DANJUMA v. ANGYU (2021)

DANJUMA v. ANGYU

(2021)LCN/15028(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, February 05, 2021

CA/YL/107/18

RATIO

LAND LAW: STANDARD OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is trite law that in an action for declaration of title to land, the plaintiff succeeds on the strength of his case and not on the weakness of the defence and in some cases where the case of the defence supports that of the plaintiff such would constitute evidence in support of the adversary’s case, such facts must be pleaded. PER CHIDI NWAOMA UWA, J.C.A.

RELIEFS: REQUIREMENT FOR THE GRANT OF DECLARATORY RELIEFS

Declaratory reliefs are granted where the plaintiff is entitled to the reliefs, therefore the plaintiff must plead and prove his claim to be entitled to judgment, it is also not granted as a matter of course. See, ALAO VS. AKANO & ORS (2005) LPELR – 409 (SC) PP. 9 – 10, PARAS. C – D, YIROM VS. RIKAINYANGBE & ANOR (2018) LPELR – 44480 (CA) P. 17, PARAS. B – F and CHUKWUMAH VS. S.P.D.C. (NIG) LTD (1993) LPELR – 864 SC, PAGES 64 – 65. PER CHIDI NWAOMA UWA, J.C.A.

EVIDENCE: EFFECT OF ADMITTED FACTS

It is the law that facts admitted do not need further proof. See, SUNDAY OFFOR & ANOR VS. THE STATE (2012) LPELR – 19658 (SC) P. 31, PARA. A; SOLANA VS. OLUSANYA & ORS (1975) LPELR – 3097 (SC) P. 10, PARAS. A – B and OLIYIDE & SONS LTD VS. OAU, ILE – IFE (2018) LPELR – 43711 (SC) P. 9, PARAS. A – B. PER CHIDI NWAOMA UWA, J.C.A.

LAND LAW: HOW IS CUSTOMARY GIFT OF LAND PROVEN

The law is that a customary gift of land must be backed up by the evidence of witnesses. PER CHIDI NWAOMA UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

BULUS MATHIAS DANJUMA APPELANT(S)

And

ADAMU ANGYU RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The High Court of Taraba State in its judgment delivered on 19th April, 2018 by I.M. Sambo, J. dismissed the case of the plaintiff, now Appellant.

The background facts are that by his writ of summons dated 20th December, 2011, filed on 17th January, 2012, the Appellant commenced the suit that led to this appeal against the respondent as defendant.

The reliefs sought at the trial Court were as follows:
(a) “A DECLARATION of title to the piece of land measuring about 15 Hectares lying and situate at Soyoyo site within the Wukari Urban Designated Area.
(b) A DECLARATION that the defendant by encroaching into the said piece of land committed trespass.
(c) A DECLARATION that the purported sale (if any) of part of the land to whoever is null, void and of no effect whatsoever.
(d) AN ORDER of injunction restraining the defendant by himself or through his agents, privies or whoever from further act of trespass on the disputed land pending the determination of this suit.
(e) The sum of N5,000,000.00 as damages for trespass.

(f) The sum of N500,000.00 for cost of filing and prosecuting this suit.”

The Appellant’s root of title to the land in dispute was premised on traditional history of gift from one Aji – Jebu, who also got same as a gift from one Ali Audu. The Appellant also relied on the Certified True Copies (CTC) of the records of proceedings of an Area Court and the (CTC) of the judgment of the trial Court, in respect of a portion of the Appellant’s land in favour of the party who was a witness (Solomon Adi) who derived his title from the Appellant. The documents were tendered and admitted in evidence as Exhibits ‘A’ and ‘A1’ respectively; pages 29 – 52 of the printed records of appeal. The Appellant made out that a witness to the gift of the land (Agya Shishi) is deceased. It was also made out that in the Exhibits and in the evidence of the Respondent and other witnesses, Luka Agyo admitted and acknowledged the gift of the disputed land by Aji Jebu who is related to the Respondent, whom he referred to as his father. It was alleged by the Appellant that the Respondent admitted the gift of land to the Appellant in Exhibit A1, at pages 30 to 31 of the records of appeal.

At the trial, the Appellant testified for himself and called five (5) other witnesses which included his boundary men, gift beneficiaries of part of the land who gave unchallenged evidence as to the gift of the disputed land to the Appellant and his numerous acts of ownership, pages 21 – 23, 104 – 107, 151 – 154 and 161 – 164 of the records of appeal. The Respondent on his part, called one Nwunuji Agbo (DW1) as a witness, he was said to have admitted that he knew the people Aji – Jebu made gifts of his land to, he mentioned the Appellant, the appellant’s late witness Agya Shishi and Bako Bayo, page 167 of the printed records of appeal.

At the close of the trial, the trial Court dismissed the Appellant’s claim on the basis that the Appellant failed to prove his root of title and ought to have produced other witnesses to the gift since the witness Agya Shishi is late, to show that the gift was made to him voluntarily and in the presence of a witness or witnesses since the Respondent made out that their father (Aji Jebu) did not give out any portion of land in dispute to the Appellant; pages 254 – 265 particularly at page 263 of the records.

The Appellant who was dissatisfied with the judgment of the lower Court appealed to this Court. Four issues were formulated for the determination of the appeal thus:
(1) “Whether or not with the various oral and documentary admissions from the Respondent and his witness at the trial Court, the Appellant still need (sic) to prove the gift and title of the disputed land beyond what he has already proved and admitted by the Respondent. (Grounds 3 and 4 of the Amended Notice of Appeal)
(2) Whether or not a particular witness or a particular number of witness(es) or in the instant case; the evidence of the late witness (Agya-Shi-shi) to the gift of the disputed land is required to prove the traditional history of gift of a disputed land despite the pleaded and established facts. (Grounds 7 and 8 of the Amended Notice of Appeal)
(3) Whether or not the failure of the trial Court to evaluate the evidence (oral and documentary) which occasioned a miscarriage of justice will warrant the appellate Court to step into its shoes and properly evaluate them. (Grounds 1 and 2 of the Amended

Notice of Appeal)
(4) Whether or not the Appellant as plaintiff at the trial Court has discharged the onus placed on him by law in prove (sic) of his case having regard to the totality of evidence adduced at trial.” (Grounds 5 and 6 of the Amended Notice of Appeal)

The Respondent on his part formulated three issues thus:
1. “Whether the Appellant was able to prove his case with credible evidence as required by law to warrant the judgment of that Court in his favour?
2. Whether or not the trial Court in this case failed to evaluate the evidence adduced before it by the parties? And if he did not.
3. Whether or not the failure to evaluate the evidence adduced by the trial Court has occasioned any miscarriage of justice to the Appellant?”

In arguing the appeal, the learned counsel to the appellant Martin Milkman, Esq. holding the brief of H.M. Oweka, relied on his amended brief of argument filed on 12/11/19, deemed properly filed and served on 13/10/20 and his reply brief filed 19/10/20 as his argument in the appeal in urging us to allow same, set aside the decision of the trial Court and grant the reliefs of the

appellant as endorsed in his statement of claim. In arguing his first issue, it was submitted that in an action for declaration of title to land as in the present case, the plaintiff succeeds on the strength of his case and not on the weakness of the defence, though in appropriate cases where the case of the defence supports that of the plaintiff, he can take advantage of same in establishing his case. That is, evidence from a party or his witnesses that supports the adverse party’s case constitutes evidence in support of the adverse party’s case, the evidence must be on facts pleaded. See, AKOMOLAFE VS. GUARDIAN PRESS LTD (2010) VOL. 182 LRCN, PAGE 63 at 75 A – F, NWOKIDU VS. OKANU (2010) VOL. 183 LRCN PAGE 114 at 143 F – K and Sections 131 – 134 of the Evidence Act, 2011. The evidence of the PW5 and DW1 was reviewed alongside the previous proceedings captured in the judgment Exhibit A1 at paragraph 5, page 30 of the records as to the evidence of the PW1, which is that one Shawulu (PW5) came to his father and begged for the farm and he was given. It was submitted that the Appellant pleaded at paragraph 10 of his Amended Statement of Claim

that it was through him that Solomon Adi (PW6), the Defendant in Exhibit A1 came to the land, as insisted by the Respondent in Exhibit A1. See, ALLI VS. ALESINLOYE (2000) VOL. 77 LRCN, PG. 742 at 802 G. It was submitted that there was overwhelming evidence oral and documentary of admissions by the Respondent and his witnesses before the trial Court. See, ADUSEI & ANOR VS. ADEBAYO (2012) VOL. 207 LRCN P. 77 at 99 AF. While referring to Section 169 of the Evidence Act, it was submitted that the trial Court erred in law when he agreed with the respondent’s latter denial of the gift after his initial admission of the gift because he is estopped from approbating and reprobating.

Under issue two, it was submitted that there is no particular number of witnesses or a particular witness that is needed for the proof of a case or particular fact unless expressly required by law. See, AGBI VS. OGBEH (2006) VOL. 139 LRCN, P. 1739 at PAGE 178. It was argued that the PW5 gave evidence that he had been going to the disputed farm with the Appellant and his uncle since early 1970’s, paragraphs 7 and 8 of the witness’ Statement on Oath where he

mentioned his father and uncle, also his late uncle Aji Danjuma as his source of information about the traditional gift when he became an adult. The PW5 maintained that Ali Audu was the original owner and not Aji Jebu and that it was not Ali Audu that gave the Appellant the land but, Aji Jebu, pages 152 – 153 of the records of appeal.

On the other hand, the Appellant under cross examination, maintained that it was not his father that first occupied the land but, that he was given the land by Aji Jebu. It was submitted that what is important to prove is proof of the gift and not proof through a particular witness. It was submitted that the trial Court was wrong to have held that the plaintiff only told the Court that the gift was done in the presence of one Agya Shi-Shi who is now late, this view was argued to be perverse, pages 262 – 263 of the records of appeal. It was argued that if the evidence of a family member is necessary in proof of a gift or title, to land, the Respondent ought to have called the biological children of Aji – Jebu as witnesses at the trial because his witnesses DW1 and DW6 admitted under Cross Examination that

Aji – Jebu’s two sons Kaduna and Akimbo respectively are still alive, pages 167 and 169 of the records. Further, that it is not in doubt that the Appellant has adduced evidence personally and through his witness credible, cogent and uncontradicted evidence in support of his pleaded traditional history of gift of the disputed land as there is no issue of the credibility of the evidence of the Appellant or his witnesses in the present appeal. It was submitted that the Appellant gave out portions of the land in dispute to the PW1, Luka Agyo as an outright gift, Luka Agyo also gave out a portion as an outright gift to Solomon Adi (PW6) as seen in Exhibit ‘A1’, page 32 of the records. The learned counsel made reference to Exhibit ‘A’, the Certified True Copy (CTC) of the records of proceedings of the Area Court and Exhibit ‘A1’, the judgment of the trial Court, the Exhibits were in respect of the land that formed part of the disputed land part of which was given out by the Appellant to one Luka Agyo who also gave out to the Defendant in the case, Solomon Adi who testified as the PW6 for the Appellant at the trial

Court, pages 29 to 52 of the printed records of appeal. It was alleged that the trial Court in its judgment did not utilize the Exhibits or evaluate same in the entire judgment which led to perverse findings. See, AYUYA & ORS VS. YONRIN & ORS (2011) VOL. 199 LRCN, PAGE 143 at 169 and 170. It was alleged that the Appellant’s counsel’s address was also not considered, see pages 225 – 236 of the records. Further, that the trial Court did not evaluate the Appellant’s oral evidence otherwise the trial Court would have seen the unchallenged evidence of boundary men, the gift of the disputed land, his long possession and other acts of ownership like farming, gifts and letting out portions of the land. It was submitted that the Area Court Judge visited the disputed land in the presence of the parties and their witnesses, saw the features and boundary men. We were urged to evaluate the evidence before the Court, oral and documentary and arrive at a proper decision.

On the fourth issue, it was submitted that where title to land is said to have been derived by grant/gift or inheritance, the pleadings must aver facts relating to the

founding of the disputed land, persons who founded the land and exercised original acts of possession and persons on whom title has devolved from inception. See, IROAGBARA VS. UFOMADU (2009) VO. 174 LRCN, PAGE 61 at 75. The onus is on the person who pleads gift as his root of title to prove the title/origin of his grantor unless title has been admitted, as in the present appeal. See, AKOMA VS. OSENWOKWU (2004) 11 NWLR (PT. 883) PAGE 98 at 177, PARAS. B – C. It was submitted that the identity of the land must also be ascertained which the Appellant did via the evidence of the PW4 and PW6 boundary neighbours but, the Respondent failed to call any. It was argued that the Appellant’s evidence on his root of title was unchallenged to the effect that the Appellant rightly claimed title from Ali Audu to Aji Jebu and then to himself.

On the part of the Respondent, the learned counsel A. Oliver Esq. adopted and relied on his brief of argument filed on 15/10/19 deemed filed on 13/10/2020 in urging us to dismiss the appeal with substantial costs and affirm the judgment of the trial Court. In arguing his first issue, it was submitted that in a declaration

of title, the plaintiff must succeed on the strength of his case and not the weakness of the defence. See ODI VS. IYALA (2004) ALL FWLR (PT. 207) P. 570 at 579 – 580, TEMILE VS. AWANI (2001) 30 WRN P. 1 amongst others. It was submitted that the claimant is expected to prove his case through any of the five ways of proving title to land. See, AYORINDE VS. SOGUNRO (2013) 1 WRN P. 1 at 7, MAIKWADO VS. IZALA ASSOCIATION SALAH (2017) 23 WRN P. 134 at 137 – 138 amongst others. It was submitted that the Appellant’s root of title is customary gift which the Respondent in paragraphs 8, 9 and 10 of his statement of defence at page 60 of the records of Appeal denied. It was submitted that only the Appellant as the PW2, pages 104 – 107 and 160 – 164 of the printed records and his son PW5, pages 21 – 23 and 151 – 154 testified in respect of the gift. It was argued that the evidence of the PW5 is hearsay as he did not witness the alleged gift. See, OKEGBEMI VS. AKINTOLA (2008) 46 WRN P. 142 at 146 – 147 and EDOSA VS. OGIEMWANRE (2019) 15 WRN P. 1. It was also argued that a claim by gift must be strictly proved for a

declaration of title. See IKPAMAKU VS. MAKOLOMI (2017) 14 WRN P. 61 at 68. It was submitted that the voluntariness of the gift was not pleaded. It was argued that the Appellant failed to prove his root of title as required by law. Further, that the DW2 and DW3 (ward heads) at pages 68 – 71 and 177 – 182 of the printed records testified that they were not aware of any gift that was made by the Respondent’s father to the Appellant and his brother. It was argued that it was either that there was no gift at all or such gift was made in secret, unknown to Aji Jebu’s children and the Ward Heads. It was further argued that Exhibit ‘A1’ which the Appellant’s counsel heavily relied upon is an inadmissible document, pages 29 – 38 of the records, which did not comply with the provisions of Section 104 of the Evidence Act, 2011 reliance was placed onP.D.P. VS. SIDI – ALI (2004) ALL FWLR (PT. 220) P. 1371 at 1377 and EMEKA VS. CHUBA – IKPEAZU (2017) 24 WRN P. 62 at 69. It was argued that there is nothing to show that the required legal fee was paid to obtain the document and that there is no date on the document

as to when it was made. It was contended that where an inadmissible evidence is wrongly admitted by the Court, such evidence can either be expunged or discountenanced. See SOMORIN VS. ADEKANBI (2012) 14 WRN P. 126 at 131. In alternative argument, it was submitted that assuming Exhibit ‘A1’ is an admissible document; a careful reading of it shows that the land referred to in it is different from the land now in dispute because the locations are different, pages 29 and 30 of the records of appeal. It was argued that the learned counsel to the Appellant did not explain whether the land in Kindagba close to Soyoyo Valley is the same with the land lying in Soyoyo Valley or Kitabra, we were urged to hold that Exhibit ‘A1’ is irrelevant to this case.

Further, that there was conflicting evidence on the part of the Appellant as to whether the appellant’s root of title is by an outright gift or a gift in trust. It was submitted that where a party in a land matter predicates his claim before the Court on a particular root of title and fails to prove that primary root of title, his claim must be dismissed. See, OPOTO VS. ANAUN (2015) 32

WRN P. 79 at 98 – 99, YUSUF VS. ADEGOKE (2008) 40 WRN P. 1 amongst others. It was argued that the Appellant failed to call witnesses in proof of the alleged gift to him and his brother by the Respondent’s father and having failed to do so, cannot rely on other methods to succeed in his claim. See, OLAJIDE VS. AKINBOBOYE (2019) 31 WRN P. 73, GABDO VS. USMAN (2015) 36 WRN P. 85 at 105. It was submitted that where the primary root of title fails, the party’s other claim of possession or acts of ownership on the land becomes evidence of trespass on the land. See, IGBOJIONU VS. UKO (2019) 15 WRN P. 52 at 156 – 157 and EZE & ORS VS. ATASIE & ORS (2000) 9 WRN P. 73. It was argued that the Respondent as the DW5 with his witnesses proved that he farmed on the disputed land with his father before his father’s demise, after which he remained in possession by selling part of the land and putting tenants on portions of the land, the evidence of the PW1 was said to have supported the Respondent’s case, pages 146 – 147 and pages 152 – 153 of the printed records of appeal. Further, that the Appellant did not deforest the land in dispute.

It was argued that the Respondent who did not counter claim had no duty to prove title but, to defend the suit. See, OGUNDEPO VS. OLOJEDE (2019) 28 WRN P. 105 at 113.

Issues two and three were argued together. It was submitted that the trial Court evaluated the evidence before it and if it did not, it did not occasion a miscarriage of justice to the appellant. It was submitted that the assessment of evidence and ascription of probative value to such evidence is the primary duty of a trial Court. See, OLUDE VS. STATE (2018) 38 WRN P. 1 at 10 and ABUBAKAR VS. MINISTRY OF ENVIRONMENT & PHYSICAL DEVELOPMENT (2018) 9 WRN P. 124 at 126. It was argued that this Court would only interfere where the trial Court has drawn conclusions from accepted or proved facts that do not support or has taken into account irrelevant matters or has shut its eyes to the obvious. See, BELLO VS. FRN (2018) 51 WRN P. 1 at 5 and STATE VS. SANI (2018) 25 WRN P. 45 at 51. It was submitted that evaluation of evidence entails putting all the evidence on an imaginary scale to see which side outweighs the other. See, LAFIA L.G. VS. EXECUTIVE GOVERNOR NASARAWA STATE

(2015) 13 WRN P. 1 at 14. The learned counsel contended that the trial Court properly evaluated the evidence before it and defined a perverse judgment as findings of the trial Court that run counter to the pleadings or where the Court took into consideration what it ought not to have taken into account, or shut its eyes to the obvious. See, NKADO VS. OBIANO (1997) 5 SCNJ P. 33 at 37. It was concluded that if the evidence is re-evaluated, the findings and conclusions would not be different from that of the trial Court. It was submitted that no miscarriage of justice was occasioned that would result in a reversal of the decision of the trial Court.

The Appellant in his reply brief of argument re-argued the issues in the Appellant’s brief of argument.
The issues formulated by the parties are on evaluation of evidence. I will reformulate the issues into a sole issue thus:
Whether by the evidence adduced at the lower Court, the Appellant as plaintiff proved his case as to have been entitled to judgment at the trial Court.

It is trite law that in an action for declaration of title to land, the plaintiff succeeds on the strength of his case

and not on the weakness of the defence and in some cases where the case of the defence supports that of the plaintiff such would constitute evidence in support of the adversary’s case, such facts must be pleaded. The claims of the Appellant at the trial Court were mainly declaratory; the duty therefore was on him to succeed on the strength of his case and not on the weakness of the defendant’s case. Declaratory reliefs are granted where the plaintiff is entitled to the reliefs, therefore the plaintiff must plead and prove his claim to be entitled to judgment, it is also not granted as a matter of course. See, ALAO VS. AKANO & ORS (2005) LPELR – 409 (SC) PP. 9 – 10, PARAS. C – D, YIROM VS. RIKAINYANGBE & ANOR (2018) LPELR – 44480 (CA) P. 17, PARAS. B – F and CHUKWUMAH VS. S.P.D.C. (NIG) LTD (1993) LPELR – 864 SC, PAGES 64 – 65. Where the defendant admits the plaintiff’s case, it supports the case of the plaintiff. The appellant pleaded that Aji Jebu who was a herbalist and was not farming gave him and his elder brother Aji Danjuma the land in dispute to farm on, in the presence of Agya Shishi

in 1973, he testified as the PW2, the PW5, Moses Bulus Shawulu, the appellant’s son testified that Aji Jebu (the respondent’s father) gave the appellant the land in dispute as an outright gift in the presence of Agya Shishi in the same year as pleaded. On the other hand, the Respondent in his pleadings, pages 8, 9 and 10 of his statement of defence denied the fact of the gift but, the defence witness the DW1 (Nwunuji Agbu) under cross examination testified that the late Aji Jebu who originally owned the land in dispute gave out part of it to Shawulu the Appellant, Agya Shishi (the witness to the gift) and Bako Bayo (the Appellant’s boundary man). The DW1 testified that by their Jukun custom, when such a gift is made, no one can challenge it, only the grantor could withdraw such gift. The learned trial Judge failed to utilize the contents of the previous proceedings Exhibit ‘A1’ which the learned counsel to the Appellant faulted. The Respondent herein was the PW1 in Exhibit ‘A1’ who referred to the Appellant’s grantor as his father, Aji Jebu, the Respondent in Exhibit ‘A1’ testified that one Shawulu

begged his father for land which he was given and that it was the said Shawulu that brought the defendant, PW6 in the previous proceedings to the land. It is the law that facts admitted do not need further proof. See, SUNDAY OFFOR & ANOR VS. THE STATE (2012) LPELR – 19658 (SC) P. 31, PARA. A; SOLANA VS. OLUSANYA & ORS (1975) LPELR – 3097 (SC) P. 10, PARAS. A – B and OLIYIDE & SONS LTD VS. OAU, ILE – IFE (2018) LPELR – 43711 (SC) P. 9, PARAS. A – B.

The Respondent questioned the validity of the gift and made out that the gift was not outright but, that the Appellant was to hold the land in trust and differentiated an outright gift from a gift in trust. A gift could only be revoked by the donor, the Respondent who questioned the voluntariness of the gift and the validity is not in a position to do so, not having been the donor and the issue of its voluntariness did not arise. There is no evidence put forward by the Respondent to show that the gift was not voluntarily made. Aji Jebu, the donor did not revoke the gift while alive.

The law is that a customary gift of land must be backed up by the evidence of

witnesses. The Appellant gave evidence in support of the gift to him as PW2, PW5 also gave evidence in its support, the DW1 also gave evidence as to the gift. It is also on record that the Appellant had been farming on the land with members of his family and gave part of the land in dispute to Luka Agya who later gave to Solomon Adi (PW6 in Exhibit A1). See, FEDRICK CHIBUZOR & ANOR VS. PETER CHIBUZOR (2018) LPELR – 46305 (CA) PP. 31 – 34, PARA. A. The learned counsel to the Appellant had argued that only two of the Appellant’s witnesses gave evidence as to the gift, the Appellant himself and the PW5. The law is that a party need not call a host of witnesses for their evidence to be believed and utilized by the trial Court. See, ONAFOWOKAN VS. STATE (1987) LPELR – 2666 (SC) PP. 25 – 26, PARAS. F – B, IGBO VS. STATE (1975) LPELR – 1447 (SC) and BASSEY VS. STATE (2019) LPELR – 46910 (SC). The important thing is, if the sole witness or two witnesses are believed, in this case, the Appellant need not have called several witnesses to prove the gift of the land in dispute to him by Aji Jebu.

On the other hand, the Respondent testified as to the gift in Exhibit ‘A1’ and the DW1 also under cross examination admitted the gift. The trial Court ought to have relied on the contents of Exhibit ‘A1’, previous Court proceedings where the Respondent admitted the gift of the land to the Appellant. The PW5 testified that when his father was given the land in dispute by Aji Jebu, he used to help him on the farm, Aji Jebu was said to have derived his title from Ali Audu. The gift was made in the presence of one Agya Shishi, who was deceased and therefore could not testify at the trial. The donor did not revoke the gift in his life time. The trial Court was therefore wrong to have faulted the evidence on the Appellant’s side for the mere reason that only the Appellant and his son (PW5) were the only ones that knew about the gift by Aji Jebu to the Appellant. On not calling the person(s) that witnessed the gift, in ADEKANYE V. GRAND SERVICES LTD (2007) LPELR – 4047 (CA) at P. 27, PARAS. B – D his lordship, Peter – Odili, JCA (as he then was) on whether a party is bound to call a particular witness held thus:

“The Respondent was at liberty to defend the case as he felt he ought to. This is because a party is bound to call a particular witness if he thinks he can establish or prove his case through another channel. See Section 14 (d) of the Evidence Act; BELLO VS. KASSIM (1969) NMLR 148.”
Agya Shishi is late and could not have been called to testify. The law is that there is no obligation on a party to call a particular witness. A party will call only such witnesses as are necessary to establish its case. The Appellant chose to give evidence in support of his case, his son who used to follow him to the farm, his boundary neighbours and those that the land was leased out to for farming purposes; he also gave out some portions. See, ARIBIGBOLA AWOSIKA & ANOR VS. THE STATE (2010) LPELR – 9164 (CA) P. 33, PARA. B, OGBEBOR VS. UTAGBA RUBBER ESTATE LTD & ANOR (2014) LPELR – 24476 (CA) P. 13, PARAS. A – D, KAMILA VS. STATE (2018) LPELR – 43603 (SC) PP. 19 – 20, PARAS. D – E and IDAGU VS. STATE (2018) LPELR -44343 (SC) PP. 47 – 49, PARAS. D – A. There is no evidence on record that the gift

was not voluntarily made and the Respondent is not in a position to question if the gift was voluntarily made or not. The gift being a customary one, the land passed from one person to the other, from generation to generation as rightly argued by the learned counsel to the Appellant and could be established through a witness or witnesses, it could be proved by a sole witness and not a particular witness as argued by the learned counsel to the Respondent who expected relations and the children of the vendor, Aji Jebu to have been present when the land was given to the Appellant by the Respondent’s father.

In Exhibit ‘A’, the appellant herein testified as the PW3, page 43 of the printed records of appeal and stated that he shared a boundary with the PW2, Luka Agya whom he gave part of the land in dispute, while Solomon Adi (PW6) who was the complainant in Exhibit ‘A’ testified therein as the PW1, page 40 of the records, Luka Agya gave part of his portion to the PW6, page 42 of the records. The PW2 shared boundary with the Appellant to the North and confirmed that Aji Jebu gave the land in dispute to the Appellant (Shawulu). The

PW6 who was the complainant in Exhibit ‘A’ and the defendant in Exhibit ‘A1’ gave unchallenged evidence that he shares a boundary with the land in dispute, on the portion given to him by Luka Agya who derived his title by a gift from the Appellant. The Area Court and the Lower Court gave judgment in favour of Solomon Adi, a boundary neighbour to the disputed land who derived his title from Luka Agya who got his portion from the Appellant. The decisions in Exhibits ‘A’ and ‘A1’ were not appealed against and remain binding until set aside by a higher Court. The Respondent did not counter the evidence of the PW2 and PW6 in respect of how the PW6 (Solomon Adi) got his land. In NWEKE NWOKEDI & ORS VS. EKWENUGU OKUGO & ORS (2002) LPELR – 2123 (SC) P. 7; PARAS. B – C, his lordship Katsina-Alu, JSC on the validity and subsistence of a judgment not set aside by a higher Court held thus:
“It is also significant to point out that both the trial Court and the Court of Appeal have held that the judgment in the 1907 case which declared title in the plaintiffs is valid and subsisting. The trial

Judge in his judgment held as follows: “It is trite that a judgment not appealed against and or set aside by a higher Court is a valid and subsisting judgment. WILLIAMS VS. SANUSI (1961) 2 SC NLR 129 (1961) 1 ALL NLR 334. As I have not been referred to any decision of a higher Court setting aside the judgment of 1907, I hold that it is still a valid judgment and subsists.”
See also, MA’AJI SULEIMAN (2017) LPELR – 43149 (CA) PP. 44 – 45, PARAS. F – D, In RE: AGBOYI – KETU LOCAL DEVELOPMENT AREA and ANOR (2017) LPELR – 41955 (CA) P. 20, PARAS. D – E and S.D.P.C. (NIG) LTD VS. X.M. FED. LTD (2006) 16 NWLR (PT. 1004) 189 S.C.

It is on record and not disputed that the parties in the present appeal were witnesses in the previous cases and the disputed land in those cases in Exhibits ‘A’ and ‘A1’ is part of the present land in dispute given to Luka Agya by the appellant, who gave Solomon Adi. These pieces of evidence were not challenged before the trial Court. Part of the Appellant’s case is that he had been exercising acts of possession over the land for a long time undisturbed;

farming, letting and giving out portions of the land. The trial Court ought to have evaluated the oral evidence of the Appellant, the unchallenged evidence of the boundary men, gift of part of the land, long possession and farming on the land in dispute. The Respondent did not challenge others who derived their title from the Appellant and still farming on the portions given out to them from the larger land in dispute. Similarly, the evidence of the appellant’s witnesses was not evaluated. I agree with the submissions of the learned counsel to the Appellant that, if the lower Court had evaluated the evidence put forward by the Appellant, the Court would have appreciated the unchallenged evidence of the boundary men PW1 and PW6, gifts made by the Appellant of portions of the land in dispute, long possession, farming and letting. The contents of Exhibits ‘A’ and ‘A1’ are subsisting and ought to have been properly evaluated and utilized by the trial Court; the decision would have been different. This failure resulted in perverse findings.

The appellant discharged the onus on him as to how the disputed land devolved on him as averred in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of his Amended Statement of Claim to the effect that the land in dispute was founded by Ali Audu who gave it out to Aji Jebu who gave the Appellant and his brother Aji Danjuma, when his brother died, the entire land devolved on the Appellant, the Respondent did not deny the Appellant’s grantor’s root of title. Both parties agreed that the founder of the land in dispute was Ali Audu who later gave out to Aji Jebu. The Appellant’s son PW5 gave evidence as to how he used to farm on the land with his late uncle (Aji Danjuma) and his father, the Appellant. This piece of evidence was not controverted by the Respondent. The identity of the land in dispute is not in doubt, it is known by both parties, the Appellant identified his boundary neighbours and traced his root of title all of which have not been discredited by the evidence of the Respondent or his witnesses. The Appellant’s boundary neighbour PW6 who got his land from the Appellant had judgment in his favour at the trial Court also; another boundary man, the PW1 no doubt also, got his land from the Appellant. The PW4 a boundary man to the

land in dispute also testified on behalf of the Appellant. As rightly argued by the learned counsel to the Appellant, the Respondent did not call any of his boundary men to testify on his behalf but, called recent ward heads who did not own any land in the area of the land in dispute but, made out that they were not aware of the gift of the land in dispute to the Appellant even though they were not ward heads when the gift was made. The evidence put forward by the appellant is over whelming and not impeached by the evidence put forward by the Respondent. On how the Appellant got the land in dispute, its features, boundary marks, boundary men, the Appellant’s acts of possession and ownership remained unchallenged, since the evidence adduced by the Appellant and his witnesses was not discredited by the evidence from the Respondent or under cross examination, ought to have been utilized by the trial Court to establish or affirm the position of the Appellant in this case. On the effect of unchallenged/uncontroverted evidence, in MARTCHEM INDUSTRIES NIGERIA LTD VS. M.F. KENT WEST AFRICA LTD (2005) LPELR – 1842 (SC) PP. 15 – 16, PARAS. G – A,

his lordship Oguntade, JSC held thus:
“… It is now trite law that when evidence is unchallenged and uncontroverted, the same may be accepted by the trial Court for the purpose the evidence is offered provided the evidence itself is in its nature credible. See, ADEJUMO VS. AYANTAGBE (1989) 8 NWLR (PT. 110) 417 and OWONYIN VS. OMOTOSHO (1961) 2 SCNCR 57 (1961) 1 ALL NLR 304”
See, OMOREGBE VS. LAWANI (1980) LPELR – 2655 (SC) P. 16, PARAS. A – D, MTN VS. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC) PP. 53 – 54, PARAS. B – C, ODULAJA VS. HADDAD (1973) 11 S.C. P. 35 and NIGERIAN MARITIME SERVICES LTD VS. ALHAJI BELLO AFOLABI (1978) 2 S.C. 79 at 81 – 82. It is the law that evidence adduced by a party in any proceeding which is neither challenged nor controverted by the opposite party, it is open to the Court to act on the uncontroverted evidence before it. No doubt the Respondent admitted that Ali Audu who gave the land to Aji Jebu through whom the Appellant claims founded the land in dispute and that the PW1, PW4 and PW6 boundary men to the land in dispute are still in possession and

occupation of their land till date. It is also in evidence that the PW1 and PW6 got their land from the Appellant. The trial Court did not evaluate the evidence adduced by the Appellant and therefore arrived at a wrong decision that the strength of the appellant’s case is not enough to have granted the appellant the declaration of title sought in his favour. The failure of the lower Court to evaluate the evidence adduced at the trial Court occasioned a miscarriage of justice. The evidence of the Appellant’s witnesses showed clearly the appellant’s root of title as gift of the disputed land by Aji Jebu. As a whole, I hold that the appellant proved his title to the disputed land and was entitled to judgment. See, SEVEN UP BOTTLING COMPANY PLC VS. ABIOLA and SONS BOTTLING CO. LTD & ANOR (2001) LPELR – 7043 (CA) PP. 32 – 37, PARAS. F – B and MARANATHA CONSULTANTS LIMITED & ANOR VS. MRS. JOY YETUNDE DIRISU (2019) LPELR – 47745 (CA) PP. 30 – 31, PARA. A. The sole issue as reformulated is resolved in favour of the Appellant. The appeal is allowed, the decision of the trial Court is hereby set aside, instead the

reliefs sought by the Appellant at the trial Court are granted except reliefs (e) and (f) which I have varied. Where trespass is proved, as in this case, the appellant is entitled to damages. I award under relief (e) N500,000.00 (Five Hundred Thousand Naira) as damages for trespass and (f) N100,000.00 (One Hundred Thousand Naira) costs to the appellant.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, Chidi Nwaoma Uwa, JCA. I agree entirely with my learned brother that if the Court below had taken a careful look at the evidence adduced by the parties, it would not have dismissed the claim of the Appellant.

For the more detailed consideration of the issues in the appeal and the conclusion arrived at by my learned brother, I too allow the appeal and set aside the judgment of the Court below.
I abide by all orders in the leading judgment including the order as to costs.

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

Appearances:

Martin Milkman, Esq., holding the brief of H.M. Oweka Esq. For Appellant(s)

Oliver, Esq. For Respondent(s)