Mashi was referred to as his great grandfather goes to no issue. On the effect of evidence on facts not pleaded, see AKINBADE & ANOR VS. BABATUNDE & ORS (2017) LPELR – 43463 (SC) PP. 19 – 20, PARAS. F – B, his Lordship Muhammad, JSC held thus:
“It is trite as well that for the evidence proffered in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of unpleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See MOROHUNFOLA VS. KWARA TECH. (1990) NWLR (PT. 145) 506 and ADEMESO VS. OKORO (2005) 14 NWLR (PT. 945) 308.”
See also NATIONAL INVESTMENT & PROPERTIES CO. LTD VS. THE THOMPSON ORGANISATION LTD & ORS (1969) LPELR 25547 (SC) P. 6, PARAS. C – D and ONUORAH & ANOR VS. ONUORAH (2018) LPELR – 46315 (CA) PP. 22 – 23, PARA. D.

At page 223 of the printed

records of appeal, the Trial Court found as follows:
“In considering this submission, I have carefully perused paragraphs 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22. In these paragraphs, the plaintiff clearly averred and testified to the fact that the founder of the land in dispute was Gavo his grandfather and how the land devolved down to his father John Kanken from whom he inherited upon his demised. These paragraphs when read together with paragraphs 3.06 and 3.07 of the plaintiff’s written address it is difficult to find the inconsistency referred to by the learned counsel’s argument. Because all the evidence for the plaintiff as far as the record of this Court is concerned the plaintiff and his witnesses have maintained same piece of evidence that Gavo Mashi was the grandfather of the plaintiff and that he met the land in dispute as virgin land and he deforested, built living huts and farmed various crops on the said land.”

I cannot fault the above finding of the trial Court. On the other hand as also found by the trial Court, the appellant named those he put on the land in dispute as his tenants who

live and farm on it but, he failed to call as witnesses any of the persons he claimed to have put on the land, which created doubt as to his ownership and possession of the land in dispute.

ATOLAGBE VS SHORUN (1985) 1 NWLR (PT. 2) 360; ADIMORA VS. AJUFO (1988) 3 NWLR (PT. 80) 1; AGBOMEJI VS.BAKARE (1998) 7 SC (PT. 1) 10; (1998) 9 NWLR (PT. 564) 1; ODIBA VS. AZEGE (1998) 7 SC (PT. 1) 79; (1998) 9 NWLR (PT. 566) 370.”
See also, RABIU VS. KANO STATE (1980) LPELR – 2936 (SC) P. 111, PARAS. B – D and MAMONU & ANOR VS. DIKAT & ORS (2019) LPELR – 46560 (SC) PP. 53 – 55, PARAS. F – A. The appellant has not shown how the decision of the trial Court falls in line with the criteria highlighted above for a perverse judgment. At the trial, the Appellant pleaded that he put tenants on the land including one Jauro Badun who lives and farms on the land in dispute, paragraph 17 of the appellant’s statement of defence. The appellant failed to call evidence in support of his pleadings by calling any or some of these supposed tenants to testify. The Appellant failed to explain their absence. The trial Court was therefore right to have held that the Appellant failed to prove the pleaded facts as to his ownership or possession of the land in dispute. In the case of CAMEROON AIRLINES VS. MR. MIKE E. OTUTUIZU (2011) LPELR –

827 (SC) P. 36, PARAS. C –D, the position of the law was succinctly put by his lordship Rhodes – Vivour, JSC thus:
“Averments in pleadings are facts as perceived by the party relying on them. There must be oral or/and documentary evidence to show that the facts pleaded are true consequently pleadings without evidence to support it are worthless.” The law remains that mere averments without evidence in proof of pleaded facts go to no issue. The trial Court was therefore right in its finding that the Appellant failed to lead evidence in proof of his pleadings that he owns and is in possession of the land in dispute and that tenants he let the land to are still in occupation and also farm on the land.

In paragraphs 24 – 29 of the Respondent’s pleadings, he averred that he let the Appellant unto the land in dispute after the Tiv people, his father had let the land to left, after crises between the Tiv and Fulani people, paragraph 22. It was pleaded that the land in dispute was given to the Appellant on request to farm for a while and would be given up whenever the Respondent required the land back and that it was

in the presence of some elders in his community including Markus Sanya. On asking the Appellant to leave the land in dispute, he refused. The Respondent as the PW4 gave evidence in line with his pleadings, similarly, the PW3 (Markus Sanya) gave evidence in support of the Respondent’s case, paragraphs 22, 23, 24, 25, 26, 27 and 28 of his statement on oath. Also, the PW3 (Sunday Gasenke) stated in his evidence that he was present when the Appellant came with the Respondent to his house and rented the land in dispute from the Respondent for a period of ten years. The PW2 gave evidence as to the features on the land, paragraph 14 of his written statement on oath. The Appellant who made out that it was his father that gave the land in dispute to the family of the Respondent did not adduce any evidence in proof of his assertion that his family gave the land in dispute to the Respondent’s family to live and farm on, at page 227 of the printed records of appeal the Trial Court held thus:
“Further placed before this Court, is the fact that the plaintiff went with the defendant before Markus Sanya (PW3) as the Wakili (leader) in the presence of

some elders and informed them of the defendant’s request.”

The above facts are substantiated by the evidence of the Respondent and his witnesses as highlighted above. The trial Court’s finding cannot be termed as perverse having been deduced from the Respondent’s pleadings and evidence proffered in support of same. I resolve issues one and two against the Appellant.

Issue three is whether there was a miscarriage of justice and breach of the appellant’s right to fair hearing when the trial Court relied on and made use of personal observations and evidence obtained at the locus when the right procedure to conduct a visit was not followed?

question in dispute.
(2) When an inspection of property under this section is required to be held at a place outside the Court room, the Court shall either –
(a) be adjourned to the place where the subject matter of the said inspection may be and the proceeding shall continue at that place until the Court further adjourns back to its original place of sitting, or to some other place of sitting, or
(b) attend and make an inspection of the subject – matter only, evidence, if any, of what transpired there being given in Court afterwards, in either case the defendant: if any, shall be present.
Therefore, evidence obtained at the visit is real and reliable because the Court sees the subject matter in contention first hand and in the presence of the parties. The parties are also given the opportunity to testify at the scene, ask questions or to be questioned whatever the case may be, over testimony already given that needs clarification. For these reasons, proceedings could continue at the scene (from Court) and back to the Court or proceedings in Court could be adjourned for the inspection of the subject matter, evidence could be

given in court thereafter of what transpired at the visit to locus in quo. The trial judge is permitted to make notes or keep record of what transpired during the visit, which is what happened in the present case. The appellant alleged that improper procedure was adopted by the trial Court but, did not go further to show what improper procedure was utilized by the trial Court. Both parties were present at the locus where the Court was able to see the land in dispute and the features therein which were in issue as well as the neighbouring boundaries of portions of land. It is on record that after the visit to locus both parties continued with the proceedings in the open Court. There is nothing to show that there was a miscarriage of justice. The boundary men to the land in dispute were confirmed, evidence having been earlier led as to whom they were and their knowledge of who owned the land in dispute. The Respondent pleaded ruins of his old settlement before he left the land in dispute for Sibre when some of the houses had fallen apart less than a year before his testimony as PW4. The Appellant had cross examined on the evidence led by the Respondent and his

witnesses concerning the features on the land in dispute. Before the visit to locus, the Respondent had testified and was cross examined, the appellant had also testified. The parties had equal opportunity to adduce evidence as pleaded by them which adverts a breach of a party’s right to fair hearing, where it is not so, an Appellate Court would be free to nullify the proceedings which is not the case here. See EJIDIKE VS. OBIORA (1951) 13 WACA 270 and CHIEF NWIZUKE VS. CHIEF EYE YOK (1953) 14 WACA 345. In ORUGBO VS. UNA (2002) LPELR – 2778 (SC) P. 27, PARAS. A – E, his Lordship Tobi, JSC gave the essence of a visit to locus as follows:
“The major essence of inspection of locus is to bring to the fore the evidence of both parties without bias. It is a forum to allow parties show the Court important boundaries and landmarks to enable the Court decide the issue or issues in dispute. Where parties are given equal opportunity at the locus to show boundaries and landmarks, show other evidence in their favour, an Appellate Court will not throw out the findings of the trial Court ….”

See GWAMILE VS. IDIH & ABIR (2018) LPELR – 44139 (CA) PP. 33 – 34, PARAS. D – A, ATANDA VS. ILIASU (2012) LPELR – 19662 (SC) P. 20, PARAS. C – E and BRIGGS VS. BRIGGS (1992) LPELR – 804 (SC) PP. 31 – 32, PARAS. D – A. What is seen at the locus is real evidence and it is the most satisfactory form of proof. Both parties agreed to the visit to locus for inspection, for the Court to see the land, the features on it as to the ruins of old settlement as pleaded by the Respondent, the economic trees and identifying the boundary neighbours to the land in dispute and ascertaining who put them on the land and what they knew about the particular land in dispute as to who has been living there and farming there over the years. There is nothing on record to show that the trial Court did not comply with the procedure for conducting an inspection. The Appellant had no basis to complain that the set out procedure was not complied with and was wrong to have alleged a miscarriage of justice and the appellant not being given fair hearing. At the scene the parties

were present and free to have asked questions if the need arose, the Appellant ought to have asked questions if the features on the land were not as pleaded by the Respondent supported by oral evidence. The appellant did nothing in rebuttal of what the Court and the parties observed at the inspection. At page 232 of the printed records of appeal the trial Court in respect of the visit to locus held thus:
“In this case the Court visited the locus in quo and in respected (sic) the key features mentioned by the witnesses in their written statement on oath, there the Court saw the old settlement pleaded by the plaintiff and evidence to that effect given some of the economic trees said to have been planted by the founders of the land in dispute, all of which the defendant was unable to rebut. These go to support acts of ownership and possession on the part of the case for the plaintiff.”
The above view shows the purpose and the outcome of the inspection by the Court in company of the parties, to see features already mentioned by the parties in their written statements on oath, the economic trees and old settlement pleaded by the Respondent

which the Appellant did not rebut at the inspection, if he did it would have been on record. The appellant had the opportunity to clarify any doubt if any at the inspection in respect of the evidence already adduced by the Respondent or even the Appellant’s witnesses. There was no evidence of bias or miscarriage of justice and the Appellant was not denied fair hearing. The procedure for inspection as outlined under Section 127 of the Evidence Act, 2011 was not flouted. Issue three is resolved against the Appellant.

The Appellant’s fourth issue challenged the award of N200,000.00 as general damages for economic trees, alleging that it was not prayed for. From the reliefs sought by the Respondent, what was sought was: General Damages of Two Million Naira (N2,000,000.00) for trespass. From the Respondent’s pleadings, he did not plead or lead evidence that the Appellant burnt down his economic trees on the disputed land. At page 233 of the printed records of appeal, the trial Court in its judgment, in order (4) held thus:
4. “That the defendant is ordered to pay the sum of Two Hundred Thousand Naira (N200,000.00) only as general

damages of economic trees burnt down by the defendant.”(underlined mine for emphasis)
A Court is only entitled to grant reliefs claimed by a party not extending such reliefs by awarding that which was not claimed. From the records of Court, the Respondent did not plead anywhere or lead evidence in respect of any burnt down economic trees by the appellant therefore, the trial Court was wrong to have granted general damages for economic trees burnt down by the appellant. In EKPENYONG & ORS VS. NYONG (1975) LPELR – 1090 (SC) PP. 11 – 12, PARAS. E – A His Lordship, Ibekwe, JSC held thus:
“It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law; but good sense. A Court of law may award less, and not more than what the parties have claimed. Afortiori, the Court should never award that which was never claimed or pleaded by either

party. It should always be borne in mind that a Court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.”
See also NWOKORO & ORS VS. ONUMA & ANOR (1999) LPELR – 2126 (SC) P. 30, PARAS. B – C; (1999) 12 NWLR (PT. 631) P. 342, EDILCON (NIG) LTD VS. UBA PLC (2017) LPELR – 42342 (SC) PP. 31 – 32, PARAS. B – F and COUNTY & CITY BRICKS DEVELOPMENT CO. LTD & ANOR VS. MKC (NIG) LTD & ORS (2019) LPELR – 46889 (CAA) PP. 38 – 39, PARA. B. The trial Court ought not to have awarded the Respondent a claim not proved. Granting what was not prayed for is an error on the part of the trial Court, the grant of the sum of N200,000.00 general damages for the burnt economic trees against the Appellant is hereby set aside. The fourth issue is resolved in favour of the Appellant.

The fifth issue is whether the trial Court was right to have expunged the evidence of the DW3? It is on record that the DW3 admitted that he made and signed his statement on oath in the presence of his counsel in his office after which he left for his house.

At page 143 of the printed records of appeal, the DW3 testified thus:
“It was the lawyer that recorded my statement in English and interpreted to me. Yes after he interpreted and I signed I went back to my house in Iware. Yes I gave the statement in his office and signed same in the office and I left to Iware.”
From the above evidence, it is obvious that the depositions of the DW3 were not sworn before a person duly authorized to administer oaths, the depositions are defective. The law requires that an oath must be signed in the presence of the person authorized to administer oaths. In the present case, the trial Court was satisfied and right to hold that the depositions were made in non-compliance with the rules of the Court and right to have expunged same having earlier been admitted in evidence. The learned counsel to the Appellant had argued that since the DW3 was cross examined under oath, it should have remedied the situation, I am afraid it did not, the statement of the DW3 was inadmissible, having been erroneously admitted in evidence, rightly expunged by the trial court. See BUHARI VS. INEC (2008) 12 SCNJ 1 at 91 where the Apex

Court concerning a statement on oath not sworn to before a Commissioner for oath held thus:
“When a deponent swears to an oath, he signs in the presence of the Commissioner for oaths who endorses the document authenticating the signature of the deponent. Signatures signed outside the presence of the Commissioner for oaths fall short of the requirement of the statute and such document purported to be sworn before the Commissioner for oaths is not legally acceptable in court.”
See ONYECHI EROKWU VS. JACKSON N. EROKWU (2016) LPELR – 41515, CHIDUBEM VS. EKENNA (2009) ALL FWLR (PT. 455) 1692 and MUHAMMAD & ORS. VS. GANI (2019) LPELR – 47190 (CA) PP. 23 – 24, PARA. C. I hold that the statement of oath on the DW3 offended the requirement of the law as it was not sworn before the authorized person, the Commissioner for oaths, the trial Court was right to have expunged the statement on oath by the DW3. The learned counsel had alleged that the trial Court copiously referred to and made use of the evidence of the DW3 which had been expunged and referred to page 225 of the printed records of appeal. At page 225, the trial Court

reviewed the testimony of the DW2 (Mahmoud Mohammed) and his evidence concerning the DW3 as the farm manager that allegedly gave out portions of the land in dispute to the people he mentioned in his testimony. The trial Court did not utilize the evidence of the DW3, I discountenance the submission. The fifth issue is resolved against the Appellant.

In sum, the appeal succeeds in part having resolved issues 1, 2, 3 and 5 against the Appellant and issue 4 in favour of the appellant. I affirm the decision of the learned trial Chief Judge, Josephine Y. Tuktur, CJ in respect of issues 1, 2, 3 and 5 and set aside the award of general damages of N200,000.00 (Two Hundred Thousand Naira) under issue 4 in Suit No. TRSJ/20/2015 in the judgment delivered on 24th December, 2018.
I award costs of N100,000.00 (One Hundred Thousand Naira) in favour of the Respondent.

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.

My learned brother has dealt exhaustively with the issues for determination. I have nothing more useful to add. I adopt the reasoning and

conclusions reached in judgment of my learned brother as mine.

I too affirm the decision of the Court below on issues 1, 2, 3 and 5 but set aside the award of N200,000.00 (Two Hundred Thousand Naira) damages.
I abide by all other orders in the lead judgment including the order as to costs.

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

Appearances:

Vaatsav, Esq. For Appellant(s)

N. Chia, Esq. For Respondent(s)