ETSU & ORS v. NNAKASHI & ORS (2022)

ETSU & ORS v. NNAKASHI & ORS

(2022)LCN/16497(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, April 11, 2022

CA/A/454/2019

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

ElfriedaOluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

1. ALHAJI NDALU ETSU 2. BABA KUDU 3. GIMBA KAFINTA 4. GOGO WUSA 5. HAJIA ASABE 6. TANKO ABUBAKAR ROGOTA 7. NDA LADAN (For Themselves And On Behalf Of Emigbezhi Family) APPELANT(S)

And

1. ALHAJI SANI BABA NNAKASHI 2. ALHAJI KOLO NASARAFU 3. ALHAJI YABAGI USMAN MASAGA 4. ALHAJI MANU WAKILI 5. YABAGI SACHI N.C.R.I 6. NDA UMARU 7. BALA SACHI RESPONDENT(S)

RATIO:

THE ESTABLISHMENT OF A CLAIM AND COUNTER-CLAIM BEFORE PROCEEDING TO DETERMINE THE COUNTER-CLAIM

It is pertinent to state that where there are claim and counter-claim, the proper thing to do is first to consider whether or not the claim has been established before proceeding to determine the counter-claim. In this, one agrees with the submission of the learned Counsel for the Respondents on the style adopted by the Appellants’ Counsel wherein he sought to discredit the counter-claim before submitting that the Appellants made out their claim. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

THE BURDEN OF PROOF RESTS ON A PARTY WHO ASSERTS A THING AND WILL FAIL IF HE DOES NOT ESTABLISH HIS CLAIM

The burden rests on a party who asserts a thing and whose case will fail if he does not establish his claim on the preponderance of evidence or balance of probabilities. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, ITAUMA V. AKPA-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

A PARTY MUST RELY ON THE STRENGTH OF HIS OWN CASE

A party cannot rely on the weakness of his opponent’s defence or the opponent’s ill-preparedness, but must rely on the strength of his own case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

A PARTY WHO SEEKS A DECLARATION OF TITLE TO LAND HAS THE BURDEN TO PROVE THE TITLE TO LAND

Where a party seeks a declaration of title to land, he has the burden to prove anyone or more of the five (5) methods of his acquiring the land as enunciated in the celebrated case of IDUNDUN V. OKUMAGBA 1976 6-9 SC 227 which was followed in ATANDA V. AJANI 1989 3 NWLR PT. 111 511 and KYARI V. ALKALI 2001 FWLR PT. 60 1481 amongst a host of others. The five (5) ways are separate and independent and proof of one shall suffice to succeed in a claim. The following are the five (5) ways:
i. By traditional evidence.
ii. By production of document of title.
iii. By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the owner.
iv. By proof of ownership of connected or adjacent land would be the true owner.
v. By acts of long possession and enjoyment of the land. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Niger State, Bida delivered by Hon. Justice Musa B. Abdul on February 19th, 2019, wherein the Respondents (Defendants/ Counter-claimants at the Court below) were declared the lawful owners of the land in dispute and the case of the Appellants (the Plaintiffs at the Court below) was dismissed.

At the Court below the Appellants through their Writ of Summons claimed as follows against the Respondents:
1. “A declaration that the land measuring approximately 35.068 hectares lying and situate along Rogota Road, Behind Water Board Tank beside Army Barracks, Bida, Niger State belongs (sic) Emigbezhi family who are the descendants of Mallam Ibrahim Emigbezhi.
2. A Declaration that the title to the said land vests only on the descendants of Mall. Ibrahim Emigbezhi.
3. A Declaration that the actions of all the defendants in entering the said land without permission of Emigbezhi family is illegal, wrongful and constitute an act of trespass to the said land.
4. An order of perpetual injunction restraining the defendants their agents, privies or anybody deriving authority from them from further interference on the rights and authority of the Emigbezhi Family who are the owners of the said land.
5. An order of the Court directing the defendants jointly and severally to pay the sum of Ten Million Naira (N10,000,000.00) as general damages for inconveniences suffered by the plaintiffs so far as a result of the actions of the defendants.
6. An order of the Court directing the defendants jointly and severally to pay the sum of One Million Naira (N1,000,000.00) to the plaintiffs as cost of litigation.

In brief, the case of the Appellants at the Court below is that they own the land in dispute which was a gift from the Etsu Nupe (Muhammadu Mallam) at that time to their progenitor, Mallam Ibrahim allegedly around 1901-1916 as a reward for killing the deer that was terrorizing the community at the time. That the Appellants’ grandfather appointed the 6th Appellant’s grandfather, one Baba Gbangba as caretaker of the land while the 7th Appellant’s grandfather was cultivating thereon and paid tribute to the Appellants’ grandfather. That went on until they found that the Respondents had acquired different interests on the land and in consequence their suit at the Court below.

On the other hand, the Respondents’ case is that the land is part of the land covering the northern and eastern part of Bida founded by Etsu Usman Zaki, the progenitor of one of the three ruling houses in Bida. That in the 70s one Alhaji Bagudu Chata, the family head at the time in the Etsu Zaki’s family appointed one Alhaji Dangana of Sachi village to take care of the land. The land was sold in 1987 to Alhaji Audu Abdullahi who sold to Muhammadu Sadiq Bagudu who in turn sold to Nma Abubakar who sold to some of the Respondents.

The matter went to trial, the Appellants had five (5) witnesses and the Respondent had six (6). The Court in its wisdom found in favour of the Respondents/counter-claimants and in consequence dismissed the Appellants’ suit.

Aggrieved by the decision of the Court, the Appellants have approached this Court with their Notice and three (3) Grounds of Appeal as contained on pages 179 – 182 of the printed Record transmitted to this Court.
The singular relief being sought is:
“An order setting aside the judgment of the lower Court delivered on 19th February, 2019 and in its place grant the reliefs sought by the Plaintiffs.”

In compliance with the Rules of this Court, both sides filed and exchanged their briefs. The Appellants’ brief dated June 24th, 2019, filed June 25th, 2019 and the reply brief filed June 28th, 2021 were both settled by Sebastine Chi Ugbogu Esq., who urged that the appeal be allowed. In response the Respondent’s brief dated March 4th, 2021 was filed June 21st, 2021 and deemed as properly filed and served on June 30th, 2021. It was settled by S. M. Zhigun Esq. who urged that the Appellants’ appeal be dismissed for lacking merit.

The Appellants submitted the following three (3) issues and the Respondents adopted Issue 1 thereof as sufficient for the determination of this appeal:
1. As between the Appellants and the Respondents who adduced more credible convincing and reliable evidence to prove title to the land (Ground 3).
2. Whether the Appellants provided enough material evidence before the trial Court to entitle them to all the reliefs sought (Ground 1).
3. Whether the Respondents prove their counter-claim on the balance of probability to justify the grant of same by the lower Court (Ground 2).

Having carefully perused the said Issues, one respectfully agrees that the first Issue will justly and fairly determine this appeal. Therefore I shall determine this appeal on Issue 1 by the Appellants.

NOTICE OF PRELIMINARY OBJECTION BY THE RESPONDENTS
The Respondents raised a preliminary objection to the effect that the three (3) grounds of appeal by the Appellants are incompetent for their failure to obtain the leave of the Court before filing as they are not grounds of law alone. He cited in support Section 242(1) of the 1999 Constitution which provides thus:
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”

He argued that the Appellants were wrong as they could not appeal as of right with the grounds of appeal not on law alone and in support cited the case of FIRST BANK OF NIGERIA PLC V. T.S.A INDUSTRY LTD 2010 15 NWLR PT. 1216 247.
I have very carefully considered the objection raised by the Respondents and the response by the Appellants as contained in their reply brief. Having so very carefully done, I must state straight away that the Appellants’ appeal is not caught neither does it come under the provision of Section 242(1) of the Constitution. It is an appeal against the final decision of the Niger State High Court which sat at first instance therefore Section 241(1) only applies as follows:
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”

The foregoing being the position, it is clear that the Respondent’s objection must fail cannot be sustained. It is hereby dismissed.

Having dealt with the preliminary objection the way is clear for the consideration and determination of the substantive appeal.

SUBMISSION MADE ON BEHALF OF THE APPELLANTS
Mr. Sebastine Chi Ugbogu Esq., for the Appellants submitted in the main that the evidence of the Respondents’ witnesses, the DW1 to DW6 failed to discredit the case of the Appellants as they failed to tender necessary documents in support of their defence such as the survey plan, purchase receipt and the only document tendered by them, Exhibit B, did not assist their defence or their counter-claim.

He asserted that the Court failed to evaluate the evidence placed before it and therefore reached a wrong conclusion in dismissing the Appellants’ case and urged this Court to evaluate the evidence in its place and cited in support the case of CHIEF AYOGU EZE V. BRIG. GEN. J.O.J. OKOLOAGU (RTD.) & 125 ORS 2010 20 WRN P. 80. He submitted that the Appellants relied solely on traditional evidence and properly proved same and cited in support the cases of ASANI SOGUNRO & 5 ORS V. AREMU YEKU & 2 ORS 2017 72 EJSC P. 45. He argued that the evidence of the Appellants’ witnesses that the land in dispute belongs to the Emigbezhi family was not discredited during cross-examination. That the Appellants fulfilled the conditions as laid down by the apex Court when relying on traditional evidence and the identity of the land was given with certainty in the evidence of the Surveyor by the survey plan. He submitted further that there being no contradiction in respect of the Appellants’ evidence in support of their case, the decision of the Court was wrong. Therefore, the Respondents trespassed on the Appellants’ land and should have been made to pay damages in that regard and for the cost of the suit.

Further in his submission, the learned Counsel argued that the counter-claim of the Respondents should have been dismissed as they had the burden of proof just as a Plaintiff to prove their case which they failed to do. In support, he cited the cases MICHAEL SUNDAY OROJA & 4 ORS V. EBENEZER ILO ADENIYI & 3 ORS. 2017 62 EJSC P. 1, ALHAJI ADAMU MAINA WAZIRI & 1 V. ALHAJI IBRAHIM GEIDAM & 4 ORS2016 51 EJSC P. 135 and Section 133 (1) of the Evidence Act 2011. And that there was no evidence in respect of the special damages they claimed which ought therefore to have been dismissed and cited in support the case of ALHAJI MUSA AJIGBOTOSHO V. REYNOLDS CONSTRUCTIONS CO. LTD. 2018 104 EJSC P. 92. In conclusion, he urged this Court to evaluate the evidence and grant the reliefs sought by the Appellants at the Court below.

SUBMISSION ON BEHALF OF THE RESPONDENTS
Mr. S. M. Zhigun Esq., for the Respondents submitted that the 1st to 5th Appellants failed to prove how the gift of the land in dispute was made to their family as there were no witnesses provided in respect of the actual handing over as required under customary law. In support, he cited the cases of ORIDO V. AKINLOLU 2012 LPELR-7857, EZENWORA & ORS. V. EZENNORA 2018 LPELR-43944 and AKINYELE & ORS V. ADEBAYO 2015 LPELR-24304 amongst others. He argued that one of the witnesses should have testified in that regard. One will quickly observe on who and who should testify for a party that, a party chooses his witnesses and cannot be dictated to on who and who to pick as witnesses as he will either fail or succeed as he prosecutes his case the way he chooses. He argued that the Appellants’ witnesses, the PW1-PW5 did not assist their case as there was no link between them and the history of the gift of the land to the Appellants. And that the Appellants failed to prove the three (3) conditions required in traditional evidence even as to how the land devolved from Etsu Muhammadu Makun orMallam Ibrahim to them and cited in support the case of IZUOJI V. AJUKWARA 1998 1 NWLR PT. 533 255.Consequently, he submitted that the Appellants failed woefully to prove all the important aspects of their claim.

He submitted that the Appellants are not permitted to be inconsistent in their case as they did in response to the Respondents’ Statement of Defence and counter-claim where they set up an entirely different case and averred that the Umaru Majigi ruling house had been in possession of the land and not the Appellants. In support, he cited the cases of EZE V. INEC 2017 EJSC VOL. 71, SYLVA V. INEC 2017 EJSC VOL. 65 and NGIGE & ANOR V. INEC & ORS 2014 LPELR-25413. He contended that the Appellants failed to prove the successive persons before the land got to them and in support cited the cases of ODI V. IYALA 2004 8 NWLR PT. 875 283 and EWO V. ANI 2004 3 NWLR PT. 61 610.

The learned Counsel asserted that the Respondents proved their counter-claim from Etsu Usman Zaki family and the evidence was not discredited by the Appellants. That possession of the land with the DW1 – DW4 was also established and that the DW6 testified on the traditional evidence of the Respondents’ ownership of the land. He therefore in that wise urged that the appeal be dismissed and the decision of the Court below be affirmed.

THE POSITION OF THE COURT
The sole issue for determination of this appeal as already adopted is issue no. 1 and is hereunder reproduced for ease of reference:
ISSUE NO. 1
“As between the Appellants and the Respondents who adduced more credible convincing and reliable evidence to prove title to the land.”

The sole issue will be considered in the light of the findings of the Court below having very carefully read all the processes of both sides and the Record before this Court.

The judgment in this appeal in the Record before this Court spans through pages 159-176. On pages 170 – 173 of the Record the Court reproduced the arguments of both sides and the issues formulated by them. In particular on pages 174 -176 of the Record the Court’s finding and conclusion are contained with the two issues formulated by the Court. The Court stated thus:
“l have carefully gone through the evidence adduced by the parties in this case and submission (sic) of the hearing counsel on both sides in my respective view; two issues are paramount for consideration of the Court”.
ISSUE ONE
“whether the defendant counter claimant have (sic) adduced credible and admissible evidence in support of the pleaded facts to entitle then (sic) to the reliefs sought in this case.
ISSUE TWO
“whether the defendant counter claimant have (sic) adduced credible and admissible evidence in support of the pleaded facts to entitle them to the reliefs sought in the counter-claim.”

Respectfully, the two foregoing issues as formulated by the Court in themselves could be misleading and it would appear that the Court misdirected itself thereby. In my view and humbly, issue one should have been in respect of the “Defendants to the counter-claim” and not the “defendant counter-claimant” as it refers to “this case” meaning the suit by the Appellants as the Plaintiffs’ and not the counter-claim. In one paragraph on page 174 of the Record, the Court evaluated and reached a conclusion in respect of the evidence in support of the Appellants’ (Plaintiffs’) case thus:
“In the plaintiff case, from the evidence adduced by the plaintiff mare impar … Evidence of PW1, PW2, PW3, PW4, and PW5 and Exhibit A relied upon by the plaintiff I hold the plaintiff have failed to adduced credible and admissible evidence in support of their pleadings to entitle them to the reliefs claim (sic) in paragraph 38 of the statement claim (sic). Accordingly plaintiff (sic) claim is hereby dismissed.”

On page 175 similarly in one paragraph, the Court evaluated and concluded in respect of the evidence in support of the counter-claim of the Respondents (Defendants Counter-claimants) as follows:
“In the …interest case, after a proper appearances of the evidence adduced by Defendants/counter-claimant more importantly testimonies of DW1 to DW6 and Exhibit B which was tendered and admitted in Evidence through DW5 Alhaji Kolo N…mu, the2nd defendant counter-claim. I hold that the defendant counter-claim…adduced credible and legally admissible evidence in this suit to entitle them …. Reliefs sought against the plaintiff in paragraph 43 of the statement of defence counter-claim. Accordingly judgment is by (sic) entered for the defendant counter claimant as follows.”

And judgment was therein entered in favour of the Respondents as contained on pages 175 to 176 of the Record.

Further and respectfully, doing justice and substantial justice at that to the claim and counter-claim of the two sides, the Appellants and the Respondents herein in my view and humbly, would require that this Court should consider the evidence as contained in the Record before this Court for a proper evaluation of same according to the relevant principles of law in order to reach a fair and just decision between the parties one way or the other.

In that regard, I therefore proceed in the determination of the sole issue with the pertinent question, firstly, whether or not the Appellants at the Court below established their case in the light of the elementary and firm principle of standard of proof, incivil matters which is, preponderance of evidence or balance of probability.

The claim of the Appellants was in the main for a declaration that the land in dispute put approximately as 35.068 hectares as therein described belongs to the Emigbezhi family, the descendants of one Mallam Ibrahim Emigbezhi.

In a claim for declaration as aforesaid it is a bounden duty on the Appellants who made the assertion as owners of the land in dispute to prove that indeed they are and entitled to their claim. From their testimonies as in the Record one finds as follows:
The PW1, one Muhammadu IsahManzakwa, testified to the effect that over thirty (30) years ago his family got permission from one AlhajiNdagwangba of Rogota village via Technical College Bida to farm on the Appellants’ land along Manzakwa village and they gave as tribute pepper harvested to Ndageangwa which he also gave part to the Emigbezhi family. See pages 14, 15 and pages 127 to 128. He was not discredited as to his knowledge of the land and that his family actually farmed there with the permission of the Emigbezhi family for over 30 years.

The PW2, one Muhammadu NdagSaokiara testified that he is a grandson to Abdullahi Muhammed from Umaru Majigi ruling house, that Etsu Muhammadu Makun entrusted the land of Umaru Majigi ruling house to his grandfather Muhammadu Umaru who gave the portion in dispute to the Appellants’ grandfather, Mallam Ibrahim, the adjoining to the grandfather of the Nengus and that is why the Nengus share boundaries with the Emigbezihi family land. That he became the custodian of the entire land of the Umaru Majigi ruling house after his father and that the Usman Zaki ruling houses’ land is not around the Army Barracks and Eyagi Technical College. Further, he testified that the portion given to Dangana is not part of the land in dispute but part of Sachi land.See pages 79-81 of the Record. Under cross-examination on pages 128 to 129 of the Record PW2 maintained that he is of the Umaru Majigi ruling origin through his grandfather and that he knew the boundaries of the lands between the Umaru Majigi and the Masaba ruling houses though never been on the land and the former is located around Rogota village. His evidence was not discredited.

PW3, Tanko Abubakar Rogota testified that he is from Rogota village, the son of Abubakar Ibrahim and caretaker of Emigbezhi family land. That he grew to know his grandfather as caretaker of the Emigbezhi family land and that he became the caretaker after his father’s death in 2004. That he collected tributes from Alhaji Bookun and Yandagi till 2011 when they stopped farming on the land. He testified further that the land shares boundary with the Nengemu people. That he informed one Likali a member of the Emgbezhi family in 2012 when he saw some Fulani cattle rearers on the land and eventually they discovered that the Respondents were on the land without permission. He maintained that the land was given to the Appellants’ father, Mallam Ibrahim by Etsu Muhammadu Makun forkilling a notorious deer. See pages 9-10 of the Record. At cross-examination, he confirmed knowing the land and mentioned features thereon as well as mango trees and the boundary with the Negenus and the Army Barracks. His testimony was not discredited. See pages129-130 of the Record.

PW4, Surveyor Moses LegboKolo testified as the registered Surveyor that prepared the survey plan of the land in dispute having been engaged by the Emgbezhi family. That the land is about 35.068 hectares, shares boundary with the Army Barracks, Alhaji Abdulmaleek and Nengenus’ land and it belongs to the family. See pages 16-17 of the Record. Under cross-examination he confirmed visiting the land before the drawing, confirmed the Fulani settlement, the trees and tendered the plan of the land, Exhibit A. See pages 131-133 of the Record.

PW5, Ndaladan testified that the Emgbezhi family gave a large portion of land to his grandfather to farm as the Baba Mohammed through one Baba Gbangba of Rogota the caretaker of the land. That his grandfather farmed till 1995 and at his death his late son, Mallam Ladan, the PW5’s father took over till his death in 2009. None of the family continued the use of the land thereafter. He testified further that the land belongs to the Emgbezhi family. See pages 12-13 of the Record. At cross-examination, he maintained that he knew the land in dispute, which is located along Rogota road. His evidence was not discredited. See pages 133-134 of the Record.

I shall now consider the defence of the Respondents against the foregoing evidence of the Appellants.

DW1, Bala Sachi, 7th Respondent, testified that the land was in possession of his father to take care of but could not remember the specific time, a portion was and was not given to his family as a gift by Alhaji Audu he claimed. He testified that they had to go to Rogota village to see the PW3, Tanko Abubakar Rogota in respect of lands in Rogota since according to him, “is only his father that knows the boundaries of the land in dispute” and Tanko’s father shares boundary with the land in dispute. See page 136 of the Record. His evidence confirmed that of the PW3, Tanko Rogota’s.

DW2, Alhaji Yabagi Usman Masaga, he bought his own portion of the land in dispute from one Alhaji Nma Abubakar, Nma 212, who bought from one Sadeeq, Bida Local Government Chairman, who bought from Audu. There was no evidence to show the amount he spent on erecting the beacons. See pages 137 of the Record. His evidence in my view and humbly has not in any way discredited the claims of the Appellants.

DW3, Nma Tetengi testified as a witness particularly to an alleged sale from one Alhj. Bagudu Chata to his brother Alh. Audu Abdullahi for N2,400 who in turn sold to the said Hon. Sadeeq, the land that shares border with Nengus and the Army Barracks. The receipt of purchase was rejected and was so marked. See pages 140 – 142 of the Record. His evidence was in respect of sale of a portion of the land in dispute and did not discredit the claim of the Appellants save for the story of the deer which he denied any knowledge of.

DW4, Umaru Yusuf Sani, agent on land transactions testified in the main on the sale of the portion sold to Alhj. Audu Abdullahi and as a son in-law to the said Alhj. Audu he was approached by the family to help sell the land after the father-in-law’s demise. He stated that he had no idea about the land in dispute. See pages 142 – 143 of the Record. In my view and humbly, his evidence failed to discredit the Appellants’ position.

DW5, Alhaji Kolo Nasarafu, 2nd Respondent, also testified in the main in respect of the sale of the portion of land he bought with his son and the mango trees and beacons he put thereon. He acknowledged Tanko Rogota, the PW3 as being neighbor to the portion they bought which in my opinion strengthens the testimony of the PW3. See pages 146-147 of the Record. The testimony of the DW5 did not discredit the Appellants’ case.

DW6, Yusuf Bello, testified in the main that he is of the Usman Zaki ruling family, son of Alhaji Bagudu Chata who sold to Alhj. Audu Abubakar. He testified that the land of the Usman Zaki’s family covers from Lemu towards Minna road, Badeggi, Army Barracks, Sachi, NCRI to Bantigi up to Eyagi Technical College. He did not witness the sale but his elder brother was given all the particulars relating to the sale of lands belonging to the family by his father, Alhaji Chatta. See pages 156 -157 of the Record. In my considered view, the case of the Appellants has not been discredited by the testimony of the DW6.

Having carefully and painstakingly gone through the evidence before the Court as in the foregoing, one with respect is unable to agree with the finding and position of the Court below. Proof of an assertion or claim in civil matters is not beyond reasonable doubt but based on preponderance of evidence or balance of probability. In my considered view, the portion of the Appellants’ story of their grandfather/progenitor killing a deer was not successfully discredited by the Respondents and whether or not it was sufficiently established should be considered along with the generality of evidence which preponderates in favour of the case of the 1st to 5th Appellants. In my humble view, the evidence remains that the Emigbezhi family is part of the Umaru Majigi ruling house. Therefore, the inheritance the land in dispute, from their progenitor/grandfather was not farfetched and is credible. They properly gave the identity of the land they claimed with the survey plan Exhibit A, and the site of the land in dispute was confirmed by some of the witnesses of the Respondents bringing about the certainty of the portion of the land in dispute, in particular the testimony of PW3. The Appellants in my considered view proved their claimto the land in dispute and are entitled to their claim.

Having found as in the foregoing, the counter-claim of the Respondents fails, it was not proved. The special damages awarded were wrongly done, not to mention that the Court failed in its judgment to consider the principles for the award of special damages, which are specific pleading and strict proof of what is claimed, which was not done by the Respondents.

In the light of the foregoing, the only issue is resolved in favour of the Appellants. The appeal in the result succeeds and is hereby accordingly allowed. Having allowed the appeal and for the purposes of clarity, it is important that it is clearly stated that the cost of litigation which is in the category of a special damage cannot be awarded just for the asking. General damages shall be in the sum of Five (5) Million Naira only. The judgment of the Niger State High Court delivered on February 19th 2019 is hereby set aside.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.

I am in agreement with the reasoning and the conclusion that the appeal be and it is hereby allowed.

I abide by all the consequential orders as made in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I read the draft judgment just delivered by my learned brother, ELFRIEDA O. WILLIAMS-DAWODU, JCA. I agree with the reasoning and adopt the conclusion therein as mine.

Appearances:

Mr. Sebastine Ugbogu For Appellant(s)

Mr. Sayeti Babakolun For Respondent(s)