DALLATO v. BESSE
(2021)LCN/15153(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 07, 2021
CA/A/706/2014
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
TANKO JAGABA DALLATO APPELANT(S)
And
YAHAYA BESSE RESPONDENT(S)
RATIO
POSITION OF THE LAW ON HOW TO DETERMINE WHETHER OR NOT A LAND IN DISPUTE IS IDENTIFIABLE
The test to determine whether a land is identifiable is whether based on the description given by the parties, a survey will be able to produce a survey plan. In this respect I will make reference to Aiyeola vs Pedro (2014) 13 NWLR (pt 1424). The Apex Court held as follows: “It is also imperative that the identity of the land being claimed is certain. Where there is a dispute as to the identity of the land in dispute, the burden is on the party claiming title to establish the identity by specific and unequivocal evidence as to its boundaries. See: Aremu v. Adetoro (2007) 16 NWLR (Pt.1060) 244; (2007) 7 SC (Pt. II) 1; Odesanya vs. Ewedemi (1962) 1 All NLR 320. This may be done in either of two ways. The claimant may give an oral description of the land sufficient to make it ascertainable. See Aremu v. Adetoro (supra); Awere v. Lasoju (1975) NMLR 100; Idehen vs. Osemwenkhae (1997) 10 NWLR (Pt.525) 358; or he may file a survey plan. A survey plan is not required in every case. Where an oral description is relied upon, the test is whether a surveyor can, from the record, produce an accurate plan of such land. See: Udofia Vs Afia (1940) 6 WACA 24; Kwadzo Vs Adjei (1944) 10 WACA 274.” It is immaterial whether the defendant in a matter for title to land agrees with the name and location of the land that the Plaintiff has put in dispute. See Atanda vs Iliasu (2013) 6 NWLR (pt 1351) 529. PER EBIOWEI TOBI, J.C.A.
POSITION OF THE LAW ON WAYS BY WHICH THE CLAIMANT IN A LAND MATTER MAY DISCHARGE THE BURDEN OF PROOF PLACED ON IT BY LAW
The law is settled beyond any dispute of the five ways of proving title. The judicial authorities are all over the place and indeed I may not need to cite any as it is common place. However, for clarity and completeness I will cite a case or two. In Nwabuoku & Ors vs Onwordi & Ors (2006) 5 S.C. (pt III) 103, the Supreme Court held: “The burden of proof in land matters, though depends on the state of the pleadings, is mainly on the plaintiff, in the first place. It could thereafter move to the defendant, like a circus circle. It is elementary in our property law that he who seeks title to land must prove that title. This burden is firm and it stands unequivocally on the face of the plaintiff, who must discharge it. This burden does not shift one second to the defendant. It is constant on the plaintiff as the sun which rises from the East and sets in the West every day. It is only after the plaintiff has given evidence of title to the land that the defendant leads contrary evidence to expunge the plaintiff’s evidence. In a claim for a declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached. See Odesanya v. Ewedemi (1962) 1 All NLR 320. In Idundun v. Okumagba (1976) 9-10 S.C. (Reprint) 140; (1976) 9-10 SC 227; this Court held that there are five ways in which title or ownership of land could be proved. They are (1) By traditional evidence. (2) By production of documents of title duly authenticated and executed. (3) By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership (4) By acts of possession and enjoyment. (5) 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 also Omoregbe v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41; Mogaji v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263; Okpuruwu v. Chief Okpokam (1988) 4 NWLR (Pt.90) 554. A plaintiff need not prove all the five ways to succeed in an action of title to land. He can succeed if he proves even one of the ways. In other words, the five ways enumerated in Okumagba are not cumulative but concurrent.” PER EBIOWEI TOBI, J.C.A.
WHAT IS REQUIRED OF A CLAIMANT RELYING ON TRADITIONAL HISTORY IN PROVING HIS TITLE TO A LAND IN DISPUTE.
The Appellant relied on tradition history as the way of proving his title to the land in dispute. To succeed in establishing title by traditional history, the law in a whole lot of cases stated what the Plaintiff need to prove. In Anyafulu & Ors vs Meka & Ors (2014) 2 S.C. (pts 1) the apex Court stated this point in these words: “It is trite that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say; he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See HYACINTH ANYANWU V. ROBERT ACHILIKE MBARA & ANOR (1992) 5 SCNJ. 90, IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC 224, ATANDA V. AJANI (1989) 3 NWLR (Pt.III) 511.” PER EBIOWEI TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The appeal before this Court is against the decision of the Niger State High Court in the Minna Judicial Division presided over by Hon. Justice Fati L. Abubakar, Chief Judge in suit No: NSHC/MN/105/2011 – Tanko Jagaba Dallato vs Yahaya Besse. The judgment delivered on 6/2/14 is found on pages 136- 150 of the record. Both the Claimant and the Defendant in the lower Court lay claim to parcel of land situate in Shiroro Local Government. The Claimant (Appellant in this appeal) relied on traditional history in proof of his title to the land which he described to be situated in Shiroro bounded from the West with a stream called Gbeyedna; from the East with Mallam Jemi’s house; from the South with Shiroro Dam and from the North with Yahaya Besse’s land. The Defendant (Respondent in this appeal) in defending the suit at the lower Court filed a counter claim claiming ownership of land situate at Obya village in Shiroro Local Government bounded in the West by the farmland of Guduma Shiroro, towards the south by a stream called Byadua, towards the North by the farmland of
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Aboki. The Defendant also relied on traditional history to prove title. The lower Court after considering all the evidence before it, came to the conclusion that both the Appellant and the Respondent could not prove their respective cases before it. At page 150 of the record (page 15 of the judgment) the lower Court dismisses the cases of both parties in these words:
“In the event, and in view of my findings, I find plaintiff has, on a preponderance of evidence, not proved his claim against the defendant to entitle him to the reliefs he seeks and I dismiss it accordingly.
Similarly, I find defendant has, on preponderance of evidence also not proved his counter-claim against the plaintiff and I dismiss it. Accordingly, suit is hereby dismissed.”
In simple terms, the decision of the lower Court did not favour any of the parties as both the Claimant’s claim and the Defendant’s counter-claim were dismissed. This means both parties could have appealed or one party appeals and the other could file a cross appeal. The Defendant in the lower Court, the Respondent in this appeal did not file a cross appeal or a separate appeal. It
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was only the Appellant that has appealed by filing this appeal. The implication is that this Court cannot consider whether the lower Court was right in dismissing the counter-claim but rather what is in the front burner of this appeal is, whether the lower Court was right in dismissing the claim of the Appellant before it. The major way a party who is not happy with a judgment can ventilate his anger is to file an appeal or a cross appeal when the other party has filed an appeal. The other party to the appeal can also file a Respondent’s notice which in effect is that he agrees with the judgment but on other grounds.
The Respondent did not file any of these and so the dismissal of his counter-claim is not up for consideration in this appeal.
The Appellant’s notice of appeal of 3 grounds is found on pages 151-153 of the record. I reproduce the grounds for ease of reference as follows:
1. The decision of the trial Court is against the weight of evidence.
2. The learned trial judge erred in law and misdirected himself when the Court failed to declare title in favour of the plaintiff despite the cogent and unimpeachable proof of
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title by traditional history.
3. The learned trial judge erred in law when he went out of the parties’ pleadings in resolving an issue submitted for his determination.
The Appellant filed his brief settled by his counsel, E. K. Phillip Esq on 19/3/18. This brief was adopted as the argument of counsel on 16/2/21. In the brief, the Appellant raised 3 issues for determination. The issues are:
1. Whether the learned trial judge properly evaluated the evidence before the Court on an imaginary scale as to know where it tilts.
2. Whether between the Appellant and the Respondent whose traditional history is more cogent, convincing and conclusive in nature as to entitle him to the reliefs sought.
3. Whether the learned trial judge had the jurisdiction to jettison the evidence led before the Court in resolving an issue in respect of which parties have given evidence thereto.
In addressing issue 1, it is the submission of counsel that the lower Court did not properly evaluate the evidence before it since the Court based its decision on so called contradiction which has no nexus with the facts of the case before the Court. The
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contradiction as to whether between Jemi and Galadima Kogo Communities which is superior is a contradiction which has no relevance as to who owes the land in dispute. The evidence of the Appellant in the lower Court should have been accepted by it if the Court properly evaluated the evidence. Counsel referred to Babatunde vs Akinbade (2006) 6 NWLR (pt 975) 44; Okoko vs Dakolo (2006) 14 NWLR (pt 1000) 401; Ukaegbu vs Nwololo (2009) I S.C.N.J. 49.
On issue 2, relying on Archibong vs Edak (2006) 7 NWLR (pt 980); Adebo vs Omisola (2005) 2 NWLR (pt 909) 149; Kojo II vs Bonsie (1957) 1 WLR 1223; Balogun vs Akanji (2005) 10 NWLR (pt 933) 394; Odofin vs Ayoola (1984) 11 SC 72 learned counsel submitted that the Appellant’s story based on traditional history is more believable and so the lower Court should have held in favour of the Appellant.
The Appellant’s counsel submitted that the learned trial judge went outside the pleadings to make the findings it did which occasioned a miscarriage of justice. He urged the Court to allow the appeal.
The Respondent’s brief of 30/1/2020 deemed on 24/11/2020 was settled by J.G. Taidi Esq wherein a
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sole issue was formulated for determination to wit:
Whether the Plaintiff proved his case by credible, reliable and cogent evidence to entitle him to the claim of title to the land?
In addressing this issue, learned counsel stated the trite principle of the law on the burden and standard of proof required in civil cases of this sort. The Appellant, Respondent’s counsel submitted, has the duty to prove its case on the preponderance of evidence depending on the strength of his case and not on the witness of the Respondent’s case. He referred to so many cases including Mogaji vs Odofin (1978) 4 S.C. 65; Kodilinye vs Odu (1935) 2 WACA 336. Learned counsel went on to state the five ways of proving title and how traditional history can be proved. In this respect, counsel referred to a lot of cases including Chief Awara Osu & Ors vs Ibori Igiri & Ors (1988) LPELR-2814 (SC); Osu vs Nwadialo (2008) AlLL FWLR (pt 409) 479; Elewuju & Anor vs Onisaodu & Anor (1999) LPELR-6566.
Learned Counsel to the Respondent submitted that the lower Court was right in holding that the Appellant has not proved traditional history in line with
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the law in the light of the contradictory evidence of the Appellant and so the evidence was properly rejected. The counsel relied on Ezemba vs Ibeneme (2004) 14 NWLR (pt 894) 617; Obiazikwor vs Obiazikwor (2007) ALL FWLR (pt 371) 1602.
It is the final submission of counsel that this sole issue should be resolved in favour of the Respondent.
Exercising the right of reply, the Appellant filed a reply brief wherein he submitted correctly in my view that since the Respondent did not file a cross appeal, he has no locus to urge this Court to resolve the issue of ownership of land in his favour.
The above is the submission of both counsel. I will in resolving this appeal, adopt the issue formulated by the Respondent as it will directly and adequately resolve the real issue in this appeal. For clarity and completeness, I reproduce the Respondent’s issue for determination which I adopt as mine to wit:
Whether the Plaintiff proved his case by credible, reliable and cogent evidence to entitle him to the claim of title to the land?
The reason the lower Court gave for dismissing the case of the Appellant is basically because of the
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inconsistency in the case of the Appellant especially the evidence of PW2 which contradicts the evidence of the other witnesses of the Appellant. The lower Court in page 146 of the record (page 11 of the judgment) held as follows:
“It is a notorious fact that Galadiman Kogo is a district with a District Head as against Jemi which, from evidence, it is established is a village. It is incidentally a fact that PW2 also contradicted himself under cross-examination against his testimony under oath. PW2 under cross-examination admitted reluctantly that the Plaintiff’s father Buzhe migrated from Gusoro and settled at Obya and later settled in a place near Galadiman Kogo called “AJAYI.”
What this means is I find plaintiff’s witnesses are not credible witnesses. This is in face of testimonies of Defendant’s witnesses, all of them, whom said the land in dispute is located at Obya and also the status of Galadiman Kogo over Jemi Shiroro. In addition, Defendant witnesses particularly DW1, 2, 3 and 4 were consistent on the history and manner the plaintiff came into the land in dispute. None of these witnesses testimony was
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impeached.
It follows that the evidence adduced for the defendant is more credible than that adduced for the plaintiff in that regard. Indeed, the traditional evidence he has relied on, I find, has not established ownership of the land in dispute to the plaintiff and I so hold. I resolve issue one in the negative.”
It is true that the evidence of PW2 seem to have some inconsistencies with the evidence of the other witnesses of the Appellant. This is the main reason for the dismissal of the case of the Appellant. I have gone through the evidence of all the parties in the record of appeal, I can say for sure that there are also contradictions in the story of the Respondent’s witnesses as to the location of the land in dispute and the boundaries therein. Since the appeal is not concerned with the counter-claim, I will not go into that. I am in this appeal considering whether the dismissal of the Appellant’s case as Plaintiff in the lower Court was right taking into cognizance the evidence before the lower Court.
The Appellant in the lower Court in paragraph 5 of the Amended Statement of Claim has traced how he came about the land
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in dispute placed before the Court by him. The land the Appellant is claiming title over is lying and situate in Shiroro with boundary as stated in paragraph 4. The land according to the Appellant is situated in Jemi. The Respondent on the other hand says the land he is claiming is in Obya. The implication of this evidence is that the land put in dispute by the Appellant in the statement of claim for which evidence is adduced is situtate in Jemi in Shiroro. The land put in dispute by the Respondent in the counter-claim is situated in Obya. There is evidence that Jemi and Obya are not the same village but they are near each other. The meaning of this is that, what a Court should look at to determine ownership of the land in relation to the claim is whether the land put in dispute by the Appellant can be properly identified and ascertained. I have no difficulty in holding that the land was properly identifiable or ascertained as a surveyor can produce a survey plan based on the description of the land as in paragraphs 4 & 5 of the Amended Statement Claim. The test to determine whether a land is identifiable is whether based on the description given by
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the parties, a survey will be able to produce a survey plan. In this respect I will make reference to Aiyeola vs Pedro (2014) 13 NWLR (pt 1424). The Apex Court held as follows:
“It is also imperative that the identity of the land being claimed is certain. Where there is a dispute as to the identity of the land in dispute, the burden is on the party claiming title to establish the identity by specific and unequivocal evidence as to its boundaries. See: Aremu v. Adetoro (2007) 16 NWLR (Pt.1060) 244; (2007) 7 SC (Pt. II) 1; Odesanya vs. Ewedemi (1962) 1 All NLR 320. This may be done in either of two ways. The claimant may give an oral description of the land sufficient to make it ascertainable. See Aremu v. Adetoro (supra); Awere v. Lasoju (1975) NMLR 100; Idehen vs. Osemwenkhae (1997) 10 NWLR (Pt.525) 358; or he may file a survey plan. A survey plan is not required in every case. Where an oral description is relied upon, the test is whether a surveyor can, from the record, produce an accurate plan of such land. See: Udofia Vs Afia (1940) 6 WACA 24; Kwadzo Vs Adjei (1944) 10 WACA 274.”
It is immaterial whether the defendant in a matter
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for title to land agrees with the name and location of the land that the Plaintiff has put in dispute. See Atanda vs Iliasu (2013) 6 NWLR (pt 1351) 529.
To locate the land, the Appellant put in dispute in the claim, the surveyor will have to go to Shiroro and then to Jemi village and find the land which has the boundaries stated in paragraph 5 of the amended statement of claim. Although the decision of the lower Court is not based on the proper identity of the land but the vexed issue as to whether the land is located in Jemi or Obya has to some extent influenced the decision of the Court. The lower Court was also influenced by the conflicting evidence as to whether Jemi was under Galadaman Kogo or vice versa. The lower Court agreeing with the evidence of the Respondent as Defendant said the land was located in Obya and as a result concluded that the traditional history of the Appellant was not credible.
I have looked at the evidence before the lower Court and with due respect I am unable to agree with the lower Court. The land in dispute put by the Appellant is located in Jemi and in my opinion it is of no moment that the Respondent feels otherwise
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about the location of the land in dispute. I also do not really see the relevance of the contradictory issue that the lower Court placed so much reliance on in the judgment. That issue is whether Jemi is part of Galadiman Kogo or vice versa. It is of no moment as I had earlier stated. The important thing in my view is whether the land the Appellant has put in dispute has been proved by the Appellant as belonging to him by any of the five ways of proving title?
In answering that question, a little excursion into the law as to what the Plaintiff in a case for title to land needs to prove. The law is trite that the Plaintiff claiming title to land will succeed on the preponderance of evidence, that is to say, he will succeed on the balance of probability. This means, the Court will create an imaginary scale of justice and if the evidence of the Plaintiff tilt slightly heavier in the scale than the Respondent’s, the decision will go in his favour. In Ekweozor & Ors vs Reg. Trustees of the Saviour Apostolic Church of Nigeria (2020) LPELR-49568 (SC), the Supreme Court held:
“To untie the puzzle, it needs reiteration that the burden of proof
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in civil cases has two distinct facets; the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case; the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static and never shifting, the other type being evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates. In resolving the first question, the primary onus of proof in a civil case such as the present one lies on the plaintiff who happens to be the now respondent.”
The Appellant will have to depend on the strength of his case and not on the weakness of the Defendant’s case. See Edosa & Anor vs Ogiemwanre (2018) LPELR-46314 (SC)
What the Appellant needed to prove at the lower Court to establish his case is to prove his title by any of the five ways recognized by law which has received so much judicial recognition which has become part of our jurisprudence. The law is settled beyond any dispute of the five ways of proving title. The judicial authorities are all
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over the place and indeed I may not need to cite any as it is common place. However, for clarity and completeness I will cite a case or two. In Nwabuoku & Ors vs Onwordi & Ors (2006) 5 S.C. (pt III) 103, the Supreme Court held:
“The burden of proof in land matters, though depends on the state of the pleadings, is mainly on the plaintiff, in the first place. It could thereafter move to the defendant, like a circus circle. It is elementary in our property law that he who seeks title to land must prove that title. This burden is firm and it stands unequivocally on the face of the plaintiff, who must discharge it. This burden does not shift one second to the defendant. It is constant on the plaintiff as the sun which rises from the East and sets in the West every day. It is only after the plaintiff has given evidence of title to the land that the defendant leads contrary evidence to expunge the plaintiff’s evidence.
In a claim for a declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached. See Odesanya v. Ewedemi (1962) 1 All NLR 320.
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In Idundun v. Okumagba (1976) 9-10 S.C. (Reprint) 140; (1976) 9-10 SC 227; this Court held that there are five ways in which title or ownership of land could be proved. They are (1) By traditional evidence. (2) By production of documents of title duly authenticated and executed. (3) By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership (4) By acts of possession and enjoyment. (5) 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 also Omoregbe v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41; Mogaji v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263; Okpuruwu v. Chief Okpokam (1988) 4 NWLR (Pt.90) 554.
A plaintiff need not prove all the five ways to succeed in an action of title to land. He can succeed if he proves even one of the ways. In other words, the five ways enumerated in Okumagba are not cumulative but concurrent.”
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The Appellant in law is not obliged to prove all the five ways as anyone proved by way of pleading and evidence adduced will be sufficient.
The Appellant relied on tradition history as the way of proving his title to the land in dispute. To succeed in establishing title by traditional history, the law in a whole lot of cases stated what the Plaintiff need to prove. In Anyafulu & Ors vs Meka & Ors (2014) 2 S.C. (pts 1) the apex Court stated this point in these words:
“It is trite that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say; he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See HYACINTH ANYANWU V. ROBERT ACHILIKE MBARA & ANOR (1992) 5 SCNJ. 90, IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC 224, ATANDA V. AJANI (1989) 3
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NWLR (Pt.III) 511.”
The Appellant in paragraph 5 of the amended statement of claim in my opinion has clearly satisfied the requirement of the law in establishing title by traditional history. To buttress this conclusion I have reached, it will not be out of place to look at the law as it relates to how to prove traditional history. To establish traditional history as a way of proving title, the Appellant should plead and give credible evidence as to who founded the land, how it was founded and the intervening owners of the land from the founder to the Appellant. See Addah & Ors vs Ubandawaki (2015) 7 NWLR (pt 1458) 325.
The first two conditions are not difficult to establish but the third has been a challenge to some counsel. In establishing the third condition, it is not just enough to create a family tree or genealogy of the family without connecting same to the land. What is required is for the Plaintiff to trace the ownership of the land from the original owner or founder through all the intervening owners without a break until it gets to the Plaintiff. If there is any break in tracing the ownership as it passes from one person or
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generation to another, the Plaintiff would have failed to prove title by traditional history. Permit me, to make the analogy of a 4 by 100 meter relay race. As we all know, in such a race the baton will move from one person to the other among the 4 persons in the team. If the baton does not follow that pattern, and one person runs the whole race all by itself the team will be disqualified. Similarly, when tracing the intervening owners, if any of them is missing, the plaintiff would have failed to establish his case by traditional history.
Having stated the law, the question now is; what is the evidence before the lower Court? The Appellant in paragraph 5 of the amended statement of claim averred thus:
“5. The Plaintiff states that he inherited the said land from his late father named Dallato Buzhe who himself inherited same from his own father Guyitor (Plaintiff’s grandfather) who also inherited same from his father Nybada (Plaintiff great grandfather) who was the 1st person to settle thereon after deforesting the hitherto virgin land stretching quite over a period of almost 2000 years ago.”
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This pleading must be buttressed by evidence otherwise it will be deemed abandoned.
The Appellant in paragraph 4 of his deposition on oath which was adopted as the evidence of the Appellant in Court repeated the averment in paragraph 5 of the amended statement of claim. This evidence was not discredited under cross-examination. There is no doubt in my mind that the Appellant had discharged the burden placed on him by law to prove his title by traditional history. In the circumstance, I do not agree with the lower Court when it held at page 146 of the record that the Appellant did not establish ownership by traditional history. The holding does not correspond with the evidence adduced before the lower Court. To that extent, the decision of the lower Court cannot stand. I resolve this sole issue in favour of the Appellant.
The Appellant in the notice of appeal prays this Court for the following relief:
1. An order of the Court setting aside the decision of High Court No. 1 Minna dated 6th February, 2014 in its entirety.
2. An order of Court declaring title to the disputed land in the favour of the appellant.
OR
Alternatively, An order of Court for
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the retrial of this suit.
In view of the finding of this Court, it will meet the tenet of Justice to allow this appeal and to grant the reliefs of the Appellant as prayed in the main. In the circumstance, the judgment of Hon. Justice Fati Abubakar, Chief Judge of the Niger State High Court holding in Minna in Suit No. NSHC/MN/105/2011-Tanko Jagaba Dallato vs Yahaya Besse delivered on 6/2/2011 is set aside. Since I have held that the Appellant has proved his title to the land he has put in dispute by credible traditional history which was not discredited by the Respondent, I have no difficulty in declaring title to the land situate in Jemi Shiroro which share boundary from the West with the stream called Gbeyedna; from the East with Mallam Jemi’s house (the ward head of Jemi Shiroro); from the south with Shiroro Dam and from the North with Yahaya Besse’s Land. In simple terms, this appeal succeeds and it is allowed.
I award N100,000 cost in favour of the Appellant against the Respondent.
RITA NOSAKHARE PEMU, J.C.A.: I had read now, the lead judgment just delivered by my brother, EBIOWEI TOBI, JCA.
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I agree with his reasoning and conclusions,
I also allow the appeal and order that the judgment of the High Court of Minna, Niger State, in Suit No, NSHC/MN/105/2011 delivered on the 6th of February 2011 be and is hereby set aside.
I abide by the consequential order made as to costs.
HAMMA AKAWU BARKA, J.C.A.: My learned brother EBIOWEI TOBI JCA obliged me with a copy of the judgment just delivered in draft before now.
I agree that where the plaintiff by his pleadings and evidence adduced, establishes with clarity his right to a defined and ascertainable parcel of land, using any of the five established means of proving title, judgment should be entered in his favour. It does not matter the name ascribed to the said parcel of land or the area the land is situated. Having therefore established by traditional history his entitlement to the land in dispute, the lower Court erred in dispossessing him of his right to the land.
I agree that the appeal succeeds and it is also allowed by me. The judgment of Fati Abubakar J. of the High Court of Justice, Niger State in Suit No. NSHC/MN/105/2011 delivered
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on the 6th of February, 2014 be and is hereby set aside, and in its place I enter judgment for the appellant.
The award of N100,000 costs to the appellant is also agreeable to me.
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Appearances:
Philip K. Emmanuel with him, Denem S. Orkar, U. F. Okane and Abraham Favour For Appellant(s)
G. Taidi with him, A. S. Akaah For Respondent(s)
