DISA & ORS v. GADAKA & ANOR (2021)

DISA & ORS v. GADAKA & ANOR

(2021)LCN/15128(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/G/241/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. MUHAMMED DISA 2. ADAMU NIKAU 3. MOHAMMED LAMBA 4. BAYOJI ALIAS MAINA 5. BALA DISA 6. DANLITI DISA 7. DANLADI DISA 8. HUDU MAU CHAJI 9. IBRAHIM NUHU APPELANT(S)

And

1. ABDULLAHI GADAKA 2. MOHAMMED ABDULLAHI RESPONDENT(S)

RATIO

ATTITUDE OF THE APPELLATE COURT REGARDING INTERFERENCE WITH FINDINGS OF FACTS OF A TRIAL COURT

The settled position of the law is that, in the consideration of an Appeal from the decision of a trial Court, the duty of this Court is to review the findings of the said Court and decide whether it came to a right decision. Thus, my responsibility is not to re-evaluate the evidence of the parties adduced at the trial Court and to make my own findings thereon. Rather, it is to decide whether the lower Court was right in its decision in the light of its own review of the findings of the trial Court. Traditionally and as a matter of law therefore, an appellate Court should not interfere with findings of facts of a trial Court, except where the findings do not correspond with the evidence before it. In such a circumstance, the findings are described as perverse. It is in this vein that the Supreme Court in Adamu V State (2017) 7 NWLR (Pt. 1565) 459, admonished thus: “Unless the Appellant is able to show that the the said findings are perverse, this Court will not interfere with the concurrent findings of fact by the two lower Courts. The Appellant has failed to advance any special or compelling reasons to warrant such interference by this Court.” See Unity Bank Plc V Abba (2013) LPELR-22890(CA); Dasuki (Rtd) V FRN ELC (2018) 3047(SC) 1; Egbufor V State (2013) LPELR-20688(CA); Unity Bank Plc V Abba (2013) LPELR-22890(CA); Nteogwuile V Otuo (2001) 16 NWLR (Pt. 738) 58; Iroagbara V Ufomadu (2009) 5-6 SC (Pt. 1) 83; Ojo V Gov. Oyo State (1989) 1 NWLR (Pt. 956) 1. On what constitutes a perverse decision, the law has also not left it to conjecture. The apex Court in Abegunde V Ondo State House of Assembly (2015) 4-5 SC (Pt. 1) 1, defined it thus: “In UBN Plc V Chimaeze (2014) LPELR-SC 204/2006, this Court defined what a perverse decision is and how same is treated on appeal thus: “[A] decision of a Court is perverse when it ignores the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such as decision… In the case at hand therefore, the appellant succeeds only if [he] establishes that in its findings in respect of the special and general damages, the lower Court has ignored the evidence on record and/or wrongly applied a principle to the evidence. The appellant/cross respondent must establish too that the lapse has occasioned a miscarriage of justice.” See Atolagbe V Shorun (1985) LPELR-SC.14/1984.” PER JUMMAI HANNATU SANKEY, J.C.A.

INTERPRETATION OF SECTIONS 3 AND 6(1) (A) OF THE LAND USE ACT REGARDING WHETHER A LOCAL GOVERNMENT CAN ISSUE A CERTIFICATE OF OCCUPANCY IN RESPECT OF LAND IN AN URBAN AREA

By Section 6(1) (a) of the Land Use Act (supra) therefore, Local Governments are empowered to grant customary rights of occupancy in respect of land not in urban areas. Section 3 of the same Act provides for the authority that is mandated to designate areas of the State as urban areas. For ease of reference, it provides: “3. Subject to such general conditions as may be specified in that behalf by the National Council of States, the Governor may for the purposes of this Act by order published in the State Gazette designate the parts of the area of the territory of the State constituting land land in an urban area.” Thus, by a combination reading of Sections 3 and 6(1) (a) of the Land Use Act, a Local Government only has power to grant certificates of occupancy in respect of land not in an urban area. This is the Law. PER JUMMAI HANNATU SANKEY, J.C.A.

POSITION OF THE LAW ON HOW TO DETERMINE WHETHER OR NOT A PARTICULAR PIECE OF LAND IN DISPUTE IS WITHIN AN URBAN AREA

… a similar argument was canvassed in the case of Ogu V Nwaobia (2000) FWLR (Pt. 6) 922, and it was held as follows: “Whether or not a particular piece of land in dispute is within an urban area and so subject only to the jurisdiction of the High Court is a matter of evidence. It is not only by looking at a map or plan that an urban area can be determined. The evidence of a surveyor will have to be adduced or a map tendered to explain the area designated “urban area”… It is not enough for Counsel to stand up in the Court and simply state that the disputed piece of land is within an urban area without leading evidence to establish that fact.” Also, the apex Court in Adene V Dantunbu (1994) 2 NWLR (Pt. 328) 509, 525, held: “It is not only by looking at a map or plan that an urban area can be determined. The evidence of a surveyor who is an expert in that field can be relied upon.” See also Min. of Land & Survey Yola V Sangere (2018) LPELR-45986(CA); Haruna v. Yaro (2016) LPELR-41554(CA) 11-13, F-B; Dweye V Iyomahan (1983) 2 SCNLR 135; (1983) NSCC 393, 396; (1983) 8 SC 76. Thus, by the decisions of the apex Court as well as those of this Court, it is settled law that even though Section 122(2) (a) of the Evidence Act (supra) provides that the Court shall take judicial notice of subsidiary legislation, in instances where the issue before the Court is the determination of particular areas designated as urban areas by the Governor of a State, such an issue must be established by evidence in the event of a dispute as to whether or not an area in dispute is in an urban area. The rational for this is that some expertise is required in the reading and interpretation of the map of the area so designated, which expertise does not lie in the bosom of the Court or even Counsel representing the parties, but in a qualified Surveyor. PER JUMMAI HANNATU SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Justice, Yobe State in Suit No. YBS/HC/PT/12CV/16, delivered on February 1, 2019 by I.W. Jauro, J.

The brief facts leading to the Appeal are that the Appellants as Counter-claimants before the lower Court, filed an action seeking declaratory and injunctive reliefs, as well as damages, in respect of a piece of land as stated at pages 4-6 of the Record of Appeal. They based their claim on traditional history, wherein they claimed that their progenitor founded the land over 100 years ago. Since then, it was inherited by succeeding members of the family who have been in continuous possession. The Respondents as Plaintiffs had claimed the land relying on a certificate of occupancy granted to them over the land in dispute. Title having been put in issue, both parties adduced evidence in proof of their respective claims. At the close of trial, the lower Court entered Judgment in favour of the Respondents/Plaintiffs. Dissatisfied, the Appellants filed their Notice of Appeal on April 24, 2019 wherein they complained on two Grounds. The

reliefs sought in the Notice of Appeal are –
1. “An Order allowing this appeal.
2. An Order setting aside the entire decision of the lower Court which confirmed the title of the five disputed plots of land to the respondent.
3. An Order affirming title to the disputed five plots of land to the Appellants pursuant to the powers of this Honourable Court.”

At the hearing of the Appeal on March 3, 2021, learned Counsel for the Appellants, Sule Yusuf, Esq., adopted the submissions in the Appellants’ Brief of argument filed on 07-08-2019 and the Appellants’ Reply Brief of argument filed on 09-12-19, both Briefs settled by M.M. Ngumurumi Esq., in urging the Court to allow the Appeal, set aside the Judgment of the lower Court and grant the Appellants their claim. On his part, learned Counsel for the Respondents, B.M. Salihu, Esq., adopted the submissions in the Respondents’ Brief of argument filed on 06-11-19 and settled by the same Counsel, in urging the Court to dismiss the Appeal and uphold the Judgment of the trial Court.

The Appellants, in their Brief of argument, distilled the following issues for determination:

“Whether or not the lower Court properly evaluated the traditional evidence led by the Defendants in proving a better title to Plots number 11, 34, 39, 40 and 41. (Ground 1)
2. Whether or not Fika Local Government can grant to a person a Right of Occupancy over land situated in an urban area by virtue of the Land Use Act and Yobe State Declaration of Urban Areas Order, 1991. (Ground 2)”

The Respondents adopted the issues nominated by the Appellants. Therefore, the said issues are adopted in the determination of the Appeal and they shall be addressed sequentially.

ARGUMENTS
Issue one – Whether or not the lower Court properly evaluated the traditional evidence led by the Defendants in proving a better title to Plots number 11, 34, 39, 40 and 41.

Under this issue, learned Counsel for the Appellants submits that the Appellants placed before the lower Court direct and credible evidence in proof of their claim of title through inheritance. Relying on Kosile V Folarin (1989) 4 SC (Pt. 1) 150, 164, he submits that a claim of title through inheritance must be supported by sufficient pleaded facts showing who

founded the land, how it was founded, and the person who owned the land from the founder, right to the time it became vested in the claimant. Counsel refers to the counter-claim and the evidence of DW1 (at pages 27-28 of the Record of Appeal), as well as the evidence of PW1 (at pages 31-32 of the Record).

Counsel further submits that the Appellants, by the DW1’s testimony, proved the following:
a) The founder of the farmland i.e. by their grandfathers – Mai Nikau and brothers, Bazama and grandfather to Abba Disa Gadaka.
b) How the founder founded the land i.e. the founders, Mai Nikau, Bazama and grandfather of Abba Disa, founded/cleared a virgin land of Gadaka town, now known as Gudi Emirate Council in 1901.
c) Those who have taken over from them till the Plaintiffs’ claim, i.e. the Appellants who inherited the farmlands from their late grandfather and father, Mai Nikau and Mai Bah, later known as Lamba Abubakar Bah, respectively.

Counsel therefore submits that the Appellants placed before the trial Court direct and credible evidence in proof of their claim in their counter-claim, to wit: the evidence of DW1 and PW1.

He therefore urged the Court to find that the Appellants proved a better title based on traditional evidence.

In response, learned Counsel for the Respondents submits that the trial Court’s evaluation of the evidence was properly done and in accordance with the law. He submits that the Respondents as Plaintiffs, proved their ownership of the plots in question, while the Appellants as Defendants, failed to prove their counter-claim.

Counsel submits that the Respondents by tendering documents of title in proof of ownership of the plots of land in dispute, shifted the burden on to the Appellants to rebut the claim of the Respondents – Olowu V Olowu (1985) 3 NWLR (Pt. 13) 372, 386. He acknowledges that even though a customary certificate of title presupposes the title of the bearer, such evidence of title is rebuttable; and the burden to rebut this is shifted onto the Defendant. He submits that the Appellants failed to discharge this burden so shifted on them. See Omiyale V Macaulay (2009) 2 MJSC 29, 57, F-G; Hussaini V Ogbuokiri (2004) All FWLR (Pt. 203) 2132, 2149, A-D.

Counsel submits that the Appellants in both their Statement of Defence and

Counter-claim pleaded traditional evidence as their root of title. In order to succeed therefore, they must trace the title to its roots – Odi V Iyala (2004) All FWLR (Pt. 207) 570, 594; Nwokorobia V Nwogu (2009) 10 NWLR (Pt. 1150) 553, 575, H, 589, E-G. He contends that as Counter-claimants relying on traditional history, the Appellants failed to plead how their family came into possession of the land in dispute and failed to trace title to the plots down to themselves. The Appellants called a sole witness in this regard to testify in proof of their traditional history. However, his evidence fell short of the requirement of the law. Counsel therefore submits that the trial Judge rightly determined the case in favour of the Respondents who had established their claim through documentary evidence.

Counsel further submits that the evidence of PW2 and DW1 show that the Respondents have been in undisturbed possession of the land since it was allocated to them in 1995. There is therefore a presumption that the person having title to the land in dispute is in possession. See Omotayo V CSA (2010) 5-7 (Pt. II) MJSC 124, 146, D-E.
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RESOLUTION OF ISSUE ONE
The question to be answered under this issue is whether the Respondents proved their claim by credible evidence to have been entitled to Judgment in their favour? Or put another way, who between the Respondents and the Appellants proved a better title to warrant Judgment being given in their favour? It is evident from the Record of proceedings and the Judgment of the lower Court that the learned trial Judge gave an in-depth consideration to the facts of the case as presented by both parties before arriving at his decision. But, was he right?

As has been re-hashed by learned Counsel for each of the parties, while the Respondents, as Plaintiffs before the lower Court, hinged their claim of title to the plots of land in dispute on documents of title, the Appellants in their defence to the claim and counter-claim, claimed title to the said plots of land based on traditional history. Title having been put in issue front and centre, each set of parties adduced evidence to buttress their claims. The Respondents who had the first burden of proof by Section 134 of the Evidence Act, 2011, called six (6) witnesses and tendered several exhibits. Among the witnesses

were officers, including a Land officer, from Fika Local Government Council who confirmed the creation of the Layout on the direction of the Yobe State Ministry of Land and Survey, the demarcation of plots in the Layout and the subsequent allocation of plots to persons, including the Respondents in 1995. The Layout is situate in Gadaka town in Fika Local Government Area of Yobe State. The receipts of payment for the allocations of the plots in dispute as well as the certificates of occupancy were placed in evidence as Exhibits A, B C, D, E, F and H. A very significant point that emerged in the evidence of DW1, is that the Layout was created in 1995. From the pleadings and evidence of the Appellants, this was during the lifetime of their father, Lamba Abubakar Bah, a.k.a. Mai Bah, from whom they claim to have inherited the land.

On their part, the Appellants’ claim to title was hinged on traditional history. In their quest to establish this, their sole witness, DW1 (2nd Appellant), traced their title to their grandfather, Muri Nikau and his brothers, whom they claim founded and cleared the virgin land in the area now known as Gadaka, and settled

there back in 1901. That thereafter, their father, Mai Bah, later known as Lamba Abubakar Bah, inherited the land. After the death of their father in 1999, they now inherited the land. Interestingly, his evidence also disclosed that their father, who was village head, donated the farmland to the District Head of Gadaka and also to Gudi Emirate when it was created. He however did not know when the land became a Layout and its subsequent allocation to some persons.

In the light of this evidence, the learned trial Court, having reviewed and evaluated the evidence, found for a fact that the Respondents had proved with cogent and credible evidence that the plots in dispute were allocated to them by Fika Local Government Council and they met all the requirements to entitle them to the certificates of occupancy in respect of the plots. However, the evidence of traditional history of the Appellants fell short of proof of same, as the Appellants, through their sole witness in proof of the counter-claim, was unable to state with precision the names of the brothers of Muri Nikau who worked alongside him in founding the land.

The exact complaint of the Appellants in this issue is that the learned trial Judge did not properly evaluate the traditional evidence led by the Defendants in proving a better title to Plots number 11, 34, 39, 40 and 41. From the Records, the case of the Appellants was reviewed, considered and evaluated in the Judgment of the trial Court at pages 70 to 75 of the Record of Appeal. At page 73, in ascribing probative value to the evidence, the learned trial Judge stated inter alia as follows:
“I agree with Counsel for the plaintiff that the defendants’ only witness made efforts to trace the founders of the land but fell short midway as he was unable to mention with certainty the names of the alleged intervening heirs whom they claimed cleared the land in question. The defendants hinged their defence and counter claim to the land through traditional history and to prove this the defendants ought to establish:-
i. Who founded the land
ii. How the land was founded; and
iii. Particulars of the intervening persons through whom he claims.
Anyanwu V Mbara (1992) 5 NWLR (Pt. 242) 386, 399.
The defendants’ witness could not as a matter of fact state

with precision the names of the brothers of the said Muri Nikau who worked alongside with him to clear the virgin land up to himself. The resultant effect is that the defendants were unable to proof title to the land in question and issue two must equally be resolved against them …”

In continuation of his evaluation of the Appellants’ evidence in proof of their counter-claim, the learned trial Judge stated further at pages 74-75 of the Record of Appeal:
“I find the plaintiffs’ case in the counter claim weak for two reasons:
(i) Although PW1 in the counter claim stated in evidence that they inherited the land from his father, the allocation of the plots to the defendants were made when the land was not subject of inheritance as his father was alive when the allocation was made. If anything, I deduce from the evidence before the Court that the father of PW1 since he was alive and did not oppose the allocation to the defendants the only conclusion one can make is that he consented to it. There was therefore no revocation of the land by the local government as canvassed by learned counsel for the defendants for the

first time in his submission. Further on this PW1 in the counter claim stated that his father has brothers who are alive after his death but yet could not present anyone of them before the Court to strengthen his claim. It is therefore a big blow to the case of the counter claimants.
(ii) Secondly, even PW1 in the counter claim admitted under cross examination that the allocation was made in 1995 and the father died in 1999, four years thereafter. His position was therefore supportive of the defendants’ case that the plots were indeed allocated to them by the local government authority. His becoming aware of the allocation four years after the death of his father and he could not take any steps to address the anomaly until after the plaintiffs took them to Court… shows his apathy at the initial stage. And even then, he did not seem to be bothered much since the issuing authority of the allocation letters (i.e. Fika Local Government) over the plots is not made a party in this case… The defendants indeed left out a necessary party to the present action which is detrimental to their case…
On the whole therefore, I find the

plaintiffs to have proved a better title through grant by Fika local government council.”

From all the above, it is manifest that the learned trial Judge gave proper consideration of the case of the Appellants as presented in proof of their counter claim contrary to the contention of the Appellants. Indeed, I find that these sound findings made after an in-depth analysis and evaluation of the evidence adduced in proof of the Appellants’ counter-claim, are completely borne out by the evidence on the Record. I therefore find no reason to disturb them.
The settled position of the law is that, in the consideration of an Appeal from the decision of a trial Court, the duty of this Court is to review the findings of the said Court and decide whether it came to a right decision. Thus, my responsibility is not to re-evaluate the evidence of the parties adduced at the trial Court and to make my own findings thereon. Rather, it is to decide whether the lower Court was right in its decision in the light of its own review of the findings of the trial Court. Traditionally and as a matter of law therefore, an appellate Court should not interfere with

findings of facts of a trial Court, except where the findings do not correspond with the evidence before it. In such a circumstance, the findings are described as perverse. It is in this vein that the Supreme Court in Adamu V State (2017) 7 NWLR (Pt. 1565) 459, admonished thus:
“Unless the Appellant is able to show that the the said findings are perverse, this Court will not interfere with the concurrent findings of fact by the two lower Courts. The Appellant has failed to advance any special or compelling reasons to warrant such interference by this Court.”
See Unity Bank Plc V Abba (2013) LPELR-22890(CA); Dasuki (Rtd) V FRN ELC (2018) 3047(SC) 1; Egbufor V State (2013) LPELR-20688(CA); Unity Bank Plc V Abba (2013) LPELR-22890(CA); Nteogwuile V Otuo (2001) 16 NWLR (Pt. 738) 58; Iroagbara V Ufomadu (2009) 5-6 SC (Pt. 1) 83; Ojo V Gov. Oyo State (1989) 1 NWLR (Pt. 956) 1.

On what constitutes a perverse decision, the law has also not left it to conjecture. The apex Court in Abegunde V Ondo State House of Assembly (2015) 4-5 SC (Pt. 1) 1, defined it thus:
“In UBN Plc V Chimaeze (2014) LPELR-SC 204/2006, this Court defined

what a perverse decision is and how same is treated on appeal thus:
“[A] decision of a Court is perverse when it ignores the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such as decision… In the case at hand therefore, the appellant succeeds only if [he] establishes that in its findings in respect of the special and general damages, the lower Court has ignored the evidence on record and/or wrongly applied a principle to the evidence. The appellant/cross respondent must establish too that the lapse has occasioned a miscarriage of justice.”
See Atolagbe V Shorun (1985) LPELR-SC.14/1984.”

Thus, the Appellants having failed to impugn or impeach the findings of the trial Court in respect of the counter claim, issue one is resolved against them.

Issue two – Whether or not Fika Local Government can grant to a person a right of occupancy over land situated in an urban area by virtue of the Land Use Act and Yobe State Declaration of Urban Areas Order, 1991.

Under this issue, learned Counsel for the

Appellants submits that pursuant to Section 6(1) (a) of the Land Use Act, 1978, a Local Government cannot issue a certificate of occupancy to any person in respect of land in an urban area. He contends that Plots no. 11, 34, 39, 40 and 41, the subject matter of the dispute, are situated in an urban area close to the Ngeji District Head of Gadaka town, known as Gudi Emirate Council of Fika Local Government. He refers to the evidence of the Chairman, PW1, who admitted under cross-examination that the plots in dispute were in an urban area.

Counsel submits that the head of Gadaka town is one of the six (6) District Heads classified as urban areas by the Order of the Military Governor of Yobe State in 1992. That lands within five (5) kilometers radius from the official residences of the District Heads are officially declared as urban areas by the Yobe State of Nigeria Gazette via Land Use (Declaration of Urban Areas) Order, 1991, Vol. 2 Schedule II. Reliance is placed on Section 3 of the Land Use Act, 1978 and Salati V Shehu (1986) LPELR-2986(SC) 1, 6.

Counsel submits that, in proof of their title to the plots of land in dispute, the Respondents relied

solely on the allocation letters issued to them by Fika Local Government. However, he contends that they were wrongly admitted in evidence as Exhibits A, B, C, D, E, F, G and H and wrongly relied upon by the trial Judge, even when PW1 stated that the plots were situated in an urban area.

Counsel submits that by Section 3 of the Land Use Act (supra), a Governor of a State is enjoined to designate parts of the area of the territory of the State as constituting land in an urban area, by an Order published in a Gazette. It was therefore pursuant to this that the Military Governor of Yobe State enacted an Order published in the Yobe State of Nigeria Gazette via the Land Use (Declaration of Urban Areas) Order, 1991, Vol. 2 Schedule II. Counsel therefore submits that it is beyond doubt that the disputed plots fall within a designated urban area of Gadaka town.

Counsel submits that a Court is enjoined to take judicial notice of subsidiary legislation such as the Yobe State of Nigeria Gazette via the Land Use (Declaration of Urban Areas) Order, 1991, Vol. 2 Schedule II. Therefore, he contends that the trial Court was wrong when it failed to take judicial

notice of the said Order and this has occasioned a miscarriage of justice.

Counsel also submits that the trial Court failed to evaluate the evidence before it to arrive at a just decision. In this regard, it failed to address the issue of whether a Local Government can allocate and issue a customary right of occupancy to any individual in respect of land in an urban area. Instead, it was influenced by sympathy and sentiment to give its decision in favour of the Respondents. He submits that sentiments have no place in the administration of justice. It is a hard matter of law, facts and circumstances. Reliance is placed on Onwunala V Uche (2010) 2 NWLR (Pt. 1179) 582, 608; Suleman V COP (2008) LPELR-3126(SC) 20, per Niki Tobi, JSC. Counsel therefore submits that there was a substantial misdirection by the trial Court due to a sentimental adjudication, which has occasioned a miscarriage of justice.

In response, learned Counsel for the Respondent submits that parties are bound by their pleadings. Thus, evidence adduced on facts not pleaded, go to no issue – Nwano V Obaze (2012) All FWLR (Pt. 605) 231, 257, B-E. Based on this, Counsel contends that the

issue discussed herein was not pleaded or canvassed before the trial Court. Thus, it amounts to a fresh issue which requires the leave of Court to be raised in this Court, Failure to obtain the prerequisite leave renders the issue incompetent – Malizu V Asst. COP (2002) 7 NWLR (Pt. 767) 527, 530-531.

In addition, Counsel submits that the issue of whether or not the land in dispute was in an urban area was not pleaded before the trial Court. Thus, any evidence related to this goes to no issue as parties are bound by their pleadings -Nwano V Obaze (supra).

However, Counsel submits that assuming without conceding that issue two is competent, the evidence adduced through PW1 shows that the Layout within which the land in dispute lies, was demarcated by the Ministry of Land and Survey and handed over to the Local Government to carry out the process of demarcation. Therefore, from the facts on Record, Fika Local Government was mandated to allocate the plots in the demarcated Layout by the Ministry of Land and Survey.

Counsel further submits that, assuming without conceding that the demarcation was carried out by Fika Local Government, no evidence

was placed before the trial Court establishing that the area in question was an urban area at the time it was demarcated in 1995. He argues that the evidence of PW1 given under cross-examination in 2016, stating that the land in dispute was close to Gadaka market, and that Gadaka market was in an urban area at the time he testified, does not establish that the land was in an urban area at the time of its allocation to the Respondents in 1995. He relies on Chinda V Amadi (2002) 7 NWLR (Pt. 767) 505, 522, F which held that, the question of whether a piece of land is in an urban area or not, is not a matter of fact.

In a brief Reply on points of law, learned Counsel for the Appellant submits that this issue was pleaded in paragraph 5 and 7 of the Plaintiffs’ Joint Statement of Claim (at page 5 of the Record). Thereafter PW1, under cross-examination, stated that the land is close to Gadaka market and Gadaka market is in an urban area. Relying on Bamgboye V Olarewaju (1991) 4 NWLR (Pt. 184) 132, 155, Counsel submits that evidence led during cross-examination on issues joined, is not inadmissible merely because such evidence is not supported by pleadings

of the party eliciting the evidence.

Counsel also submits that the issue of whether Fika Local Government has power to allocate land that forms part of an urban area, was canvassed before the lower Court when Counsel for the Appellants, in the Defendants’ Final Address (at page 46 of the Record), posed the following question: “The question now is, can a Local Government allocate and issue Customary Right of Occupancy to any individual in respect of lands in an urban area?” Counsel therefore submits that an issue which was canvassed at the trial Court does not need the leave of this Court before it is raised.

RESOLUTION OF ISSUE TWO
I must say straightaway that this issue has been properly raised before this Court, having been pleaded in paragraphs 5 and 7 of the Joint Statement of Claim of the Respondents and evidence of same having been elicited through the PW1 under cross-examination. Secondly, being an issue of law, it was duly raised by the Appellants’ Counsel in his final address to the trial Court. Therefore, this Court can look into it.

On the substance of the issue however, which is, whether a Local

Government Council can issue a certificate of occupancy in respect of land in an urban area, indeed Section 6(1) (a) of the Land Use Act, 1978 provides as follows:
“It shall be lawful for a Local Government in respect of land not in an urban area to grant a Customary Right of Occupancy to any person or organization for the use of land in the Local Government Areas for agricultural, residential and other purposes.”
Since the trial Court, after highlighting the issue in its Judgment (at page 61 of the Record), did not proceed to address it, possibly by inadvertence, since it is an issue of law, I will step into the shoes of the trial Court by virtue of Section 15 of the Court of Appeal Act, 2004, and look into the issue raised thereby.
By Section 6(1) (a) of the Land Use Act (supra) therefore, Local Governments are empowered to grant customary rights of occupancy in respect of land not in urban areas. Section 3 of the same Act provides for the authority that is mandated to designate areas of the State as urban areas. For ease of reference, it provides:
“3. Subject to such general conditions as may be specified in that behalf

by the National Council of States, the Governor may for the purposes of this Act by order published in the State Gazette designate the parts of the area of the territory of the State constituting land land in an urban area.”
Thus, by a combination reading of Sections 3 and 6(1) (a) of the Land Use Act, a Local Government only has power to grant certificates of occupancy in respect of land not in an urban area. This is the Law.
In the instant Appeal, learned Counsel for the Appellants has contended that the Military Governor of Yobe State by the Yobe State of Nigeria Gazette via the Land Use (Declaration of Urban Areas) Order, 1991, Vol. 2 Schedule II, has designated the area where the plots in dispute are situated as an urban area. He has therefore contended that the trial Court should have taken judicial notice of this Gazette as a subsidiary legislation, by virtue of Section 122 of the Evidence Act (supra), even though the Gazette was not produced in evidence before the trial Court.
However, a similar argument was canvassed in the case of Ogu V Nwaobia (2000) FWLR (Pt. 6) 922, and it was held as follows:

“Whether or not a particular piece of land in dispute is within an urban area and so subject only to the jurisdiction of the High Court is a matter of evidence. It is not only by looking at a map or plan that an urban area can be determined. The evidence of a surveyor will have to be adduced or a map tendered to explain the area designated “urban area”… It is not enough for Counsel to stand up in the Court and simply state that the disputed piece of land is within an urban area without leading evidence to establish that fact.”
Also, the apex Court in Adene V Dantunbu (1994) 2 NWLR (Pt. 328) 509, 525, held:
“It is not only by looking at a map or plan that an urban area can be determined. The evidence of a surveyor who is an expert in that field can be relied upon.”
See also Min. of Land & Survey Yola V Sangere (2018) LPELR-45986(CA); Haruna v. Yaro (2016) LPELR-41554(CA) 11-13, F-B; Dweye V Iyomahan (1983) 2 SCNLR 135; (1983) NSCC 393, 396; (1983) 8 SC 76.
Thus, by the decisions of the apex Court as well as those of this Court, it is settled law that even though Section 122(2) (a) of the Evidence Act (supra) provides that

the Court shall take judicial notice of subsidiary legislation, in instances where the issue before the Court is the determination of particular areas designated as urban areas by the Governor of a State, such an issue must be established by evidence in the event of a dispute as to whether or not an area in dispute is in an urban area. The rational for this is that some expertise is required in the reading and interpretation of the map of the area so designated, which expertise does not lie in the bosom of the Court or even Counsel representing the parties, but in a qualified Surveyor.
From the Record of Appeal, no attempt was made by the Appellants to produce any proof before the trial Court that the plots of land in dispute were situated in an urban area, which would have taken away the power of Fika Local Government to grant certificates of occupancy, as it did to the Respondents. Indeed, neither a map/plan was tendered nor was a Surveyor called in to testify in the interpretation of such a map. Instead, the Appellants have relied on the evidence of the PW1 elicited under cross-examination, who has not been shown to be a Surveyor; as well as his

submissions in his final Counsel’s address at the trial Court. The mere assertion of the Appellants’ Counsel in his final address that the plots were in an urban area cannot suffice as proof that the plots of land in dispute are in an urban area. The evidence of a Surveyor through whom the map of the area is tendered is required in proof of the assertion that the land in dispute is in an urban area.
Based on these findings therefore, the answer to issue two is that pursuant to Sections 3 and 6(1) (a) of the Land Use Act, 1978, Fika Local Government cannot grant to a person a right of occupancy over land situated in an area that has been designated an urban area by the Governor of Yobe State. However, the Appellants were unable to prove by evidence that the plots of land in dispute were situated in an urban area and therefore removed from the area of jurisdiction of Fika Local Government. Consequently, I resolve issue two also against the Appellants.

One final word. Counsel for the Appellants has accused the trial Court of basing its decision on sympathy and sentiment, instead of on law, facts and circumstances, in giving its decision in

favour of the Respondents. Therefore, alleging a misdirection of law.
In the light of this allegation, I have searched through the length and breadth of the Judgment of the trial Court, and I am hard put to find any basis for this accusation. Nothing therein suggests the invocation/application of sympathy or sentiment on the part of the learned trial Judge in his evaluation of the case and ultimately, in finding in favour of the Respondents.
Counsel are therefore admonished that words are important. It is not enough for Counsel to simply bandy around accusations without substance against the learned trial Judge. Language is the tool of the lawyer. Therefore, it must be used with both precision and integrity.

Having resolved both issues for determination against the Appellants, the Appeal is bereft of merit. It fails and is dismissed.
Accordingly, I affirm the Judgment of the High Court of Justice, Yobe State in Suit No. YBS/HC/PT/12CV/16, delivered on February 1, 2019 by I.W. Jauro, J.
I award costs of this Appeal to the Respondents against the Appellants in the sum of N100,000.00.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading before now the draft judgment just delivered by my learned brother JUMMAI HANNATU SANKEY JCA.
I am in full agreement with the reasoning and conclusion therein.
I also resolve the two issues identified in the lead judgment in favour of the Respondents.

A party relying on traditional history must prove it convincingly giving no room for gaps. See ANYANWU VS MBARA (1992) 5 NWLR (PART 942) 386, 399.

This the appellant failed to do. Also, the appellant asserted that the land in dispute was in an urban area over which a Local Government could not grant a customary right of occupancy. It was a bland assertion without any proof. The exact location of the land should have been proved through the evidence of a licensed surveyor as the Court would not speculate on the location.
I agree that this appeal lacks merit and deserves to be dismissed.
I abide by the consequential orders in the lead judgment.

EBIOWEI TOBI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, J. H. Sankey, JCA who in my opinion has identified the real issues covered in this appeal and adequately addressed same.

I agree with my Lord and I have nothing useful to add. I therefore adopt the judgment as mine. I abide by the consequential order therein.

Appearances:

Sule Yusuf, Esq., holding the brief of M.M. Ngumurumi, Esq. For Appellant(s)

B.M. Salihu, Esq. For Respondent(s)