EMMANUEL ARANDA v. HASSAN KELGUM
(2016)LCN/8305(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of March, 2016
CA/J/276/2014
RATIO
PRACTICE AND PROCEDURE: DECLARATORY ORDER; WHETHER THE ONUS LIES ON THE CLAIMANT OR PLAINFIFF TO SATISFY THE COURT THAT HE IS ENTITLED TO THE DECLARATION OF TITLE
The Courts have over the years laid down certain principles as guides in matters such as this where a claimant approaches the Courts to seek declaratory orders for title to land. The onus thus lie on such claimant or Plaintiff to satisfy the Court that he is entitled to the declaration of title on the strength of the evidence brought by him. He must rely on the strength of his own case and not on the weaknesses of defence case and if he fails to discharge the Onus on him the weakness in defendant?s case will not help him and the proper thing was for the Court to enter Judgment for the defendant short of a decree of title being made for such defendant, having not sought an order for declaration of title to himself. See: Kodilinye v. Odu (1935) 2 WACA 338; Adeniran v. Alao (2007) 92 LRCN 3253, 3267-3268. Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523 or (1991) 11 SCNJ 108; Iyayi v. Eyigebe (1987) 3 NWLR (Pt. 61) 523. Fasikun & Ors. v. Oluronke (1999) 2 NWLR (Pt. 589) 1 or (1999) 1 SC 16. Implicit in that statement is the duty on the plaintiff in a claim for declaration of title to land to prove:
(i) The identity of the land he claimed. See; Titilayo v. Olupo (1991) 7 NWLR (Pt. 205) 19 or (1992) 6 SCNJ 282; Odiche v. Chibogwu (1994) 7-8 SCNJ 317; Adambsa v. Odiese (1990) NWLR (Pt. 125) or (1990) 1 SC 219; Oke v. Eke (1982) 12 SC (R) 100 Ituadzo v. Adjei 10 WACA (1944) 274.
(ii) His root of title, stating the particulars of intervening owners of the land before him. See the decision in Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301; Oke Bola v. Molake (1975) 12 SC (Reprint) 46; Owlonda v. Ekpechi (2003) 9-10 SC 1. The proof required of him is of a standard of balance of probability or preponderance of evidence. See Section 133 (1) and 134 of the Evidence Act 2011 Cap E14 and decisions in Mogaji v. Odofin (1977) 4 SC 91; Kalyaoja v. Egonla (1974) 12 SC 55. per. SAIDU TANKO HUSSAINI, J.C.A.
EVIDENCE: WHAT THE PERSON WHOSE CLAIM IS FOUNDED ON TRADITIONAL EVIDENCE MUST PLEAD
Where a claim is founded on traditional history evidence, the person claiming it must plead relevant facts as to constitute his root of title. If a claimant traces his root of title to a particular person he must go further to show how that person came about his own title or had his title vested in him. There has to be a chain of devolution of interest in a claim founded on traditional history evidence as held in Ikagbunam v. Eunice Onwubaya (2007) All FWLR (Pt. 345) 379-387; Ogunleye v. Omi (1990) 2 NWLR (Pt. 135) 745. This much is lacking from the pleadings and evidence of witnesses called for the appellant except evidence of PW1 which revealed that the land at Kalindi was cleared by Phongi Ashange said to be plaintiff’s grandfather. But this is not the pleading or the averment of the plaintiff in his amended statement of claim hence that piece of evidence coming from PW1 as to who founded the land at kalindi and how it was founded should be discountenanced as unpleaded facts. See: Anambra State Environmental Sanitation v. Ekwenem (2009) 7 SCNJ 1; Amodu v. The Commandant Police College (2009) 7 SCNJ 65. per. SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
EMMANUEL ARANDA Appellant(s)
AND
HASSAN KELGUM Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the leading Judgment): This appeal and cross appeal is sequel to the Judgment of the High Court of Justice of Gombe State delivered on the 21st March, 2014 in Suit No. GM/91/2010 between the Parties named herein.
The Appellant as the plaintiff suing for himself and on behalf of ARANDA FAMILY took out a writ of summons at the said High Court and claimed against the defendant, Hassan Kelgum, sued by himself and on behalf of their family, all the reliefs as per the indorsements in the Writ of Summons and the Statement of claim dated and filed on the 25th March, 2010. The defendant is now the respondent in this appeal.
Upon the Writ of Summons and statement of claim being served, the respondent filed his defence and counter claim. The appellant also sought and was granted leave to amend his Statement of claim in consequence of defence and counter claim being served on them. No effort was made by the respondent to amend his Statement of defence to bring same in line with the amended Statement of claim hence the suit was heard based on the pleadings as follows:-
1. The amended statement of
claim granted on 12/11/2013.
2. Statement of defence and counter claim deemed filed on the 2/8/2010.
3. Reply to the Statement of defence and counter claim deemed filed and on the 8/1/2011.
By the Statement of claim as amended the appellant claim all the reliefs at Paragraph 14A-D as follows:-
“The plaintiff and siblings in their claim are aggrieved with the defendants interference and lying (sic) of claim in their pieces of land and claim as follows:-
(A) A declaration of title to the pieces of land lying and situates at Kalindi and Lakarat dispute by defendants in favour of the Plaintiff.
(B) Perpetual Injunction restraining the defendant and his privies from further encroaching on the land I dispute.
(C) General damages of N500,000.00 against the defendant.
(D) Cost of this action.
The defence and counter-claim of the respondents is couched in the following terms:-
“By the foregoing developments the defendant has suffered serious damages.
WHEREFORE the defendant counter-claims against the Plaintiff as follows:-
(i) A declaration that the disputed lands originally belongs to Ta?andoji the
defendant’s grandfather and that the Plaintiff?s family are only customary tenants to the defendants whose tenancy is determinable at the defendant’s pleasure.
(ii) A (sic) order of Court that the Plaintiff forfeit their right to further enjoy the erstwhile tenancy having challenged the title of their Landlords which act amounts to trespass ab initio.
(iii) The sum of N2 Million as general damages for trespass.
(iv) On (sic) Order of perpetual injunction restraining the Plaintiff either by himself, his family members, his servants, agents and or privies from further committing further acts of trespass on the defendants family land.
(v) The cost of prosecuting the case.
The Plaintiff in turn, upon the receipt of the Statement of defence and counter claim served on him filed a Reply as reflected in the record of appeal at pages 53-56.
The case thereafter went into hearing with the calling of evidence of witnesses by parties of both sides.
?The case for the Appellant, briefly put is that the Aranda family are the exclusive owners of the two farmlands at Kalindi and Lakarat upon which the respondent have trespassed and are
selling portions of those farmlands to strangers. The appellant however concede that the farmlands at Pokolin and Palareng belong jointly to the two families of the appellant and respondent?s grandfathers both of whom cleared those two pieces of land and cultivated them together.
For the respondents, who denied the claim, their own case is that they are the original owners of the farmlands in dispute which were cleared by their ancestor, Kwaje Ta’andoji, said to be a warrior at the time and for which reason many people sought refuge with him and came under his protection inclusive of the family of the appellant and thus the respondent have since continued to accommodate and relate with the family of the appellant whom they regard as customary tenants on the farmlands in dispute.
At the close of evidence of parties on both sides and counsel final addresses, the trial Court delivered judgment and dismissed the claim and counter claim respectively.
Not satisfied with the decision of the Court below the plaintiff appealed to this Court on 5 (five) grounds by virtue of the Notice of Appeal dated and filed on the 19th June, 2014. By the same
Notice of Appeal the Plaintiff also seek for an order setting aside the decision of the Court below and for this Court entering Judgment for the appellant in terms of an order for declaration of title to the disputed two farmlands at Lakarat and Kalindi.
There is also a cross Appeal against the same decision filed out of time at the instance of the respondent with leave of this Court.
The Notice of cross Appeal registered as CA/YL/89/2015 contains 4 (four) grounds of appeal but since these grounds are not reflected in the Record of Appeal before us I crave your indulgence my lords to reproduce the grounds hereunder stated with the particulars thus:-
“GROUND ONE
The Gombe State High Court erred in law by placing much reliance on the evidence of unreliable witnesses particularly DW6 Peter Kara to deny the Cross-appellant declaration of title and other reliefs as claimed in the counter claim especially the Kalindi land.
PARTICULARS
i. The parties to the case traced their respective root of title in the disputed lands to different individuals by their pleadings.
ii. There was evidence on record as to how the cross-appellant’s
family has exercised various acts of ownership over the said lands without let or hindrance.
iii. The evidence of witnesses that the parties share a common inheritance stop short of establishing their common origin as to prove common inheritance over all lands derived from a common ancestor particularly the Kalindi farmland.
GROUND TWO
The Gombe State High Court misdirected itself in the appraisal of evidence of DW7 when he stated that if the Respondent had asked him for a farmland he would have given him and they wouldn’t have come to?Court; to mean an admission that they have a common inheritance thereby occasioned a miscarriage of justice.
PARTICUALRS
i. The parties all pleaded different root of title whereby the appellant explained how the Respondent’s family have come to be associated with their family over the years because of the exploits of the grandfather Ta’andoji. See Paragraph 3 (b) & (c) of the Statement of defence/counter claim.
ii. The cross-appellant maintained that they have been trying to go along with the respondent’s family despite the fact that they have different roots or origin. See Paragraphs 4, 9, 11
and the evidence of DW7.
iii. The fact that cross-appellant’s family has tolerated the Respondent’s family over the years does no ipso facto create a common heritage between them.
Therefore the answer during cross-examination that if the Respondent has asked for a farmland he would have shown him did not deviate from the fact they do not have a common inheritance as of right.
GROUND THREE
The Gombe State High Court erred in law when it considered the case of the Respondent as Plaintiff based on evidence that was not properly placed before it thereby occasioned a very serious miscarriage of justice.
PARTICUALRS
i. By Order 2 of the GOMBE State Practice Direction 2012, a Writ of Summons shall be accompanied by (i) a Statement of Claim, (ii) List or initials of witnesses (iii) Written Statement on Oath of witnesses and (iv) List of documents or exhibits to be used.
ii. The initial Statement of claim accompanying the writ 25/6/2010 contained the aforementioned documents as seen on pages 5-19 of the record.
iii. This was amended by a Motion on Notice dated 12/12/2011 which contained statement on oath of only witnesses annexed
as Exhibit A and an amended list of witnesses which is contained at page 68 of the record.
iv. There was a further amendment via Motion dated 13/5/2012 with only one witnesses Statement on Oath and another amendment list of witnesses as contained at pages 73-75 of the record.
v. After the close of evidence and Defendant’s final address, the Respondent again amend his Statement of claim via a Motion dated 11/02/2013 and filed on 18/10/2013.
vi. This last amend Statement of claim upon the respondents case was decided had no accompanying statement on Oath or list of witnesses and there was no indication that the older documents were adopted.
vii. The trial Judge evaluating the Respondent?s case as contained on page 196-200 relied on the old documents accompanying the already amended Statement of claim.
GROUND FOUR
The whole decision is unreasonable, unwarranted and cannot be support having regards to the weight of evidence placed before the Court.”
At the sitting on the 25/1/2016, this Court was invited to consider the request of the respondent in Appeal No. CA/J/276/14 to consolidate two appeals namely Appeal No.
CA/J/276/2014 between Emmanuel Aranda v. Hassan Kelgum with Appeal No/ CA/YL/87/2015 between Hassan Kelgum v. Emmanuel Aranda. This request for the consolidation of the two appeals was considered and granted without much ado and thereafter the appeal and Cross-Appeal were taken and argued together at the hearing.
Even though the appeal and cross appeal respectively, were initiated by two different or separate Notices of appeal, the proceedings giving rise to the Judgment appealed against are the same and this is as encapsulated in the record of appeal compiled and transmitted to this court on 17th October, 2014 but deemed as having been compiled and transmitted on the 16/3/2015 as the relevant record of appeal and Cross appeal respectively.
Learned counsel in the two appeals thereafter filed and exchanged their respective briefs of argument. I intend to consider and address the appeal and cross Appeal one after the other beginning with Appeal No. CA/J/276/2014.
[A] APPEAL NO. CA/J/276/2014 BETWEEN: EMMANUEL ARANDA AND HASSAN KELGUM.
From the 5(five) grounds of appeal subsumed in the Notice and grounds of appeal, the Appellant distilled the
following 3 (three) issues in his brief of argument thus:-
1. Whether the learned trial Judge did not err when he failed to declare the Lakarat and Kalindi Lands to the Appellant in the face of the pleadings and evidence before it (Distilled from Grounds 1 and 2 of the Notice and grounds of Appeal).
2. Whether it was not the Respondent who presented a contradictory case through its witnesses particularly DW6 Peter Kara (Distilled from Grounds 3 and 4) of the Notice and Grounds of Appeal.
3. Whether the Appellant did not prove his case on the preponderance of evidence (ground 5 of the Grounds of Appeal).
On the other side is the lone issue formulated in the respondent’s brief of argument for determination in this appeal which is:-
Whether the Gombe State High Court was justified in holding that the Plaintiff has failed to prove his case on the balance of probability in the light of pleading and evidence led (settled from grounds 1, 2, 3, 4 and 5).
The appeal came up for hearing on the 25/1/2016. Chief C. Ubale, learned counsel for the appellant at the hearing adopted and relied on his brief of argument and all submissions
made thereto to urge us allow the appeal and set aside the decision of the High Court of Gombe State and grant the reliefs as contained in the Notice and grounds of appeal.
P. A. Aki, learned counsel for the Respondent similarly adopted his own brief of argument, and as expected has urged us to dismiss the appeal on account of failure on the part of the Appellant to prove his case at the trial Court.
Now, taking a dispassionate look at the two sets of issues as formulated in the respective briefs of argument of counsel and as referred to earlier, I am of the conviction that the issue formulated by the Respondent in his brief of argument is apt in the light of the Judgment appealed against. The Court below had reasoned and concluded that the appellant and the respondent respectively had failed to prove their claim and counter claim hence the order of dismissal. Thus it is for the appellant and the Respondent respectively to satisfy us in this appeal and cross appeal that the Judgment so delivered at the Court below is wrong in the sense that parties named herein have proved their respective claims to title relative to the two farmlands in dispute but
the Court below thought otherwise. I therefore endorse the lone issue formulated by the respondent in his brief of argument for determination which is:-
Whether the Gombe State High Court was justified in holding that Plaintiff has failed to prove his case on the balance of probability in the light of the pleadings and evidence led. (Settled from grounds 1, 2, 3, 4 and 5)
I am of the opinion that issues 1, 2 and 3 formulated by the appellant in his brief of argument can be accommodated under the lone issue formulated by the respondent.
?In arguing his appeal counsel to the appellant alluded to pages 10-11 of his brief of argument and evidence of witnesses called by the appellant in relation to the two farmlands in dispute at Kalindi and Lakarat and argued that by comparative analysis of the evidence for the appellant and those for the respondent, the case for the appellant is credible and yet the Court below dismissed it even when the Court failed to make any findings relative to the farmland at Kalindi. He urged us to allow the appeal and set aside the decision of the trial Court and affirm title in respect of the two (2) farmlands at Kalindi
and Lakarat in favour of the appellant.
The Respondent, speaking through his counsel has argued to the contrary stating that the Court below was right in dismissing the claim of the Appellant as it did. By reference to the amended statement of claim he argued that the appellant was not consistent in his pleadings and evidence led by him in support of his case at the trial Court. Learned respondents counsel made specific reference to the dichotomy the appellant attempted to draw between two families by reference to Aranda family as the family who exclusively cleared the two farmlands in dispute and thus is the family that is entitled to inherit those farmlands to the exclusion of Kelgum family. It was further argued by counsel that the appellant has in another breadth pleaded facts as would suggest that the two families have common historical origin or antecedent and thus are joint owners of 9 (nine) farmlands, inclusive of the two (2) farmlands in dispute. Reference was made to Paragraphs 1, 2, 3, 4 and 5 of the amended statement of claim and Paragraphs 6, 7, 9, 10 and 11 of the same amended Statement of claim to point out those inconsistencies in the
pleading of the Appellant. Respondent’s counsel further argue that evidence of witnesses called by the appellant did not help their case but made matters worse for them in terms of evidence that the Appellant was required to adduce to warrant a declaratory order being made in his favour over those farmlands. He argued that the Appellant as plaintiff failed to prove his case. He cited and relied on Kodilinye v. Odu (1935) 2 WACA 336; Adeniran v. Alao (2001) 92 LRCN 3253, 3267-3268.
Learned respondent’s counsel argued further that in the light of manifest contradictions which the Court below also pointed out, the Court was right to dismiss the claim citing decisions in Elegushi v. Oseni (2006) 133 LRCN 263; Eyo v. Onuoha (2011) 193, 195 LRCN 38; Taiwo v. Ogundele (2012) 208 LRCN 1. He urged us therefore to dismiss the appeal as the appellant had failed to establish exclusive title to himself and members of his family.
The Courts have over the years laid down certain principles as guides in matters such as this where a claimant approaches the Courts to seek declaratory orders for title to land. The onus thus lie on such claimant or Plaintiff to
satisfy the Court that he is entitled to the declaration of title on the strength of the evidence brought by him. He must rely on the strength of his own case and not on the weaknesses of defence case and if he fails to discharge the Onus on him the weakness in defendant?s case will not help him and the proper thing was for the Court to enter Judgment for the defendant short of a decree of title being made for such defendant, having not sought an order for declaration of title to himself. See: Kodilinye v. Odu (1935) 2 WACA 338; Adeniran v. Alao (2007) 92 LRCN 3253, 3267-3268. Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523 or (1991) 11 SCNJ 108; Iyayi v. Eyigebe (1987) 3 NWLR (Pt. 61) 523. Fasikun & Ors. v. Oluronke (1999) 2 NWLR (Pt. 589) 1 or (1999) 1 SC 16.
Implicit in that statement is the duty on the plaintiff in a claim for declaration of title to land to prove:
(i) The identity of the land he claimed. See; Titilayo v. Olupo (1991) 7 NWLR (Pt. 205) 19 or (1992) 6 SCNJ 282; Odiche v. Chibogwu (1994) 7-8 SCNJ 317; Adambsa v. Odiese (1990) NWLR (Pt. 125) or (1990) 1 SC 219; Oke v. Eke (1982) 12 SC (R) 100 Ituadzo v. Adjei 10 WACA (1944)
274.
(ii) His root of title, stating the particulars of intervening owners of the land before him. See the decision in Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301; Oke Bola v. Molake (1975) 12 SC (Reprint) 46; Owlonda v. Ekpechi (2003) 9-10 SC 1.
The proof required of him is of a standard of balance of probability or preponderance of evidence. See Section 133 (1) and 134 of the Evidence Act 2011 Cap E14 and decisions in Mogaji v. Odofin (1977) 4 SC 91; Kalyaoja v. Egonla (1974) 12 SC 55.
The concept of balance of probability rests on the credibility of the witness or witnesses and the evidence adduced which must be worthy of truth and to be believed having regard to situational circumstances which must be proved. See: Abdullahi v. Suleiman (2011) LPELR-9219 (CA).
The question put gain is whether the appellant proved his case as the plaintiff before the Court below? Was the Court right in dismissing his case?
In the amended statement of claim the facts relied upon by the appellant as germane to his case are pleaded at Paragraphs 3-13 thus:-
“3. The Plaintiff’s and Defendant’s grandparents cleared and cultivate the
farmland know and called Pokolin and Polareng together.
4. The Plaintiff’s claims are that the pieces of the land lying and situate at Kalindi and Lakarat were exclusively cleared and cultivated by the Aranda family to the exclusion of the Kelgum family.
5. That he defendants later disallowed plaintiff’s siblings from entering the farmlands at Pokolin and Pokereng and later selling same while the farmlands are no more.
6. That haven sold the farmlands at Pokolin and Pokereng and other farmlands they now started lying claim to the pieces of farmlands at Kalindi and Lakarat.
7. The Plaintiff avers that the Defendant and his siblings have no share at all in the two farmlands have taken over seven (7) farmlands exclusively.
8. The plaintiff avers that they are of Miyama Shaduma or Keleng of which the Defendants are of a different maternal lineage.
9. The plaintiff avers that most of the siblings including himself work at different cadre of Government and not mostly at home and the Defendants want take advantage of it and take over all the (9) nine farmlands.
10. The plaintiff aver that there use to be nine farmlands belonging to
them with the defendants as a clan.
11. The Plaintiff aver that the defendant being the serving eldest son of the Kelgum family permitted his children and other siblings to sell most of the farmlands without the consent of the Aranda’s
12. The plaintiff further aver if allowed to continue the Aranda’s will be left with any farmland at all.
13. The Plaintiff avers that he will lead evidence of common boundary neighbors who know only his parents the Aranda’s on these farmlands but not the Defendants.”
Further to the above are the averments in the Reply to the Statement of defence and counter-claim by which it is shown that the appellants and Respondents family have common ancestral origin traceable to one Mintang said to be the progenitor of the two groups. I refer in particular to the averments at Paragraph 2 [A] and [B] and 3, 4, 5, 7 and 11 of the Reply.
?Before I proceed any further you will permit me my Lords to make a few remarks as to the attitude of indifference as shown by the Respondent who in spite of the leave sought to amend effected on the appellant’s Statement of claim which leave was granted on 12/11/2013 to bring
statement in line with his evidence by the introduction of new facts at Paragraphs 7, 8, 9, 10, 11, 12, 13 & 14 in the amended statement of claim, respondent did not deem it necessary to effect changes to his own pleadings to bring it in line with the amended statement of claim at pages 130-131 of the record. It is expedient for the respondent to take that line of action and amend his statement of defence as a consequence to the amendments made to the Statement of claim. See: Achike & Anor. v. Osakwe & Ors. (2000) 2 NWLR (Pt. 646) 631. I do not therefore subscribe to the submission made by the appellant or his counsel arguing on his behalf in his brief that by this failure of the appellant to effect such consequential changes to the statement of defence, the respondent has/had admitted facts pleaded at Paragraphs 7, 8, 9, 10, 11, 12 & 13 of the amended statement of claim without more. This my view is premised on the nature of the claim before the trial Court. It is a claim for title to land. It is not an ordinary claim. The Appellant who was the plaintiff at the trial Court sought a declaratory order that he is entitled to the two (2) farmlands
at Kalindi and Lakarat. Title to land cannot be decreed on the basis of admission only as argued by counsel for the appellant in his brief. He must show and prove by evidence that he deserves it, see: Governor of Kwara State v. Alhaji Lawal (2007) 13 NWLR (Pt. 1051) 387; Ezeokwonkwo v. Okeke (2002) 11 NWLR (Pt. 777) 1, 10; Adeleye v. Olona Motors Nig. Ltd. (2002) 8 NWLR (Pt. 769) 445, 460; Folorunsho v. WAEC (2011) All FWLR (Pt. 556) 422, 489-490.
So, what is the nature of the case that the appellant put forward at the trial Court for a claim of title to the two (2) farmlands at Kalindi and Lakarat?
I will start with his pleadings. I have just referred to the amended statement of claim reproduced above. In support of those averments, the appellant also called evidence of 8 (Eight) witnesses including himself who testified as PW7.
From the combination of facts averred in the pleadings and evidence of witnesses, the claim is confined to two (2) farmlands at Kalindi and Lakarat which are the same farmlands over which the respondent filed his defence and launched his counter claim. For clarity of purpose and understanding there is the need to set
out in full facts averred in the pleadings of the defendant. His statement of defence and counter claim is at pages 31-33 of the record thus:
“STATEMENT OF DEFENCE/COUNTER CLAIM
SAVE AND EXCCEPT as is herein expressly admitted the defendant denies each and every material allegation of fact contained in the plaintiff?s statement of claim as if each were set down and traversed seriatim.
1. The defendant denies Paragraph 1 of the statement of claim to the extent that the plaintiff is only a trouble maker but does not have the mandate of the Aranda’s family to do what he is doing.
2. Paragraph 2 of the statement of claim is hereby admitted while Paragraph 3, 4, 5, 6, 7 & 8 are denied entirely.
3. (a) In further response to Paragraph 3-5 the defendant shall contend that Kwage Ta’andoji who is the great grant father of the defendant was a warrior (Barde) and that every body in Komta that knows the history of the area knows that he was the one that forms the family that is today called Miyema Shanduma or Kwage Ta’andoji lived, died and was buried as a warrior.
(b) The Plaintiff shall lead evidence to prove that Ta’andoji gave
birth to Kilgum and Ambore. That Anbore is the father of Danja and Hussaini while Kilgum gave birth to Salati and Hassan. This family tree does not include the Plaintiff family whose origin revolves around Ponja, Aranda and Kure who are not the siblings of Ta’andoji. It was this Ta’andoji that cleared all the lands now referred to in the plaintiff’s claim. In fact one of these places has a Fadama that up to date called Pokuli Ta’andoji (meaning the Fadama of Ta’andoji).
(c) Because of this virtue of Ta’andoji as a warrior, many people identified with him and that is how the Plaintiff’s family came to be identified as belonging to Miyame Shanduma and they have continued to enjoy that blessing till date even sharing things in common including farmlands to the point that people know them as belonging to the same family with the defendant.
(d) The defendant shall contend during trial that the Plaintiff are only customary tenants on Ta’andoji lands as they have no common origin with him.
5. In response to Paragraph 5 and 6, the defendant shall contend that rather it is members of the plaintiff’s family that have continued to sell the Defendant’s
family land. To be precise, Jama’a Aranda and Dauda Dogo and others have sold various portions of lands at Pokolin. The Defendant has never sold any piece of what would be regarded as their family property to anybody.
6. The defendant shall lead evidence to prove that it was the then Billiri/Kaltingo local Government that at one point in time acquired their family land without any compensation and made a layout therein whereby people were allotted plots of land on the defendant’s family land not that the defendant sold the land to anybody.
7. The defendant denied Paragraph 9-11 of the statement of Defence and in response there to shall contend during trial that Plaintiff’s siblings were around all this while. That people like Jama’a Aranda, Dando Dogo and Dauda Dogo who are part of the Plaintiff’s siblings have never left home to any place since they were born.
8. In further response to Paragraph 10 the Defendant shall contend that he knows the boundary and neighbours of all the farms now in dispute in the following manner:-
– Lakarat Lands shares boundary with the following, East is Haliru (now Sale), West is Idi Buti, North is a road with
Inuwa across the road.
– Kalindi land has the following neighbours:- Mallam Afude, Buba Kolo, Adamu Angulu (where Amos Katsina now is), Salihu, Aliru, Yakubu Haruna and Bakare Ali.
9. The defendant shall contend that before now they have never denied the Plaintiff work on any of their family land as they have come to see them as brothers even though they don’t have ancestors. However now that they are trying to even exclude them from what originally belongs to them. Plaintiff are in breach of the good relationship they have enjoyed over the years
COUNTER CLAIM
By the foregoing developments the Defendant has suffered serious damages WHEREFORE the Defendant counter claims against the plaintiff as follows:
i. A declaration that the disputed lands originally belongs to Ta’andoji the Defendants grandfather and that the plaintiff’s family are only customary tenants to the Defendant whose tenancy is determinable at the Defendant’s pleasure.
ii. A order of Court that that the plaintiffs forfeit the right to further enjoy the erstwhile tenancy having challenged the title of their Landlords which act amounts to trespass ab initio.
iii.
The sum of N2 Million as general damages for trespass.
iv. On order of perpetual injunction restraining the plaintiff either by himself, his family members his servants, agents and or privies from further committing further acts of trespass on the defendant family land.
v. The cost of prosecuting the case.”
In support of his defence and counter claim for or over the two farmlands the defendant called evidence of DW1-DW7 including himself who testified as DW7 but the Court below, not impressed by the evidence of witnesses for the parties on both sides, in the review of the whole case, held that neither party was entitled to his claim or counter claim and thus dismissed the case of each one of them.
Learned counsel for the Appellant in his brief has contended that the Court below had brushed aside all issues of facts and evidence as they relate to the farmland at Kalindi and thus failed to make any finding thereto but had confined itself only to the farmland at Lakarat to dismiss the case of the appellant. It is the learned counsel?s belief as argued by him that the appellant had proved his case of claim to title of the two farmlands on
the balance of probability and urged us therefore to affirm title for the appellant on those farmlands and set aside the decision of the Court below and allow this appeal.
There is the need to first examine this claim of the appellant because if indeed the Court below failed to consider aspects of his case before reaching a conclusion, the danger in such exercise is that proceedings are voided on account of want of hearing or fair hearing and the Court would have failed in its duties of having to consider all issues placed before it for determination. The judge of a Court must demonstrate a full dispassionate consideration of all issues raised and canvassed before it. Failure of the Court to do this will lead to a dent in the case on appeal. See: Samba Petroleum Ltd & Anr. v. UBA PLC (2010) 6 NWLR 530, 531; Spring Bank Plc v. Dokkin Ventures Nigeria Ltd (2012) LPELR-7983 (CA).
A look at the record of Judgment of the Court below particularly the findings made at pages 209-212 prove to be a dispassionate consideration of the case of the appellant as it relates to the farmlands, not only the farmland at Lakarat but the farmland at Kalindi. The Court
below made analysis of the case of the appellant relative to those two farmlands as can be seen at pages 209-211 of the record and then went ahead to observe at page 211 as follows:
“It is therefore clear that even the evidence called by the Plaintiff himself did not prove that the two farmlands at Kalindi and Lakarat were exclusive rely (sic) cleared and possessed by the Aranda family as contained in his pleadings…”
Thus the contention of counsel for the Appellant in his brief of argument that his claim to the farmland at Kalindi was not considered is clearly unfounded.
The next question I have to consider is whether the appellant as Plaintiff did prove his claim to exclusive ownership of those 2 (two) farmlands but which the Court below erroneously held otherwise in its Judgment?
I have earlier made reference to the extensive analysis and findings of the Court below at pages 209 – 211 of the record of appeal. I can only reiterate for the purpose of emphasis that the Court below in coming to the conclusions as it did to dismiss the case of the appellant, the Court took the view that:
(1) The Plaintiff/Appellant had not
proved that it was the Aranda family to the exclusion of the defendant/respondent or his family, who cleared the two (2) farmlands at Kalindi and Lakarat and took over possession and ownership of same.
(2) That the Appellant and the Respondents are related by blood as they both belong to Miyama Sanduma family and thus joint owners of the 2 (two) farmlands in dispute.
(3) That the appellant was not consistent in the case put forward by him at the trial Court relative to the 2 (two) farmlands at Kalindi and Lakarat.
I have myself read the judgment of the Court below and indeed the findings made at that Court at pages 209-212 of the record. I find it difficult to impeach any of those findings at the Court below. They stand solid like the rock of Gibraltar.
In an action for declaration of title to land, the Plaintiff must necessarily prove the identity of the land claimed by him. But he need not prove the identity of land claimed except in cases where defendant has joined issues over the identity of the land, the subject matter of claim as held in Adumba v. Odiese (supra). Parties in this case have not joined issues over the identity of the two
(2) farmlands in dispute. To the contrary, is the counter-claim of the respondents over the 2 (two) farmlands at Lakarat and Kalindi as a pointer to the fact that the farmlands in dispute are known to both sides. See Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445, 476; Orunengimo v. Egebe (2007) 15 NWLR (Pt. 1053) 630; Idakwo v. Aliyu Ibrahim (2011) LPELR-8936 (CA). Where the defendant has not joined issues over the identity of the land in dispute no issues arises as to identity of that land. The plaintiff or appellant as in this case can therefore be said, has scaled the first hurdle in his quest for an order being made in his favour for declaration of title to land and can therefore proceed to the next question and that is, who owns the land as identified by parties on both sides and how did it come about? It is the appellant as plaintiff who must provide answers to those questions by way of evidence led by him through witnesses. In legal parlance, the Plaintiff must lead evidence to prove his root of title relative to the two (2) farmlands. He must lead evidence of intervening owners and how interest in the land in dispute has devolved unto the claimant.
See: Ukaegbu v. Nwololo (2009) 1 SCNJ 49.
The basis for the claim of the appellant reside with the Aranda family who is alleged to have cleared the two farmlands at Kalindi and Lakarat and cultivated it to the exclusion of all other groups. That is the averment in the amended statement of claim at Paragraph 4. By that stance taken in the pleadings, the appellant had charted a course for himself by which he was to prove his case and that is by way of traditional history evidence. And there is nothing wrong about that. Indeed one of the five ways by which the Plaintiff can prove his title to land as enunciated in the case of Idundun v. Okumagba (1976) 9-10 SCNJ 227 and followed by a plethora of other decided cases including Adewuji v. Odukwe (2005) 7 SCNJ 227, 237; Balogun v. Akanji (2005) 4 SCNJ 101, 109-110; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Kyari v. Alkali (2001) 6 NSCQR (Pt. 2) 819, 845, 846, is proof by Traditional evidence. The others are by way of:
(2) Proof by production of documents of tile duly authenticated
(3) Proof by acts of ownership extending over a sufficient length of time numerous and positive as to warrant the
inference that the person is the owner.
(4) Proof by acts of long possession;
(5) Proof of possession of connected or adjacent land in circumstances probable that the owner of such, connected or adjacent land would in addition be the owner of the land in dispute.
By the pleadings at Paragraph 4 of the amended statement of claim, no particular person was named or identified as the person who founded the two (2) farmlands in dispute from among members of Aranda family nor particulars of intervening owners pleaded to establish how those lands have devolved over the years to the Appellant and his family members. Mention was made in the Plaintiff’s Reply to the Statement of defence and counter claim of one MINTANG said to be founder of Plaintiff’s family. The term founder of family, is in my opinion not coterminous with neither is it the same as the person who first acquired or founded a given family land. I think this distinction has to be made. A founder of the family is the progenitor of that family. That formation may not be tied to any property rights or interests. On the other hand where a particular piece of land is in issue in the family, it
is usually traced to an individual founder who first acquired the land. See: Echi & Ors. v. Nnamani (2002) 8 NWLR (Pt. 667) 1 or (2000) 5 SC 62. The person named as Mintang was never presented by the Plaintiffs as the individual founder of the 2 farmlands in dispute.
Where a claim is founded on traditional history evidence, the person claiming it must plead relevant facts as to constitute his root of title. If a claimant traces his root of title to a particular person he must go further to show how that person came about his own title or had his title vested in him. There has to be a chain of devolution of interest in a claim founded on traditional history evidence as held in Ikagbunam v. Eunice Onwubaya (2007) All FWLR (Pt. 345) 379-387; Ogunleye v. Omi (1990) 2 NWLR (Pt. 135) 745. This much is lacking from the pleadings and evidence of witnesses called for the appellant except evidence of PW1 which revealed that the land at Kalindi was cleared by Phongi Ashange said to be plaintiff’s grandfather. But this is not the pleading or the averment of the plaintiff in his amended statement of claim hence that piece of evidence coming from PW1 as to who
founded the land at kalindi and how it was founded should be discountenanced as unpleaded facts. See: Anambra State Environmental Sanitation v. Ekwenem (2009) 7 SCNJ 1; Amodu v. The Commandant Police College (2009) 7 SCNJ 65.
Evidence of PW2, PW3 PW4 among others is essentially the evidence of boundary men who did not themselves trace the history of land in dispute to any person as the founder. The basis for an order for declaration of title to land proceed from the consideration that plaintiff or claimant has successfully pleaded and proved his root of title. If for reasons as in this case on appeal there is a dent in the case projected by the claimant by way of his root of title being proved convincingly, the claim should fail.
Equally significant is the finding of fact made at the trial Court that the appellant and respondent and other members of their family are related by blood and thus have used and cultivated the two farmlands in dispute together over the years as joint owners. Evidence of PW1, PW2, PW4, PW5 and evidence of DW6, DW7 among others, indeed lead irresistibly to this conclusion. Members of the respondent’s family and those of
the appellant see themselves as brothers hence appellant or members of his family have never been denied the use of family land by respondents. What other conclusion can be drawn from all these other than that as brothers with common historical origin they are joint owners of the farmlands in dispute. Relations of the Appellant and those of respondent both utilize the land in dispute to their benefits. Evidence has it on record that the elder brother to the respondent by name called Salati had at one time donated the portion of the land in dispute where a school is presently located or sited in Kalindi. This piece of evidence coming from witnesses for the appellant themselves goes to establish the extent the appellant and respondent families collaborated and worked together over issues relating to the two farmlands even before this case on appeal was filed at the Court below. So, where lies the fact and evidence from which inference can be drawn that it is the appellant and his family that are the exclusive users and owners of the land in dispute? I cannot find any not even from the fact pleaded in appellant’s amended statement of claim and the reply to the
respondent statement of defence and evidence adduced thereto. To the contrary is the averment at Paragraph 2 [A] of the Reply to the Statement of defence and counter claim. Appellant and respondent and their family members are indeed related by blood and have common ancestors. The combined effect to all these is that the appellant has not proved that himself and family members are exclusive owners of the two farmlands claim by them to warrant such a declaratory order being made hence the trial High Court came to the right conclusion when it dismissed the claim. Where the claim for declaration of title to land fails action for damages for trespass and injunction, as in the instant case on appeal invariably fails. I, accordingly affirm the judgment of the Gombe State High Court of justice in Suit No. GM/91/2010 delivered on 24th March, 2014. This appeal thus is accordingly hereby dismissed for lack of merit. Parties are to bear own cost.
Judgment in Appeal No. CA/YL/89/2015
BETWEEEN HASSAN KELGUM AND EMMANUEL ARANDA:
This Cross appeal is sequel to the leave granted in this Court on 25/6/2015 by which leave, the defendant filed
his Notice of Cross Appeal against the decision of the High Court of Gombe State in Suit N. GM/91/2010 between Emmanuel Aranda and Hassan Kelgum at the Registry of that Court. The Notice of Cross Appeal was transmitted thereafter to this Court on the 27/10/2015.
I have earlier set out the 4 (four) Grounds as contained in the Notice of Cross-Appeal pursuant to which Briefs of argument have since been filed and exchanged between counsel in the matter. The Cross-Appellant filed his brief of argument on the 5/11/2015 wherein he raised and argued 3 issues from the 4 Grounds contained in the Notice of Cross Appeal. Their counsel, Mr. P. A. Aki at the hearing of the cross appeal adopted appellant’s brief as his submission in the Cross-Appeal to urge us to allow same and grant the cross-appellant all the reliefs he had sought at the trial Court in his counter claim.
Chief C. Ubale, is counsel for the Cross Respondent. He filed the cross respondent’s brief of argument on 20/11/2015 and at the hearing he adopted the said brief of argument as his submission in opposition and urged us to dismiss the Cross-Appeal as merely academic and devoid of substance. Before
I proceed any further, I should say that facts giving rise to this Cross appeal are basically the same set of facts as those in the main appeal, a summation of which I have made earlier in my consideration of the main appeal and for which reason it is needless to repeat those facts here but adopt them.
What then are the issues in contention in this Cross Appeal? In the opinion of the Cross-Appellant the issues that arise for determination are three (3). The Cross Respondent agrees and adopted those three issues as raised by the Cross appellants, in his brief. The three (3) issues raised are:-
1. Whether the Gombe State High Court was right in deciding the case of the Respondent before it based on the amendment filed on 12/11/2013 without accompanying Statement of witnesses. Settled from Ground 3.
2. when (sic) the Statement of DW6 and Dw7 relied upon by the Court to form the basis of its Judgment has proved the Respondents case based on his pleadings and if not whether the testimonies of those witnesses as relied upon by the Court has changed the status of the disputed land to that of joint ownership as family land. Settled from ground 1 &
2.
3. Whether the decision of the Gombe State High Court dismissing the Respondent?s claim before it is not a decision against the weight of evidence. Settled from ground 4.
ISSUE NO. 1
Learned counsel for the appellant in arguing issue 1 (one) in his brief referred us to the provision of Order 2 Gombe State Practice Directions of 2012. He argued that the person taking out a Writ of Summons must necessarily comply with this provision hence he would be required to accompany with the Writ of Summons for purpose of filing, such other documents or processes as: (i) the Statement of Claim (2) List of Initial Witnesses, (3) Written Statement on Oath of Witnesses and (4) List of documents or Exhibits to be used.
Learned appellant’s counsel argued further that the Suit filed at the High Court was not decided based on the initial papers or processes filed at the Court but rather the several amendments, the last of which he said was filed at the Court after the address through a Motion dated 11/10/2013 and filed on the 12/11/2013. It was his argument or submission that after the amendment done to the Statement of claim, other processes
such as the witnesses’ Statement on Oath, list of witnesses should either be adopted or amended but this not having been done, it was wrong for the Gombe State High Court to rely on those processes as it did copiously in its Judgment.
To the learned counsel for the appellant the stand of the trial High Court negates the position taken by the apex Court regarding amendment of processes of Court and the effect of such amendments. Citing the decision in Agbabiaka v. Saidu (1998) 61 LRCN 4632, 4651 he submitted that once an amendment is ordered it dates back to the date the processes was initially filed hence any new amendment take precedence over old processes which by dint of the amendment are no longer material and cannot define the issue to be tried. Learned counsel further referred us to decision in Garan v. Olomu (2013) 220 LRCN (Pt. 1) 92 119; Okoro v. Okoro (2011) All FWLR (572) 1749, 1767. Before concluding his submission he was quick to point out the error committed by the trial Court in relying on witnesses’ Statement on Oath in considering the respondents claim and the Cross-Appellant’s counter claim before it as if they were valid Statements in support
of the main claim and in defence of the counter-claim so far as same were not filed along with the amended Statement of claim. He urged us to hold that this approach by the trial Court was wrong and same has occasioned a miscarriage of justice.
The view taken by the cross-respondent in his brief of argument in response to those submission is simple. To him, the ground of appeal giving rise to the issue being considered was a mere academic question. He referred us to Order 2 of the Gombe State Practice Direction of 2012. He continued and submitted that it was wrong to hold the view that in every case that a Statement of claim is amended, the witnesses Statement on Oath and list of documents that accompany the writ should also be amended or refilled.
While agreeing with the submission that every party in a case reserves the right to amend his process(s) before the Court or his pleadings at any stage of the proceedings he further submitted that such amendment must be with a view of assisting the Court in arriving at a just conclusion, citing Iyamabor v. Omovuri (2011) 26 WRN 78 R. I, 93.
Learned Cross Respondent argued further that a Practice
Direction, being a direction only and not a Statute cannot supercede the latter in the event that there was conflict between the two, citing decision in Okereke v. Yar’adua (2008) 34 NSCQR 11 and Buhari v. INEC (2009) 167 LRCN 1, 22-23 to urge us hold that the provisions of the Practice Direction cannot override the positive provisions of the High Court Civil Procedure Rules.
I do not need to undertake that journey to make a comparative analysis of whether the provisions of the Practice Directions of 2012 of Gombe State were in conflict with the provisions of the Gombe State High Court (Civil Procedure) Rules of 1991 when by the submissions of counsel for the appellant, he has clearly misconceived issues even by his own showing.
?The Practice Directions referred to by him is clear and
unambiguous in content under order 2. The provisions of Order 2 of the Gombe State Practice Direction 2012 is to the effect that in beginning of a Suit the Plaintiff/Respondent shall file his Writ of Summons and the same shall be accompanied with certain documents. The documents which are to accompany the Writ without which the registry shall not accept the case for
filing include:-
1. The Statement of claim
2. Witnesses’ Statements on Oath.
3. List of documents etc.
It is by the Writ of Summons that an action is commenced in matters begun by writ. The writ is thus the origin of that action by which the party on the other side is put on Notice. A Statement of claim does not commence an action even though it supercedes the writ.
The process or processes which must accompany the Writ of Summons at the point of filing the writ include the Statement of claim. It is this same process that was amended on the orders of the trial Court. It was not the Writ of Summons that was amended. If that were the case, the writ being the beginning of the case would call for the refiling of those other documents along with the amended writ. In this instance case, it was the Statement of claim and not the writ that was amended.
The Statement of claim not being the process that commences an action, its modification in the course of trial or hearing would not and should not necessitate other processes being refiled unless, if by virtue of the Statement claim being amended, there would be the need to call further or
additional evidence of witnesses to support any new fact introduced into the amended Statement of Claim. That is not the position in the instant case in this Cross-appeal. The Plaintiffs/Cross-respondent had only sought leave at the trial Court to amend his Statement of claim to accommodate evidence already elicited at the trial. I cannot therefore reason with counsel for the Cross-appellant that the trial Court acted on documents or processes which are no longer valid in arriving at the Judgment delivered by it. The appeal on this issue fails as the same is resolved in favour of the cross-Respondent.
ISSUE NO. 2
The question posed by issue No. 2 is whether the parties named in this appeal are indeed joint owners of the 2 farmlands in dispute, an issue which learned counsel for the cross-appellant has answered in the negative by reference to the pleadings of parties. To this end, he argued that the Court below was wrong to come to that conclusion that parties were joint owners of the two (2) farmlands by the reliance on the evidence of DW6 and DW7 to reach that conclusion citing the decision in Abubakar v. Joseph (2008) 160 LRCN 159, 197; Olubodun
& Ors. v. Lawal & Ors (2008) 161 LRCN 76 and Yusuf v. Adegoke (2008) 157 LRCN 172. Learned counsel further argued that there is nowhere that parties on both sides put forward a case of joint ownership of the two farmlands in dispute through the pleadings filed by each one of them but from the statement or evidence given by DW6. He argued that since the fact of joint ownership was not pleaded, the trial Court ought not to have relied on facts not pleaded as the findings of the Court have revealed at pages 212-213 of the record. The trial Court, it is argued cannot draw that inference from the evidence or statement of DW7 to come to such a conclusion. He argued further that the parties to the dispute have traced their root of title to different individuals through pleadings and that being the case, the facts relied on by the Court to see the disputed farmlands as family property for the two families was clearly misguided, a non-issue and same should be ignored by this Court.
Learned counsel for the Cross-respondent arguing per contra has submitted that facts and circumstances have been brought to bear to warrant a declaratory order for title being
made in favour of the Cross-respondent over the disputed farmlands at Kalindi and Lakarat. He argued that even from the evidence of witnesses called by the Cross-appellant i.e. DW6 and DW7, the Cross-respondent has proved his case of which the trial Court ought to have acted upon. He referred in particular to the evidence of DW7 at page 212 where Dw7 referred to the Plaintiff/Appellant/Cross-respondent as a son and Jama’a Aranda (PW6) as his younger brother. In reference to the evidence of Dw6 (Peter Kara) he argued that the Cross-appellant and the Cross-Respondent hail from the same Miyama Shaduma family and by reason of which the farmland at Lakarat was shared between them by DW6.
Learned Cross-respondent Counsel further argued that those are no evidence outside the pleadings as contended by counsel for Cross-Appellant. Rather by the abundant evidence on record from witnesses of both the Cross Appellant and those of the Cross respondent, the latter was/is entitled to Judgment on the 2 (two) farmlands being given in his favour. Learned respondent’s counsel urged us therefore to dismiss this Cross Appeal on this issue on the preponderance of evidence in
the light of failure by the Cross-Appellant to prove:
1. That the Cross-respondent was customary tenant as alleged
2. That the Cross-respondent have no common origin with the Cross appellant.
I have given careful thought to the submission of counsel on the other side on this issue. The Crux of the complaint covered by issue No. 2 in the Cross appellant brief of argument is the alleged reliance by the Court below on evidence adduced by witnesses on unpleaded facts, especially evidence of DW6 and DW7 to reach a conclusion and thereby dismissing the counterclaim of the Cross Appellant.
It is settled from a long line of decided cases, provisions in statute books as well as opinion of book writers as to, the place, position and purpose pleadings are meant to serve in matters begun by Writ of Summons. Pleadings being formal documents in which a party to legal proceedings set forth or responds to allegation of claims, denials or defence as defined in Black’s Law Dictionary 8th edition at page 1191, the use of pleadings as a means to put forward a case in the law Courts are thus regulated by certain precepts and guidelines. Being a form of
Notice to the party on the other side, pleadings must state material facts on which the party pleading it intend to rely, see Order 24 Rule 4 (1) of the High Court Civil Procedure Rules 1991 of Bauchi State applicable to Gombe State; Nasir v. Civil Service Commission Kano State (2010) 4 SCNJ 186. Pleadings must state facts concisely, precisely and accurately and no evidence can be led on facts not pleaded. See: Osuji v. Ekeocha (2009) 7 SCNJ 248. Awodu v. The Commandant Police College (2009) 7 SCNJ 65. Parties and indeed the Courts are bound by the pleadings before it hence evidence adduced in the course of trial which is not in conformity with pleadings becomes a non-issue and must be ignored by the Court. See: Abubakar v. Joseph (supra); Olubodun v. Lawal (Supra); Yusuf v. Adegoke (supra) Anyawu v. Uzowuaka (2009) 7 SCNJ 29; Agboola v. UBA (2011) 35 LNJ 208; Adekeye v. Adesina (2010) 12CNJ 233.
In relation to the matter on hand I want to believe that facts pleaded at Paragraph 9 of the amended Statement of claim are relevant. Also on point are Paragraphs 2A-B, 3, 4 and 5, 7, 11 of the Reply to Statement of defence and counter-claim.. I will endeavour to
reproduce those paragraphs of the pleadings thus:-
[A] STATEMENT OF DEFENCE AND COUNTER CLAIM
Paragraph “9. The Defence shall contended that before now they have never denied the Plaintiff work on any of their family land as they have come to see them as brother even though they don?t have common ancestors. However now that they are trying to even exclude them from what originally belong to them, Plaintiffs are in breach of the good relationship they have enjoyed over the years.”
[3] REPLY TO THE STATEMENT OF DEFENCE AND COUNTER CLAIM
Paragraph “2. The Defence in Paragraph 3 of Statement of Defence and Counter distorted the history of the family and fabricated falsehood. The history of the family is as follows:
[A] Mintang is the root of the family and he married two wives,
(i) First wife gave birth to Sanduma (A.K.A) Yila and Mela Mintang.
(ii) Second wife gave birth to Kwege (A.K.A. Tandoji) Mintang?”
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
(3) The oldest son of Mintang through his first wife is Shanduma which means Yila, Yila in Tangele means first Son while
second is Mela.
(4) The Plaintiff plead that in Tangele custom women are not counted in genealogical tree and it is the first wives (sic) children that maintain the family history
(5) Tangele never founded the family as he is a son to Mitang. He is only the first son of the second wife and there is no place called Pokwilla Tandoji and little is know of Tandoji.
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
(7) The Plaintiff plead that before Mitang married his second wife who gave birth to Tandoji, the first wife’s children were already grown up and farming by themselves and Tandoji was never a warrior nor a great farmer. He has never fought any battle.
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
(11) The Plaintiff plead that there is no way in Tangale custom or any African custom that a senior son will be customary tenant to a younger son or at all.”
At the trial Court, the defendant counter-claimant called evidence of witnesses through DW1, DW3, DW4, DW5, DW6 and DW7 to support his defence case and counter-claim, while the Plaintiff,
(Defendant to counter-claim) and now the Cross-respondent also led evidence of 8 (Eight) witnesses through PW1-PW8. From the combination of the evidence on record evidence of PW1, PW4, PW5, PW6, DW6 and DW7 among others, it is no longer in doubt that there is in existence a kind of relationship between the family of the Plaintiff and the family of the defendant. They are not just members of the same clan. The relationship between them goes beyond their clan. The two groups are members of the same extended family indeed the Plaintiff and his family members and Defendant’s family members are brothers who share common ancestral background as borne out and as graphically described in the family organogram and averred at Paragraph 2A of the Reply to the Statement of defence and counter claim, an averment which was not contradicted in the like manner by the defendant/Counterclaimant, (Cross-appellant) in their own pleadings. I hold therefore that the Plaintiff’s family or group and defendant?s family or group are not only related by the clan they both belong to but are blood brothers. Hassan Kelgum, speaking as DW7 cannot therefore be faulted when he referred
to Plaintiff’s family members as “brothers” or DW6 who also described the defendants and the Plaintiff as members of the same family/clan and thus are brothers. I can however fault the defendant as represented by Hassan Kelgum (DW7) and the Cross appellant herein who in spite of the facts and evidence still want to regard the Plaintiff (Cross-respondent) as customary tenants. His evidence fall short of those facts or circumstances as would lend credence to their claim that indeed the Plaintiffs and his family members over time have lived on the farmland in dispute as customary tenants and are thus tenants subject to certain conditions as shown in Mohammed Ojonu v. Salami Ajao (1983) 9 SC 22; Ejeanalonye v. Omabuike & Ors (1974) 2 SC 27; Makinde v. Akinwale (2000) 1 SC89. It is not unknown that there can be customary tenancy without the payment of tribute. See: Lawani v. Adeniyi (1964) NSCC (VOL. 3) 231, 233. This however is not the case put forward by the Cross-appellant. Consequently the claim or the contention that the Cross-appellants are customary tenants has no basis and same is discountenanced.
?The claim of Cross-Appellant to exclusive title or
ownership to the two farmlands in dispute stem from the facts that it was his Grandfather (Ta’andoji) who cleared those farmlands alone to the exclusion of other person hence he is now vested with title or ownership on or over the two farmlands.
The death of the original owner will lead to the property vested in him to devolve unto his successors or heirs. See Oyeni v. Adeleke (2008) LPELR-8463(CA); Tayo Ojo v. Chief Jerome Akinsanoye (2014) LPELR-22736 (CA). However, the claim of the Cross-appellant’s to exclusive ownership of the farmlands in dispute did not explain why members of the Cross-respondent’s family still reside, utilize and cultivate the farmlands in dispute together with other, members of Cross-appellant’s family if not that the two families are both descendants of their common ancestors who originally founded the farmland in dispute. It is in the light of that finding that the conclusion drawn at the Court below which is to the effect that the parties herein and members of the two families respectively are joint owners of the farmland in dispute, is correct in my view since that finding was drawn from primary facts and evidence on record
which I have earlier referred to. A Court of trial as well as this Court has power to draw and make inferences from the facts or pleadings in cases as this. See: Okonkwo v. Kpeje (1992) NWLR (Pt. 226) 633 or (1992) 2 SCNJ 290.
The Cross- Appellant(s) therefore, having not shown or proved at the trial Court and in this Court that the Cross-respondent family are Customary tenants must have this cross-appeal dismissed on this issue and I so resolve issue. No. 2 against them.
The third and final question earmarked for determination in this Cross-appeal is whether the decision of the Gombe State High Court is dismissing the Respondent and the Cross-appellant?s claims before it is not a decision against the weight of evidence.
I have gone through the respective briefs of argument for the Cross appellant and the Cross-respondent on this point. Submissions made by counsel in respect of issue No. 3 have been addressed in the course of my consideration of issue No. 2 in this Cross-appeal and elsewhere in the Appeal. I wish therefore to adopt all my conclusions therein as they are relevant to the question wh’ether the trial High Court was justified to
have dismissed the claim and the counter claim before it.
The law is indeed trite that in an action for declaration of title to land the onus is on the Plaintiff to prove his title to warrant a declaratory order being made, in order to succeed he must lead credible evidence and rely on the strength of his case and if he fails to discharge the onus on him his action must be dismissed as the weakness in defence case will be of no assistance to him. Authorities are legion on this point. See: Kodinlinye v. Odu (supra); Adeniran v. Alao (2001) 92 LRCN 3255, 5267-3268; Dakolo v. Rewane Dakolo (2011) 198 LRCN 1, 25 . It is very obvious that the Cross-appellant as the counter-claimant at the trial Court was unable to lead evidence to prove his claim even on the claim by them that the Cross-respondents are customary tenants. In the face of this failure, the trial Court was justified to dismiss the counter-claim in the same way the Court dismissed Plaintiffs’ claim. Accordingly, Issue No. 3 is similarly resolved against the Cross-appellant hence this cross appeal is dismissed on all issues canvassed before us. In effect the Judgment delivered at the High Court of
Justice Gombe State in Suit No. GM/91/2010 on 21/3/2014 between the parties named herein is affirmed. The Cross-Appeal is dismissed.
There is no order as to cost.
TIJJANI ABUDULLAHI, J.C.A.: I agree.
CROSS APPEAL NO. CA/YL/89/2015.:?I agree.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree.
CROSS APPEAL NO. CA/YL/89/2015: ?I agree.
Appearances
Chief C. Ubale, Esq.For Appellant
AND
P. A. Aki, Esq.For Respondent
