BULUS BELLO HAMMAN & ORS v. YAKUBU PUR & ANOR
(2018)LCN/12141(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of November, 2018
CA/J/354B/2017
RATIO
EVIDENCE: WAYS TO PROVE TITLE TO LAND
“A party who relies on act of possession and ownership must establish that such acts not only extended over a sufficient length of time, but also that they are positive enough to warrant the inference of exclusive ownership of such land – Idundun Vs. Okumagba (1976) 9-10 SC 227; Onwugbufor Vs. Okoye (1996)1 NWLR (Pt. 424) 252 and Awodi Vs. Ajagbe (2015)3 NWLR (Pt. 1447) 578 at 584. The five different ways of proving ownership of any land in dispute or title to land are: (a) By traditional evidence; or (b) By production of duly authenticated documents of title unless they are documents twenty years old or more that are produced from proper custody; or (c) By acts of possession in and over the land in dispute extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person thus in possession is the true owner; or (d) By acts of long possession and enjoyment of other land situated and connected with the land in dispute by locality or similarity that the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land; or (e) By 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. See Gbemisola Vs. Bolarinwa (2014)9 NWLR (Pt. 1411) 1 at 7-8; Adewuyi Vs. Odukwe (2005)14 NWLR (Pt. 945) 473 and Makanjuola Vs. Balogun (1996)1 NWLR (Pt. 424) 252 and Awodi Vs. Ajagbe (2015)3 NWLR (Pt. 1989)3 NWLR (Pt. 108)192.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. BULUS BELLO HAMMAN
2. ABDULLAHI HAMMAN
3. JOHN PAUL MANGA Appellant(s)
AND
1. YAKUBU PUR
2. ISHAYA PUR Respondent(s)
TANI YUSUF HASSAN, J.C.A.(Delivering the Leading Judgment):
This appeal has arisen from the judgment of the Borno State High Court of Justice Maiduguri, delivered on the 20th day of March, 2014 in Appeal No.BOHC/G2/CVA/18/2011, wherein the Court set aside the judgment of the Upper Sharia Court Askira given in favour of the appellants.
At Sharia Court I, Uba, the respondents as plaintiffs therein, filed a suit and claimed ownership of a piece of land lying and situate at Kinju/Mulgula Area in Uba, of Askira Uba Local Government against the appellants herein. The plaintiffs/respondents called three witnesses and stated that it was their father who originally founded the land and was farming on the disputed land until his death. Upon the death of their father they inherited the farmland. The appellants also claimed it was their grandfather Hamman that founded the land. After trial, the trial Sharia Court found in favour of the plaintiffs/respondents. The appellants disagreed and so appealed to the Upper Sharia Court Askira. The Court set aside the judgment of the trial Court and found for the defendants/appellants.
The plaintiffs/respondents then appealed to the Borno State High Court of Justice Maiduguri, which set aside the judgment of the Upper Sharia Court, and found for the plaintiffs/respondents. The defendants/appellants were not satisfied and they have now appealed to this Court.
The Notice of Appeal dated 9th June, 2017 was filed on the 12th of June, 2017. The Notice of Appeal contains three grounds with their particulars ad reliefs sought.
The grounds shorn of their particulars are:
GROUND ONE
The learned judges erred when they held that evidence adduced by the respondents at the trial Court met up with the requirement of proof of declaration of title to land.
GROUND TWO
The learned judges erred when they entered judgment for the respondents, when issues upon which they predicated their judgment did not emanate from any valid ground of appeal filed.
GROUND THREE
The judgment is against the weight of evidence.
Both parties filed, exchanged and adopted their briefs of argument.
Mr. Nankham Ayuba Dammo settled the brief of the appellants, dated 18th day of November, 2017 and filed on 28th November, 2017.
Therein the following issues were distilled:
1. Whether the lower Court was right when it made pronouncement entering judgment for the respondents upon issues that were incompetent not having emanated from any valid ground of appeal.? (Ground 2)
2. Whether the lower Court was right when it held that the respondents were entitled to the land in dispute.? (Grounds 1 & 3)
The respondents’ brief dated 22nd day of May, 2018 was filed on the 25th day of May, 2018 and deemed properly filed on 28th May, 2018. The respondents’ counsel Muhammad Umaru Esq., adopted the two issues formulated by the appellants.
I am guided by the issues formulated by the appellants in resolving this appeal.
ISSUE ONE
Whether the lower Court was right when it made pronouncement entering judgment for the respondents upon issues that were incompetent not having emanated from any valid ground of appeal.?
Learned counsel for the appellants criticised the lower Court’s finding when he said it held in its judgment thus:
‘There is no ground in the notice of appeal challenging specifically that aspect of the judgment under appeal’, but went ahead to hear and determine the appeal setting aside the decision of the Upper Sharia Court not appealed against.
The contention of the appellants is that the respondents in their appeal at the lower Court raised several grounds of appeal from which they purported to formulate the single issue for determination of the lower Court. It is submitted that the law is that issue for determination in appeals must emanate from a valid ground of appeal. Relying on this submission, the Court was referred to the cases of Ibator Vs. Barakuro (2007) 9 NWLR (Pt. 1040) 475 at 503; Nigeria Custom Service Vs. Bazuaye (2006) 3 NWLR (Pt. 967) 303 at 321 and Delta State Vs. Ogogo (2006)2 NWLR (Pt. 964) 383.
That where issues formulated do not emanate from or are not predicated upon valid grounds of appeal, such issues are incompetent and should be discountenanced by the court – U.P.S. Ltd. Vs. Ufot (2006)2 NWLR (Pt. 963) 1 at 19-20 and S.P.D.C.N Ltd. Vs. Goodluck (2008)14 NWLR (Pt. 1107) 294 AT 307.
Also relying on the cases of Saude Vs. Abdullahi (1989) 4 NWLR (Pt. 116) 387 and Obpeji Vs. Minister of Agriculture (1997) 9 NWLR (Pt. 522) 693, appellants’ counsel submitted that, the law is that a ground of appeal must attack the ratio decidendi of the decision appealed against. That the grounds of appeal in the lower Court challenged the decision of the Upper Sharia Court Askira and the issues formulated therefrom, did not attack the ratio decidendi of the judgment of the Upper Sharia Court.
Submitting further, that the trial Court having found that the issue formulated by the respondent did not arise or attack the findings of the Upper Sharia Court, was in grave error when it proceeded to make pronouncement entering judgment for the respondents.
We are urged to resolve in favour of the appellants.
Learned counsel for the respondents submitted in response that contrary to the submission of the learned counsel for the appellants, the lower Court at page 76 lines 15-17 of the record held:
“That part of the judgment is also under challenge and this Court can effectively pronounce on it”, based on which finding the lower Court went ahead to hear and determined the appeal setting aside the decision of the Upper Sharia Court Askira, appealed against.
It is his submission that the respondents raised two grounds of appeal at the lower Court and from which a single issue was formulated for determination of the lower Court. That the record will show that the two grounds of appeal challenged the decision of the Upper Sharia Court and the sole issue distilled therefrom did attack the ratio decidendi of the judgment of the Upper Sharia Court, Askira. It is argued that the lower Court was right when it entertained the appeal, set aside the decision of the Upper Sharia Court and restored the judgment of the trial Court given in favour of the respondents. We are urged to resolve in favour of the respondents.
The contention of the appellants’ counsel is that the respondents raised several grounds of appeal from which a single issue was formulated for determination of the appeal. That the issue so distilled did not emanate from the decision of the trial Court. It is necessary to point out at this stage that the submission of the appellants counsel is misleading. This is because as rightly submitted by the respondents’ counsel, their notice of appeal in the Borno State High Court Maiduguri contained only two grounds from which an issue was formulated. This is so reflected at page 1 of the record of appeal. For clarity the grounds of appeal read:
GROUND ONE
The Upper Sharia Court, Askira erred in law in allowing the appeal of the defendants/respondents and dismissing the case of the plaintiffs/appellants.
PARTICULARS OF ERROR
(a) The plaintiffs/appellants having proved their title to the land in dispute as required by law.
(b) The plaintiffs/appellants having proved their title to the land, the Upper Sharia Court erred in law to have reversed the judgment of the trial Court.
GROUND TWO
The decision is against the weight of evidence.
Order 7 Rule 2(2) of the Court of Appeal Rules, 2016 provides:
“Where a ground of appeal alleged misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
In the instant case, the particulars and the nature of error are so clearly stated which make the ground competent having complied with the mandatory provision of Order 7 Rule 2(2) of the Court of Appeal Rules.
The Supreme Court in Bhojsons Plc. Vs Daniel Kalio (2006)5 NWLR (Pt. 1973) 330 at 355 para E-G explained that:
“Grounds of appeal are complaints of appellant on the judgment appealed against. They are the pillars on which the entire appeal stands and an appellate Court cannot go outside them in search of greener pasture for any of the parties.”
The Supreme Court, also in Ifaramoye Vs. State (2017) 8 NWLR (Pt. 1568) 457 at 461 held that a ground of appeal is the totality of the reasons why a decision that is complained of by a party is considered wrong; and the purpose of particulars is to advance reasons why a decision that is complained of by a party is considered wrong. See also Bankole Vs. Agbaje (1960)1 SCNLR 340.
Ground 2 is an omnibus ground.
An Omnibus ground is a general ground of appeal in either civil or criminal appeal. In civil appeal, it postulates that there was no evidence which if accepted would support the finding of the trial Court or the inference which is made. It always has to do with evidence led and evaluation thereof by the trial Court – Per I.T. Muhammed JSC in Lagga Vs. Sarhuna (2008)16 NWLR (Pt. 1114) 427.
The phrase in couching an omnibus ground in civil appeal is weight of evidence. This is because civil matters are decided on the balance of probability and the trial Court is obliged to weigh the evidence on the one side against the evidence on the other side. The Court looks at its imaginary scale to find out which evidence weighs the other. It is the weight of evidence on each side that determines the Court’s decision.
Suffice it to say however that where omnibus ground of appeal is raised to wit that the judgment is against the weight of evidence, the appellant is in fact complaining against the totality of the evidence adduced.
The Supreme Court in Abubakar Vs. Dankwambo (2015)18 NWLR (Pt. 1491) 213 at 218 – 219 held that an omnibus ground of appeal is competent and valid a notice of appeal before a Court. Although the appellants complaint was on the incompetency of the grounds, but counsel did not proffer argument in this regard, and the finding of the trial Court he attacked did not arise from the judgment.
Issue One is resolved against the appellants and in favour of the respondents.
ISSUE TWO
Whether the lower Court was right when it held that the respondents were entitled to the land in dispute.?
Learned counsel for the appellant referred to the judgment of the lower Court held thus:
“Evidence abound that Pur was the founder of the land in dispute and the appellants family has been in possession for a period of 49 years”, submitted that the lower Court still went ahead to set aside the decision of the Upper Sharia Court.
In contending that the plaintiffs/respondents’ claim before the trial Sharia Court was predicated upon the alleged facts that one Pur, their benefactor founded and farmed on the disputed land, appellant’s counsel said evidence adduced by the respondents did not show how the said Pur purportedly first cleared and farmed on the land as required by the five accepted ways of proving title to land. The Court was referred to the cases of Idundun Vs. Okumagba (1976)1 NWLR (Pt. 200) 210-211; Odunze Vs. Nwosu (2007)13 NWLR (Pt. 1050) 36-37 and Gbadamosi Vs. Okege (2011)3 NWLR (Pt. 1233) 175 at 195.
It is submitted that, the respondents did not lead credible evidence as to when and how the said Pur purportedly first cleared and farmed on the land. That the assertion of ‘about 40 years’ does not meet the requirement of proof of the time when the land was founded. It is also submitted that the respondents must lead evidence to show by what custom, the circumstances of the clearing of the land and farming on same conferred title on the respondents’ benefactor. That custom being a matter of fact must also be pleaded and proved – Alfa Issah Alcano Vs. Ilorin Emirate Council & Ors. (2001) FWLR (Pt. 42) 59 at 76 and Sunday Temile & Ors. Vs. Jide Ebigbeyi Awani (2001) FWLR (Pt. 62) 1937 at 1954.
Learned counsel for the appellant argued that, the respondents in relying on traditional history in proof of their claim for title to the disputed land did not lead credible evidence to establish the particular custom that conferred title to their forbearer Pur. That the trial Court erred in entering judgment for the respondent relying on traditional evidence. We are urged to resolve in favour of the appellants and set aside the decision of the lower Court.
For his part, learned counsel for the respondents in response to the judgment of the lower Court referred to by the appellants’ counsel quoted above, respondents counsel clarified that the lower Court in disagreeing with the submission of the respondents/appellants held thus:
“Evidence abound that Pur was the founder of the land in dispute and the appellants, (The respondents herein Yakubu Pur and Ishaya Pur) family has been in possession for a period of 40 years is enough evidence of traditional history in the circumstances of this case.”
The Court was referred to page 80 lines 12-17 of the record, and the testimonies of PW1 at page 4 lines 24-25 and testimony of DW3 at page 16 lines 20-21 of the record.
We are urged to resolve in favour of the respondents.
It is also noted here that the appellants counsel in another attempt to mislead the Court tried to show that the appellants referred to by the lower Court at page 80 of the record in its judgment, means the appellants in this appeal which is not the case. Common sense dictates that since it is the respondents herein that appealed to the lower Court, reference to the appellants by the lower Court automatically means the respondents herein.
Counsel owe a duty as a minister in the temple of justice to assist the Court but not to mislead.
From the record, there is no doubt, that both parties relied on traditional history to lay claim to the area of land that is in dispute. The crux of the matter is, who amongst the parties, led cogent evidence of traditional history worth believing and acting upon by the Court?
Learned counsel for the appellants submitted that the respondents version of traditional history that it was one Pur that first founded the land and farmed on it cannot be accepted since they did not lead credible evidence as to when and how the said Pur cleared and farmed on the land about 40 years ago. The appellants have however, not submitted that they had led traditional history and had led evidence as to who founded the land.
On the other hand, counsel for the respondents submitted that the respondents had adduced evidence of traditional history which the Court accepted and conferred title on the respondents.
Although the parties held themselves out to rely on both traditional history and acts of ownership and possession as found by the trial Sharia Court, the Upper Sharia Court and the Appellate High Court.
As there was no pleadings, it cannot be said that each relied on traditional history. I am of the view that having failed to prove their title via traditional history, but were only able to prove through ownership and possession, it was proper and just to make the order as the trial Court made. After all a party needs only one of the five methods to prove his title to any disputed land. This is because in a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following:
(a) The person who founded the land and exercised acts of possession;
(b) How the land was founded; and
(c) The persons on whom the title to the land devolved from its founder to the plaintiff – Awodi Vs. Ajagbe (2015) 3 NWLR (Pt. 1447) 578 at 584.
This, the parties did not establish in this case.
A party who relies on act of possession and ownership must establish that such acts not only extended over a sufficient length of time, but also that they are positive enough to warrant the inference of exclusive ownership of such land – Idundun Vs. Okumagba (1976) 9-10 SC 227; Onwugbufor Vs. Okoye (1996)1 NWLR (Pt. 424) 252 and Awodi Vs. Ajagbe (2015)3 NWLR (Pt. 1447) 578 at 584.
The five different ways of proving ownership of any land in dispute or title to land are:
(a) By traditional evidence; or
(b) By production of duly authenticated documents of title unless they are documents twenty years old or more that are produced from proper custody; or
(c) By acts of possession in and over the land in dispute extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person thus in possession is the true owner; or
(d) By acts of long possession and enjoyment of other land situated and connected with the land in dispute by locality or similarity that the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land; or
(e) By 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.
See Gbemisola Vs. Bolarinwa (2014)9 NWLR (Pt. 1411) 1 at 7-8; Adewuyi Vs. Odukwe (2005)14 NWLR (Pt. 945) 473 and Makanjuola Vs. Balogun (1996)1 NWLR (Pt. 424) 252 and Awodi Vs. Ajagbe (2015)3 NWLR (Pt. 1989)3 NWLR (Pt. 108)192.
It is well established principle of law that in a claim for title to land, as it is in the case at hand, the onus is on the plaintiffs to prove their claim on the strength of their case and not to rely on the weakness of the defence – Kodilinye Vs. Odu (1935)2 WACA 336 and Onovo Vs. Mba (2014)14 NWLR (Pt. 1427) 391 at 400.
The proof therefore is a matter of evidence. PW1, 83 year old Thlafa Yidamu said in his evidence-in-chief before the trial Court that the land in dispute is situated at Kinju up to Mbulkuthu. He testified that the land was a forest when Pur cleared it and started to farm on it. After the death of Pur, his children inherited the land and continued farming on the land. It is his evidence that he shared boundary with the disputed land by the north. Under cross-examination, he admitted that apart from Pur and his children, there was nobody farming on the land. He denied seeing Hamman and his children farming on the land. PW2, the 1st respondent in this appeal, testified that he inherited the land in dispute with his younger brother Ishaya Pur (2nd respondent) upon the demise of their father Pur. He said it was their father Pur who first cleared the land in dispute and farmed on it. He shared boundary by the west with Yagawa and John Paul, by the east with Yusuf Zigau and Sabo Mashina, by the north with Thlafa (PW1) and from the south is a road Alathur Akbar. It is also his evidence that he started farming on the land at the age of 7 years and his late father told him that he was the one who cleared the land.
It is also the evidence of PW2 that when he saw the 1st appellant, his maternal uncle on the disputed land, he asked him and Bulus the 1st appellant said he was in the farm looking for food. He allowed him, but when the 1st appellant and others started to claim the farmland, he instituted an action against them.
Under cross-examination, PW2 said he farmed on the disputed land for many years, for a period of about 48 years. He confirmed that his father told him that he was the one who cleared the land in dispute. He confirmed he farmed on the land with his father and there was no dispute, before now.
PW3, 68 years Yusuf Zigau testified to the effect that he is the respondents’ neighbour on the farm for about 50 years. He said it was the respondents father Pur that he met farming on the land in dispute, as he shared boundary with him. From the west is Mashi and Musa, Nyagawa from the east and John Paul and Thlafa are also neighbors. He said the farmland is between Kinju and Mbulkuthu and there is a road leading to Damaska by the left hand side of the farm.
DW1, 51 years old Baba Musa in his evidence-in-chief said the land in dispute is situated at Kagaduma at Damaska and that it was his father and the appellants? father that farmed together on the land in dispute. It is his evidence that his farmland shared boundary with the farmland in dispute. He said he met the 1st appellant farming on the farm land with his father. He said it was Hamman the 1st appellant’s father that first cleared the farmland. He denied seeing the 1st respondent and his wife farming on the land.
Under cross-examination he admitted he knows the farmland for about 34 years but before 34 years he did not know the owner of the farmland. He said the 1st appellant inherited the farmland from his father.
DW2, 62 year old Achina Kadala described the land as situated at Duma and owned by the 1st appellant Bulus Bello. His evidence is that, his father told him that the land was originally owned by Bello, the 1st appellant’s father but he does not know who first cleared the farmland. He said the 1st appellant inherited the farmland from his father and he has been farming on the farm land. He denied seeing Pur or Yakubu Pur (1st respondent) farming on the land. It is his evidence that he is a neighbour to the 1st appellant on the land in dispute and has been farming on the land for about 48 years.
Under cross-examination, he said he farmed on the land for about 28 years. The evidence of DW3 under cross-examination confirmed that, about 40 years ago, it was Pur that was farming on the land in dispute.
DW4, 76 year old Bulama Magaji also described the land as situated in Kagaduma and that it was his grandfather Thlafa that first cleared the land. He said he farmed together with the 1st appellant’s father on the land.
Under cross-examination, he said the farmland in dispute belongs to him, having inherited same.
He said the 1st and 3rd appellants were farming on the farmland because they are among the inheritors.
Judging from the evidence adduced before the trial Court supra, it is evident that the Court having evaluated the testimonies of the witnesses, the evidence in support of acts of ownership put forward by the plaintiff/respondents was rightly accepted by the trial Court. The lower Court I hold cannot also be faulted in setting aside the judgment of the Upper Sharia?s Court Askira and restoring the decision of the trial Court.
There is uncontroverted evidence from the 1st respondent that he has been farming on the farmland for about 48 years when the appellants entered the farmland and claimed that the land in dispute belongs to their father. Since it was the appellants that entered the farmland, it shows that it was the respondents that were exercising acts of possession and therefore their version is more probable than that of the appellants.
In Onyekaonwu Vs. Ekwubiri (1966)1 ALL NLR 324, the Court held that once a claimant to declaration of title has discharged the primary onus of acts of possession, he has established a prima facie case that he is the owner of the land and thereupon throws the burden of disprove on the defendant. In the instant case, the appellants have failed to disprove.
A plaintiff claiming title to a particular piece of land does not need to prove all the five methods stated above to establish his claim. It is sufficient if only one of the five ways is proved. See Peter Ojoh Vs. Owuala Kamalu (2005)12 SCM 332 and Onovo Vs. Mba (2014)14 NWLR (Pt. 1427) 391.
The trial Court in addition to accepting the evidence of the respondents relating to act of possession, also found that the respondents have proved by evidence that they are the owners of the land in dispute. Both lower Courts in my view cannot in any way be faulted but acted in the right direction. The evidence PW1, PW2 and PW3 is consistent and was not discredited under cross-examination, on the other hand the evidence of appellants has no probative value. It is contradictory and discredited under cross-examination.
It is not the practice of the appellate Court to interfere with the findings of the lower Court, unless the appellants are able to show that the findings are perverse, that there has been a miscarriage of justice or some other violation of some principles of law or procedure. See Akpang Vs. Amiye (2015)18 NWLR (Pt. 1490) 148 at 153; Osolu Vs. Osolu (2003)11 NWLR (Pt. 832) 608 and Gbemisola Vs. Bolarinwa (2014)9 NWLR (Pt. 1411)1 SC.
It is clear to us, that the findings of the trial Court restored by the Court below are supported by the totality of the evidence adduced before it. They are not perverse. There is no reason to tamper with the findings. From the evidence adduced by both parties, the respondents have discharged the legal burden on them, and are therefore entitled to judgment.
Issue 2 is resolved in favour of the respondents.
This appeal lacks merit and it is dismissed. The judgment of the High Court Maiduguri, Borno State in Appeal No.BOHC/G2/CVA/18/2011 delivered on the 20th day of March, 2014 by Hon. Justice C.A. Mamza is affirmed. N50,000.00 costs to each of the respondents.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Tani Yusuf Hassan, JCA. His Lordship has ably Considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
The appeal arose out of a land dispute. The matter was commenced in the Sharia Court 1, Uba (hereinafter called the trial Court) by the Respondents, as plaintiffs, against the Appellants, as defendants, claiming ownership of a parcel of land lying and situate at Kinju/Mulgula Area of Uba in the Askira Uba Local Government Area. The matter proceeded to trial with the Respondents calling three witnesses and the Appellants calling four witnesses and the records of appeal show that trial Court also visited the locus in quo in the company of the parties. At the conclusion of trial and after the rendering of final addresses by Counsel to the parties, the trial Court found in favour of the Respondents. The trial Court stated in its deliberations thus:
“‘Both counsel have addressed the Court, the Court have carefully make analysis of the address of both counsel. The plaintiff claiming the land in dispute, they are bound by their pleading as per their particulars of claim dated and filed 19/1/2009, wherein the defendants deny all the claim but did not file any particulars of defence. Both sides are claiming the land under traditional history, the plaintiff to success must proof as per their pleading.
PW I Thlafa Yidamu 83 years, PW2 Yakubu Pur 56 years and PVV3 Yusuf Zigam 68 years told the Court that pur was the founder of the disputed land, farmed it for many years upon his death and the plaintiff inherited the land, also farmed it.
On the other hand, the defendants have given two contradictory versions as to the founder ofthe land in dispute. DWI Baba Musa 51 and DVV2 Achina Kadala 62 years said it was Hamidu who founded the land. DW3 Usman Ali 63 years and Bulama Magaji 76 years said Duma was the founder of the land…
On the second arm of contradiction DW3 Usman Ali told the Court that pur, father of the plaintiff, had farmed on the land but on loan, on the other hand DWI, DW2 and DW4 said Pur and his family never farmed on the land.
These contradictions sum up the case of the plaintiff that they have a better title than the defendants.”
The Appellants were dissatisfied with the judgment of the Sharia Court and they appealed to the Upper Shalia Court in Askira.
The Upper Sharia Court took arguments on the appeal and it set aside the judgment of the trial Court. The basis for the decision of the Upper Sharia Court was not clear from the judgment delivered and the Court only made some unintelligible remarks on boundaries and location of farmland in setting aside the judgment of the trial Court. The Upper Sharia Court did not say anything about the findings made by the trial Court On the credibility of the evidence of traditional histories led by the parties and did not touch those findings.
The Respondent appealed against the judgment of the Upper Sharia Court to the High Court Of Borno State, sitting in its appellate jurisdiction, (hereinafter called the lower Court). The lower Court allowed the appeal and it set aside the judgment of the Upper Sharia Court and restored the judgment of the trial Court. In the judgment, the lower Court quoted the findings made by both the trial Court and the Upper Sharia Court and continued thus:
“We have taken the pain to copiously quote the two judgments in verbatim because the appeal before us is largely bordered on evaluation of evidence by the two Courts.
Clearly from the quoted conclusion of the Court below…., the Court below did not decide the appeal before it based on the grounds of appeal argued before it. There was completely no mention of any of the grounds argued by the Respondents as Appellants before the Court below. We could not appreciate the evaluation of the evidence by the Court below. As can be seen from the above quoted relevant portion of the judgment of the Court below, the evaluation of the evidence was to say the least unintelligible and clumsy.
Civil cases are decided on preponderance of evidence. The trial Court reasonably evaluated the evidence before it and applied the appropriate law before arriving at the conclusion reached based on the preponderance of evidence. The process of arriving at the conclusion by the trial Court is not only transparent but verifiable by its printed record of proceedings. Therefore we are in agreement…. that the Court
below wrongly interfered with the judgment of the trial Court on the grounds it did…
Counsel to the Respondents argued that the evidence adduced by the Appellants at the trial Court did not meet up the requirement of proof for declaration of title to land. We do not agree on this. Evidence abound that Pur was the founder of the land in dispute and the Appellants family has been in possession for a period of 40 years. This is enough evidence of traditional history in the circumstances of this case.”
The Appellants have approached this Court and have requested it to set aside the finding of the lower Court that Respondents led sufficient evidence to sustain their claim of the ownership of the land. This request is an appeal to this Court to re-evaluate the evidence led by the parties before the trial Court.
The law on the evaluation and re-evaluation of evidence led at trial by an appellate Court is set and settled. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then Come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Akinloye Vs Eyiyola (1968) NMLR 92 at 93, Obisanya Vs Nwoko (1974) 6 SC 69 at 80, Woluchem Vs Gudi (1981) 5 SC 291 at 326, Ajibulu Vs Ajayi (2014) 2 NWT,R (Pt. 1392) 483.
Where an appellant desire an appellate Court to interfere with the evaluation of evidence carried out by the lower Court and to re-evaluate the evidence and hold that decision of the lower Court is incorrect, as the Appellants want in the instant case, he must show a compelling and cogent reason there for. In other words, an appellate Court will only embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Njoku Vs Eme (1973) 5 SC 293 at 306, Kale vs Coker (1982) 12 SC 252 at 371, Oke vs Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332 at 397-398, Gundiri Vs Nyako (2014) 2 NWLR (Pt. 1391) 211, Busari Vs state (2015) 5 NWLR (Pt 1452) 343 at 373.
This is particularly more so where the findings sought to be disturbed are concurrent findings of two lower Courts, as in this case – the trial Court and the lower Court. An appellate Court cannot tamper with, or interfere with, or overturn concurrent findings of two lower Courts unless exceptional circumstances are presented by the appellant to justify the interference – Kazeem Vs Mosaku (2007) 17 NWLR (Pt 1064) 523, Ogundalu vs Macjob (2015) 8 NWLR (Pt. 1460) 96, Ali vs state (2015) 10 NWLR (Pt. 1466) 1, Iliyasu vs State (2015) 11 NWLR (Pt. 1469) 26. In Fabiyi vs State (2015) 18 NWLR (Pt. 1490) 80, the Supreme Court made the point thus:
‘An appeal which challenges the concurrent findings of fact by a trial Court and the Court of Appeal will be allowed by the Supreme Court only where such findings are shown to be manifestly perverse. The appeal would succeed if the appellant establishes that the findings he attacks neither drew from the evidence on record nor were in compliance with known principles of law or procedure and had also occasioned injustice. Thus, concurrent judgments of two lower Courts will not ordinarily be interfered with unless the appellant adduces a cogent reason to do so.”
The question that arises is – whether the Appellants have presented this Court with exceptional circumstances to warrant its interfering with the concurrent findings of trial Court and the lower Court?
Reading through the brief of arguments of the Counsel to the Appellants, all the Counsel did was to repeat the same arguments canvassed before the lower Court, and he made no attempt to attack the findings made by the lower Court on the said arguments. The law is that it is not enough for an appellant to go before an appellate Court to repeat the case he presented before the lower Court with the hope that the appellate Court will come to different decision; he must attack the findings of fact made by the lower Court – Uor Vs Loko (1988) 2 NWLR (Pt. 77) 430 at 441, Onyejekwe Vs Onyejekwe (1999) 3 NWLR (Pt 596) 482 at 500-501, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538 at 551, Awudu vs Daniel (2005) 2 NWLR (Pt 909) 199 at 231, Ojeleye Vs The Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2008) 15 NWLR (Pt. 1111) 520 at 543. In Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt. 1575) 92 at 112 C-E the Supreme Court made the point thus:
“Learned Counsel submits further that when a decision is perverse, the appellate Court can intervene in the interest of justice and set it aside. That undoubtedly is the law….. It is however not enough for a party to assert that the judgment of a law law. Court which enjoys the presumption of regularity by dint of Section 150 Evidence Act 1990 (now Section 168 Evidence Act 2011) is perverse. He must show how the decision is perverse. The basic rule is, he who asserts must prove.”
The Appellants failed to show how the decision of the lower Court is perverse and this Court thus has no business tampering with the judgment of the lower Court.
It is for these reasons and the fuller exposition of the law in the lead judgment that I agree that there is no merit in this appeal. I too dismiss the appeal and affirm the judgment of the High Court of Borno State in Suit No BOHC/GZ/CVA/18/2011 delivered on the 20th of March, 2014 by Honorable Justices C. A. Mamza and H. Y. Mshelia. I abide by the order on Costs in the lead judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I had read in advance the lead judgment of my learned brother Tani Yusuf Hassan, J.C.A., and I share my Lord’s views on the appeal. I also find the appeal unmeritorious and hereby dismiss it. I equally abide my Lord’s orders regarding costs.
Appearances:
N.A. Dammo with him, H.A. Umar For Appellant(s)
T.A. LenkatFor Respondent(s)
