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IBRAHIM v. ADAM (2022)

IBRAHIM v. ADAM

(2022)LCN/16819(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, May 05, 2022

CA/K/400/2019

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

PETER IBRAHIM (AND ALL FAMILY) APPELANT(S)

And

YAKUBU GARBA ADAM (AND ALL FAMILY) RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

It is settled law that there are five ways of establishing title to land. This is set out in the case of Idundun v. Okumagba (1976) NMLR 200 at 210 Per Fatayi Williams JSC (as he then was) OBM as follows:
“1. By traditional evidence.
2. By production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved.
3. By act of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner. (See Ekpo v. Ita 11 NLR 680).
4. By acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land (See Section 45 of the Evidence Act).
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner or such connected or adjacent land would in addition be the owner of the land in dispute.”
However, each of the five ways stated above suffices to establish title to a disputed piece of land. See also the following cases: Piaro v. Tenalo (1976) 12 SC 31; Balogun & Ors v. Akanji & Anor. (1988) Vol. 19 1 NSCC 180; (1988) 1 NWLR (Pt. 70) 301; Onwugbufor & Ors v. Okoye & Ors (1996) 1 NWLR (Pt. 422) 252; Mogaji v. Cadbury Nig Ltd. (1985) 2 NWLR (Pt. 7) 393; Alii v. Alesinloye (2000) 6 NWLR (Pt. 600) 177; Eze v. Atasie (2000) 10 NWLR (Pt. 676) 450.
PER TALBA, J.C.A.

WHETHER OR NOT THE PLAINTIFF CAN RELY ON THE WEAKNESS OF THE DEFENDANT CASE IN AN ACTION FOR DECLARATION OF TITLE 

It should be noted that the weakness of the defendant’s case in a land matter, seeking for a declaration as in this instant case, does not assist the claimant’s case. He swims or sinks with his own case. See Animashaun v. Olojo (1991) 10 SCNJ 143; Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176; Ekundayo v. Baruwa (1965) 2 NMLR 211; Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362; Dumez Nig Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361. This Court and the Apex Court did held in plethora of cases that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlements to the declaration by his own evidence. 

However, it is a notorious fact that the first settler or founder of a parcel of land becomes the owner of the land and head of subsequent settlers on the land. His descendants derive title to the land from him. It accords with common sense that the head or ruler of the settlement at any given time should be one of the descendants of the founder of the land. See Titiloye & Ors. v. Olupo & Ors. (1980) – (1993) 2 S.C.J.L Page 1043. PER TALBA, J.C.A

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Customary Court of Appeal Kaduna State delivered on the 21st of March, 2019 in Appeal No. CCA/KAD/KAF/87A/2018.

The respondents as Plaintiffs instituted an action against the appellants before the Customary Court Kubacha (hereinafter referred to as the trial Court). The respondent’s claim is for declaration of title to land. The claim of the respondents at the trial Court reads.
“The plaintiffs are naturally of Baja village in Kashe district and claiming jointly and severally against the defendants for the following reliefs:
1. A declaration of title over the land which constitutes Baja village in Kushe district where they have lived for over a hundred years without any hinderance or incumberence from either the defendants or any other person.
2. An order of this Hon. Court of perpetual injunction restraining the defendants by themselves, their children, relations or any other person claiming or who may claim through them by whatever names he or she or they may be called from entering, attempting to enter and in tempering with the said land either by farming, cutting of any economic tree thereon or doing any other acts that is or will be against the interest of the plaintiffs being a land or properties of the plaintiffs.
3. An order of this Hon. Court awarding N1 million cost against the defendants severally and jointly in the event of any encroachment on the land.

​The appellants/defendants denied the claims. The respondents called five witnesses to establish their claim and each of the five witnesses was cross-examined before they closed their case. The appellants opened their defence by calling three witnesses. After the close of the defence, the Court ordered for a visit to locus and the report of the visit to locus was read in open Court. Thereafter the learned counsel, addressed the Court. The trial Court entered judgment in favour of the respondents. Being dissatisfied with the judgment, the appellants appealed to the Customary Court of Appeal (hereinafter referred to as the lower Court). After hearing the appeal the lower Court dismissed the appeal for lacking in merit and upheld the judgment of the trial Court. Being aggrieved by the judgment of the lower Court, the appellants appealed to this Court vide a notice of appeal filed on 17th day of April, 2019. The notice of appeal contains eleven (11) grounds of appeal. At the hearing of the appeal on the 7th day of February, 2022, Faridat Yusuf of counsel adopted the appellant’s brief of argument filed on 11th of February, 2020 and the reply brief filed on 23rd of March, 2020. L. M. shall Assistant Chief Legal Aid Officer adopt the respondent’s brief filed on 10th of March, 2020. The appellant’s counsel urged the Court to allow the appeal and set aside the judgment of the lower Court while the respondent’s counsel urged the Court to dismiss the appeal.

From the eleven (11) grounds of appeal the appellants formulated two issues for determination by this Court thus:
“1. Whether the affirmation of the decision of the learned trial Judge by the Customary Court of Appeal of Kaduna State is sustainable in view of their misplacement of the burden of proof on the appellants and in view of the nature and quality of the traditional evidence adduced by the respondents and their witnesses in this case.
2. Whether the learned justices of the Customary Court of Appeal of Kaduna State were not in error in taking into consideration issues that are extraneous to the claim before the trial Court in affirming the decision of the trial Court.”

The respondent submitted three issues for determination thus:
“1. Whether the Customary Court of Appeal was right in upholding the findings reached by the trial Court that the respondents proved their claim by traditional history and by acts of ownership by being in possession of the disputed land which is a whole village.
2. Whether the Customary Court of Appeal was right in holding that Baja and Chigwau are two different communities/villages.
3. Whether the Customary Court of Appeal was right to hold that there was nothing before them to the contrary that what the trial Court recaptured in its judgment in respect of the visit to the locus in quo was not what transpired.

​I have carefully considered the issues submitted by both parties and I am of the view that the issues submitted by the appellant are apt for the determination of this appeal. Before considering the issues I should mention that the respondents raised a preliminary objection in their brief of argument but the respondent’s counsel failed to adopt the arguments contained therein. It is settled law that when an issue is not placed before the Court of Appeal, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all over the place. Accordingly, therefore, the preliminary objection is discountenanced.

While submitting on issue one the appellant’s counsel contended that it is well settled that the plaintiff who is claiming a declaration of title to land in dispute in the absence of a counter-claim bears the burden of establishing by the preponderance of evidence his claim to the land. It is for the plaintiff to prove his case with credible evidence and he will fail if he does not succeed in establishing his claim, before the Court. He relied on the following cases to buttress his argument. Egonu v. Egonu (1978) 11–12 SC 111 at 130; Kodilinye v. Mbanefo Odu 2 WACA 336 at 337; Josiah Akinola & Another v. Fatoyinbo Oluwo & 2 Ors. (1962) 1 All NLR 224 at 225.

He submitted that in the instant case, the burden of proof was on the respondent who claimed the declaration of title to the farm land in dispute and not on the appellants herein. See Elufisoye v. Alabetutu (1968) NMCR 298 at 302. The learned counsel referred to page 124 of the record where the lower Court held thus;
“From the evidence, we are of the candid opinion that the appellants, who are claiming the land, did not prove their claim. The evidence adduced by the appellants is not cogent, credible or reliable, which no Court can confidently rely on…“

Learned counsel submitted that the appellants did not seek for a declaration of title to the land in dispute. The lower Court shifted the onus of proof in this case to the appellants contrary to the principles enunciated in the case of Egonu v. Egonu (supra). And the misplacement of the burden of proof on the appellant thus led to the miscarriage of Justice in this case. After a review of the evidence of PW1 and PW2, the appellant counsel submitted that the evidence of PW1 and PW2 did not establish who founded the land in dispute and how it was founded. Their evidence did not establish that the root of title of the disputed land resides in the respondents.

​Learned counsel submitted further that PW1 and PW2 gave inconsistent evidence and the Court is not entitled to prefer one of the differing accounts as against the other, as the Court cannot pick and choose from which part of evidence to rely on in order to determine the true facts. See Boy Muka v. The State (1976) 10 – 13 SC 305 at 325. Notwithstanding the inconsistent and conflicting evidence of PW1 and PW2 the lower Court held at page 122 of the record as follows:
“The respondent and their witnesses gave credible evidence as to the traditional history of the land in dispute”

​Learned counsel submitted that the inconsistent and conflicting evidence cannot be regarded as credible traditional history. Learned counsel submitted that the evidence of PW3 shows that he knows little or nothing in this matter as the evidence lacks originality, precision consistency and coherency. Learned counsel submitted that the traditional evidence of PW4 is consistent with his evidence in cross-examination as well as in re-examination, that the disputed farmland is a gift. His evidence shows that the respondents are not the original owners of the land in dispute, although his evidence contradict that of PW1 and PW2. Learned counsel submitted further that PW5 is not consistent in his evidence. In one breath he stated that his parents’ father, Adams was given the land in dispute. In another breath, he stated that his father Garba told him that Adams deforested the land in dispute. PW5 does not know his root of title to the land in dispute. During cross-examination, he disagreed with the evidence of PW4 who stated that the land in dispute was a gift to the parent of the plaintiff now respondents. The learned counsel contended that a party relying on evidence of traditional history must lead clear and unambiguous evidence of his root of title to the land in dispute. He is required to show in his evidence whose ancestors of his are and how they came to own and possess the land and eventually passed it to him. See Akinloye v. Eyiyola (1968) NMLR 92 at 93; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1.

​He submitted that the nature and quality of the evidence adduced by the respondents has failed to satisfy the above principle as there are inconsistencies in the evidence adduced by the respondents as well as contradictions therein. Notwithstanding the inconsistent and conflicting evidence of the respondent and their witnesses the lower Court held at page 122 of the record as follows:
“The respondents and their witnesses gave credible evidence as to the traditional history of that land in dispute”

Learned counsel submitted that this finding failed to take into consideration the evidence of the witnesses called by the respondents. The inconsistent and conflicting evidence cannot be regarded as credible traditional history. The material inconsistencies in the evidence adduced by the witnesses of the respondents goes to the credibility of those witnesses. In such a situation, the Court is not allowed to pick and choose between the two versions of the evidence of the witnesses. The several versions must be rejected as none can be taken as the truth. Learned counsel submitted that in view of the inability of the respondents to prove their root of title to the disputed land and in the light of the evidence of DW3 the respondent’s purported acts of ownership and possession becomes an act of trespass to the land in dispute. A party who has failed to prove his root of title to a disputed land cannot turn round to rely on acts of possession or to support a non-existent root of title with act of possession. It is equally not permissible to substitute a root of title that has failed with acts of possession which could have been derived from that root. See Dodo Dabo v. Alhaji Ikira Abdullahi (2005) 5 MJSC 57 and Ndukwe v. Acha (1985) 5 SCNJ 28.

Learned counsel submitted that the entire evidence adduced by the respondents to establish their root of title leaves some gaps which have not been explained. See Eze v. Atasie (2000) 10 NWLR (Pt. 675) 470. The traditional evidence adduced in proof of root of title must be concise, cogent and credible otherwise the claim must fail. See Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393.

​The appellants on their part called three witnesses as per the submission of the appellants’ counsel at paragraph 4.38 of page 13 of the appellants’ brief of argument. But from the proceedings of the trial Court from page 21 of the record when DW1 Barnabas Ego testified. No other witness testified upto page 25 when the second witness testified. But the Court recorded DW3 Garba Adukwa instead of DW2. And at page 26 the Court recorded DW2 is hereby discharged no other witness testified thereafter. At page 28 of the record the defence counsel applied to close their case and the Court closed the case of the defence. The parties and the Courts are bound by the records. The appellants’ counsel referred to the testimony of DW2, Garba Adukwa at pages 25–26 of the record. See paragraph 4.38 at page 13 of the appellants’ brief of argument. But while referring to the testimony of DW2, the appellant’s counsel stated that the DW3 once accompanied his father and took part in the drinking of the beer as he is the owner of the land bounded with that of the appellants now in dispute. That to the best of the knowledge of DW3, the land in dispute belongs to the appellants and that under their culture once one begs for a land to farm, it does not translate to the land becoming his but that he is only holding the land in trust for the real owner. And the said DW3 was not cross-examined in his evidence as devastating as it is to the respondent’s case. Which evidence is so material in the case as it touched the following aspects of the case.
i. How the disputed land was loaned to the respondent.
ii. In consequence of the loan the consideration that moved from the respondents to the appellants in form of payment of tribute in the form of local beer.
iii. What led to the taking back of the disputed farmland by the appellants from the respondents.
iv. That the land in dispute was held in trust by the respondents for the appellants who are the real owners.

Learned counsel consistently made reference to DW3 instead of DW2. He submitted that in Digai v. Nanchang (2005) All FWLR (Pt. 240) 41 at 57 para A the Court of Appeal held thus;
“The effect of failure to cross-examine a witness as to material evidence given by the witness means the acceptance of that evidence in its entirety by the adversary of the evidence of the said witness”. See also Patrick v. State (2019) All FWLR (Pt. 946) 996 at 1026 paras D–F.

The learned counsel urged the Court to act on the unchallenged and uncontradicted evidence of the appellants through DW3. But ironically the learned counsel submitted that the evidence of DW3 John Dauda at pages 30–32 of the record amply supported the evidence of DW2 in all material aspects of the case. In actual sense DW3 is John Dauda, his testimony is contained at pages 30–33 of the record. DW3 testified sequel to a motion on notice dated 28/5/18 praying for leave of the trial Court to re-open the defence and same was granted.

Appellant’s counsel submitted that cross-examination is the means to test the authenticity of evidence by the opposing party. And since the respondents chose not to cross-examine DW3 on his evidence the said evidence remains unchallenged, uncontroverted and uncontradicted which the Court can act upon in favour of the appellants. See N.I.T.E.L v. Okeke (2017) All FWLR (Pt. 899) 196.

In his response to issue one, the respondent’s counsel submitted that the Justices of the Customary Court of Appeal were right in not disturbing the trial Court’s decision same being based on cogent, reliable and credible evidence of the respondents and since the judgment of the trial Court was not perverse, the learned Customary Court Justices could not have interfered with the trial Court’s findings. See Oyadare v. Keji (2005) 7 NWLR (Pt. 925) 571 at 589, (para H) having referred to the decisions in Ajuwa v. Odili (1985) 2 NWLR (Pt. 9) 710, Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373.

Learned counsel submitted that the traditional evidence of the Respondents was conclusive, in that it traced the deforestation of the virgin Baja land to their parents, who settled and built structures, planted economic trees and farmed there. The respondent’s parents all died on the disputed land and were all buried on the disputed land and the respondent’s representative PW5 then took over both the disputed land and the traditional chieftaincy of the disputed land (Baja) and all other structures and developments on the land. This evidence was not challenged or controverted by all the appellants and their witnesses. The appellants on their own side with all their witnesses except DW3 who claimed one Likita founded Kushe not Baja did not establish who founded the disputed land they are claiming, how he got it and how it passed to them as required by law. See Awodi v. Ajagba (2008) 1 FWLR (Pt. 400) 7431 at 7469–7470 paras G–G. (supra).

​No one among the appellants and their witnesses led any traditional evidence at the trial Court that the respondents were ever prohibited, forbidden from reaping any locust beans on the disputed land. During the Court’s visit to the locus in-quo, DW2 who had earlier claimed in evidence that he planted two locus bean trees on the land could not show the Court the trees he planted and is cultivating in the land in dispute thereby making his evidence not truthful and reliable. See pages 65–66 of the judgment on the issue when the Court visited the locus in-quo. Appellants have never lived, farmed, planted anything on the land in dispute talk less of recovering same and reaping the fruits of any economic tree from the disputed land at Baja. If what they are saying is true, why are they in Court for the same recovered land?

​Appellants throughout the trial did not lead any evidence of anybody, Fulani or not, whose animal(s) ever died on the disputed land and the (appellants) took the carcasses. So this claimed traditional evidence which is not supported by law is an after-thought and planned by the appellants. It is only the DW3 who said this and it was not corroborated by any other witness for the appellants thereby making his claim unreliable to any Court.
In the circumstances, the entire findings of both the trial Court and the learned Justices of the Customary Court of Appeal are not assailable in law.

The respondent’s counsel submitted that the Justices of the Customary Court of Appeal were right when they upheld the evidence of PW3 on the basis of his age as a man of over 100 years who was given birth to on the disputed land. This evidence of age is clearly to state how long the Baja people have lived on the disputed land. This piece of evidence was not controvertered and is credible and support the respondent’s case. See the case of Green Finger Agro Industry Ltd v. Yusuf (2003) 12 NWLR (Pt. 835) 488 at 514 (Paras B–F) where the Court held that where evidence is adduced by a plaintiff to claim and is not challenged and is also credible and corroborated and supports the claim of the plaintiff, judgment will be entered in favour of the plaintiff.

​The history of migration in Africa is of common knowledge. There were various reasons for people in the olden days to migrate from one place to the other, the major reasons being diseases, seeking for peaceful settlements and greener pastures. The fact that the respondents deforested Baja land as a virgin land and first settled there and are still living there is what is relevant and not migration. PW3 may not know where Baja people migrated from because; he is not claiming that his parents or himself founded Baja. His evidence, just like that of PW2 is that the parents of PW5 founded Baja land. PW5’s parent founded before they gave a portion to PW3 and 4’s parents for which PW4’s parents were paying tribute through local beer to PW5’s parents. This piece of evidence was not controvertered by the defendants/appellants at the trial customary Court. Thus the finding of the Customary Court of Appeal Justices is not assailable in law.

​PW2 (Dogo Dutse) in his evidence before the trial Customary Court under cross-examination corroborated the evidence of PW3 when he stated that the land in dispute belongs to Baja people, the (Respondents) and that Baja and Koyi people share a common relationship. They work together and cannot accept that the land in dispute belongs to the Chigwau people. See page 17 of the trial Court’s record.

Baja and Koyi people share the disputed land boundary while Baja is being bounded by Chaigwau by the road leading to Aribi at the extreme after Baja village.

PW5 in his evidence at the trial Customary Court did not say the land was a gift to his parents. Rather, he traced the history of the disputed land to his grandfather Adams who deforestated it as a virgin land and from Adams to his father Garba and from Garba his father to himself, the present occupant of the land. He also traced the history of Baja’s chieftaincy from his grandfather Adams as the first Chief of Baja to Garba his father and after their deaths and burials at the disputed land in Baja, he is now the present Chief of Baja. See pages 13 & 14 of the trial Customary Court’s records of proceedings. See also Oyadiji v. Olaniyi (2005) 5 NWLR (Pt. 919) (page 561 at 574 -575 paras D–A).

​PW5 Yakubu Garba Adams gave a graphic and detailed traditional history of the disputed land. The evidence of PW5 was cogent, reliable and corroborated since it was not controverted by any superior evidence in proving title to the disputed land. See the case of Oyadiji v.Olaniyi (supra).

The evidence of chieftaincy title in Baja in that from the respondent grandfather, to PW5’s father and then to the present PW5, is to buttress the fact that after deforestating the disputed land and being the first to settle on it, Adams became the first village head of Baja and from him when he died, his son who is the father of PW5 took over and when the father of PW5 died and all were buried in the disputed land, PW5 took over and is now the current village head of Baja and representing the respondents in this suit.

This evidence was not challenged and there was no superior argument against that to warrant the issue of chieftaincy certificate which was not in issue at the trial Court.

The land in dispute is dealing with the subjects of the chief of Baja and the subjects of the chief of Chigwau. The certificate of Chieftaincy then “was the record of who deforestated the virgin land and first settled on it which has been established by evidence to be the parents of PW5.

​The respondents could not have been tenants of Chigwau people having stayed on the land for over one hundred years, farm, built permanent structures, made gifts to PW3 & 4’s parents, built their shrine and worship their gods to the exclusion of the Chigwau people and have never been challenged/hindered by anybody, the Chigwau people inclusive until 2016. These acts of long possession and enjoyment of the disputed land unchallenged are enough proof that the respondent owns the land. See Awodi v. Ajagbe (2008) Pt. 1 FWLR (Pt. 450) pg 7431 at 7460 paras (D–D). See also S.134 Evidence Act of 2011.

Learned counsel submitted further that the issue of chieftaincy is not extraneous to the disputed land matter as it is meant to give a clear and straight history of who first settled on the disputed land. There cannot be a community/village without a leader/chief. See Abudu v. Eguakun (2003) 14 NWLR (Pt. 311) page 322 – where the Supreme Court held that the law presumes that the long enjoyment by a party in possession of land indicates that his rights have a legal origin. This is moreso, when the party has been in possession nec claim, nec vi, nec precario, that is neither secretly, nor by force nor with Legal permission. The appellants are estopped from setting up a claim of their legal right to the land in dispute. Referred to in Awure v. Iledu at pg 7705 Ratio E – F, (supra).

PW5 apart from tracing the traditional history of how he came on the disputed land also gave a graphic description of their villages thus “our villages are separated by a road path that led to Aribi village. From Koyi village to Baja then Chigwu village, our village is in between Koyi and Chigwau. On the East of Baja are palm trees planted by us, a locus beans tree that lead to a gully with mango tress, guava trees, we also share boundary with chief of Koyi PW1 called Atama Tukura on the western axis and bounded by PW2 (oogo outset. See page 14 of the trial Court’s record)

​PW5 maintained under cross-examination that nobody gave his parents the disputed land. See page 19 of the trial Court’s record. The decision of the Customary Court of Appeal Justices was right when they held that the appellants did not take steps to demand for payment of rent from the respondents or for the respondents to quit the land. Page 61 of the judgment. The appellants could not have taken any such step because, they had nothing belonging to them on the land as they have-not and are not farming there, had no buildings or any economic trees on the land. See page 61 of the judgment the lower Customary/Trial Court.

The respondents did not pay tribute to the appellants, rather the parents of PW4 were paying tribute to the parents of PW5 as clearly stated by PW4 himself in his evidence at page 13 of the records of the trial Court.

The dispute broke out as a result of PW4 trying to expand his house by building additional rooms on the disputed land given to his parents by the parents of PW5 and appellant’s representative (Peter Ibrahim) came and stopped him and not because of failure to pay any tribute as claimed by the appellant’s witnesses. See page 13 of the trial Court’s record on the evidence of PW4 on the cause of the dispute.

​No evidence was led by the person who “begged” for the disputed land and also no evidence was led by the person who was given the “begged” land and if they were dead then, no foundation was laid as to why they were not called by the appellants to establish this claim. It is the decision of the Supreme Court in Akinbade & Ors v. Babatunde & Ors (2017) referring to the principle established by the Supreme Court in a Oni v. Arimoro (1973) 3 SC 63 AT 179; (1973) 8 NSCC 108 AT 114 that the adverse and exclusive possession of land for several years could ripen to ownership particularly when there is no evidence that the party who asserts the ownership of the land, though aware of the adverse possession of the other party (respondents) never in those years either took steps or quit them from the land or demand payment from them of any sort of rent. See also Igeiehon v. Omoregie – (1993) 2 NWLR (Pt. 276) 398 AT 408 per Adio JCA (as he then was). PW1, 2, 3, 4, and 5 stated in their evidence that they have live in the disputed land for some time beyond human memory without any hindrance or challenge by anybody till 2016. Adedeji vs Oloso (2007) 2 MJSC Vol. 3 page 56 AT 107 (paras E –F) Ratio 3 AT page 59.

​The learned Justices of the Customary Court of Appeal were right when they held that the appellants did not prove their title to the disputed land. This is because they did not establish who founded the disputed land in their family; how he founded it, how the said land devolved to the appellants which is one of the genuine ways of proving claim of title to land. See Oyadiji v. Olaniyi (2005) 5 NWLR (Pt. 919) page 561 at 574–575 (paras O–A) (supra).

DW1 said the land belongs to the appellants and his only reason for saying so is that he shared his land boundary with the appellants and that from Koyi where he lives, when one leaves Koyi, the next village you get is Chigwau. This was not what the Court saw at the visit to the locus in-quo.

What the Court saw was that from Koyi, you get to the land in dispute before you go to Chigwau. We refer to the records of the trial Court’s judgment.

DW2, in further creating confusion and being unreliable stated in his evidence that respondent’s parent approached the appellant’s parents for a piece of land to settle and were granted. What baffled one here is the fact that it is not possible for one to beg for a piece of land to settle and at the same time, he will make himself chief of the gifted land, own subjects and his own shrine and permanent structures with Economic trees, all in somebody else land. How possible is it for the respondents following the conflicting evidence of DW2 to have come and will not live under the persons that “gave” them the land, only for them to create their own chief and shrine in someone else land. This evidence is highly unaccepted, unreliable, and not cogent and cannot be relied upon by any Court.

While DW1 and DW2 do not believe there is a village/land called Baja, DW3 contradicted them by corroborating the evidence of the respondents (PW1, 2,3, 4 and 5) that there is a village called Baja which according to him (DW3) means “beg”, thereby making both evidence of DW1, 2, and 3rd all unreliable and” not to be relied upon.

​DW3 who said appellant’s grandfather established Kushe which is a different village entirely did not say his grandfather also founded Baja nor did he prove by any of the five methods known to law on claim of title to land how; Likita (his grandfather) established Kushe as a village as well as established Baja again as a separate village. See page 31 of the trial Court’s record at paragraph 2, DW3 said the failure of the respondent’s parents to bring tribute made the Chegwau people to take over the disputed land. The question here is which disputed land are they claiming here. See page 31 of the record. This piece of evidence is unreliable and cannot be relied upon by any Court.

DW1 and DW3 contradicted themselves on the existence of a village called Baja. While DW1 said that he lives in Koyi and is bounded by the land in dispute which he claim is in Chigwau, DW3 acknowledged in Court in his evidence of the fact of the existence of a village called Baja and yet he went on to contradict himself by saying the disputed land is in Chigwau. See page 31 under cross-examination which is a grave contradiction and enough to make their evidence unreliable to any Court of law. Acceptance by DW3 that there is a village called Baja corroborates the evidence of PW1, 2, 3, 4 and 5 and the fact also that the disputed land is located in Baja. The effect of DW1, 2 and 3’s evidence is that they are helping the appellants to claim a land they don’t know its location which is fatal and not credible to the appellant’s case.

​It is settled law that there are five ways of establishing title to land. This is set out in the case of Idundun v. Okumagba (1976) NMLR 200 at 210 Per Fatayi Williams JSC (as he then was) OBM as follows:
“1. By traditional evidence.
2. By production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved.
3. By act of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner. (See Ekpo v. Ita 11 NLR 680).
4. By acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land (See Section 45 of the Evidence Act).
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner or such connected or adjacent land would in addition be the owner of the land in dispute.”
However, each of the five ways stated above suffices to establish title to a disputed piece of land. See also the following cases: Piaro v. Tenalo (1976) 12 SC 31; Balogun & Ors v. Akanji & Anor. (1988) Vol. 19 1 NSCC 180; (1988) 1 NWLR (Pt. 70) 301; Onwugbufor & Ors v. Okoye & Ors (1996) 1 NWLR (Pt. 422) 252; Mogaji v. Cadbury Nig Ltd. (1985) 2 NWLR (Pt. 7) 393; Alii v. Alesinloye (2000) 6 NWLR (Pt. 600) 177; Eze v. Atasie (2000) 10 NWLR (Pt. 676) 450.

In this instant appeal, the respondents herein as plaintiffs before the trial Court placed reliance on traditional evidence in their bid to establish their title to the land in dispute. The law is now well settled that where a person relies on traditional history as his root of title, the onus is on him to plead the root of title and names and history of his ancestors. He should lead evidence to establish same without any missing link, from progenitor to a claimant. See Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386; Akinloye v. Eyiola (1968) 2 NMLR 92 and Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413.

It should be noted that the weakness of the defendant’s case in a land matter, seeking for a declaration as in this instant case, does not assist the claimant’s case. He swims or sinks with his own case. See Animashaun v. Olojo (1991) 10 SCNJ 143; Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176; Ekundayo v. Baruwa (1965) 2 NMLR 211; Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362; Dumez Nig Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361. This Court and the Apex Court did held in plethora of cases that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlements to the declaration by his own evidence. 

However, it is a notorious fact that the first settler or founder of a parcel of land becomes the owner of the land and head of subsequent settlers on the land. His descendants derive title to the land from him. It accords with common sense that the head or ruler of the settlement at any given time should be one of the descendants of the founder of the land. See Titiloye & Ors. v. Olupo & Ors. (1980) – (1993) 2 S.C.J.L Page 1043.

At this point it is apt to look at the finding of the lower Court at pages 121 to 125 of the record it reads:
“We have carefully gone through the whole evidence adduced, and the judgment of the trial Court, its findings and the conclusion reached. The trial Court accepted and relied on the evidence of PW3, who is 120 years old, and who was given birth on the said land in the village of Baja; and still staying there and cultivating the disputed land with their structures on the land. The appellants are not staying in Baja but in a different village of Chingbua. See pages 57–58 of the judgment.
The respondents and their witnesses, gave credible evidence as to the traditional history of the land in dispute. The evidence of PW5, Yakubu Garba Adams, who represented the people of Baja village, is instructive and important evidence. This witness gave a graphic and detail traditional history of the disputed land from the founder up to them. They have been farming the land and even giving the land to other people to farm and settled on it, like PW3.
PW5, is currently the Chief of Baja his village. His grandfather was the first Chief of Baja and then his father succeeded his grandfather Adams, and then he (PW5) succeeded his father. He further stated that, his parent and grandparent were all born on the land in dispute and also buried on the land in Baja Village. See Pages 13-14 of the record of proceedings.
The trial Court was therefore right to hold on page 58 of the judgment thus:
“We after closely perusing through the evidence of the parties, we were not left with any option than to accept the evidence of the plaintiff as their evidence is coherent, cumulative, credible in the assertion of traditional history as to the Baja as how:
– Who founded the land in dispute
– How it was founded
– And particulars of interviewing (sic) owners of the land until it reach (sic) the plaintiff representatives.”
That evidence of PW5, the Chief of Baja, was not controverted nor challenged by the appellants. Adams, who deforested the land was never disputed. All these facts were well addressed by the trial Court. See page 59 of the judgment.
The trial Court also addressed the issue of acts of ownership by the respondents. That PWs 1, 2, 3, 4 & 5 have been in possession of the disputed land, and even gave part of the land to their citizens. That according to the trial Court, if the land was not for the respondents, they could not have been giving the land to people. See pages 60-61 of the judgment.
The trial Court also found out that the appellants throughout the years never took steps to demand payment of rents from the respondents or for them to quit the land. See page 61 of the judgment. The trial Court further held on page 62 of the judgment as regards the acts of ownership exercised by the respondents over the years, when it held:
“… the Court was even shown where Baja people used to worship idol gods different from Chigbau’s people who are never allowed to gain entrance into the worship centre as they are seen as strangers…”
The Baja people are the respondents, while Chigbau people are the appellants from the evidence adduced and stated in the body of this judgment.
Finally, the trial Court also came to the conclusion on page 64 of the judgment that the respondents have successfully proved their case by traditional history, exclusive possession, and enjoyment of the disputed land. From the evidence adduced, we agree and accept the findings and the conclusion reached by the trial Court. That respondents as rightly held by the trial Court proved their claim by traditional history and by acts of ownership by being in possession of the disputed land which is a whole village for many years.
From the evidence, we are of the candid opinion that the appellants, who are claiming the land, did not prove their claim. The evidence adduced by the appellants is not gent, credible or reliable, which no Court can confidently rely on. There is no evidence before the trial Court worth convincing that, the respondents are tenants and paying tributes all these years. Hence, the trial Court in our humble view was right in rejecting the issue that the respondents are customary tenants.
It is therefore our respectful view that the contention of the learned appellant’s counsel on proof, customary tenancy, contradictions on the part of the respondents cannot be sustained against the respondent.”

​From the excerpts of the judgment of the lower Court it is clear that its findings is based on the evidence adduced at the trial Court. The respondents were able to establish their claim for declaration of title by cogent and acceptable evidence of tradition accompanied by exercise of dominion which alone is sufficient to establish title. The respondents led evidence to show or establish the founding of the land in dispute through deforestation and the exercise of original acts of possession and the persons on whom the title has devolved since its first founding. In other words, the respondents have established traditional evidence of title by conclusive evidence of facts as:
(1) Who founded the land in dispute
(2) How they founded the land and
(3) The particulars of the intervening owners through whom they claim.

The respondents were able to achieve this by narrating a continuous chain of devolution through the evidence of PW5 Yakubu Garba Adams who is the Chief of Baja village. His grandfather was the first Chief of Baja and then his father succeeded his grandfather. And he succeeded his father. The evidence of PW5 was corroborated by the evidence of PW3 Adamu Dauda who is 120 years old. He was born on the said land in dispute in the village of Baja and is still staying there and cultivating on the land.

​History is all about evaluating believe on the basis of credibility. Declaration of title to land is granted at the discretion of the trial Court after hearing both sides. After hearing, the trial Court is to decide which of the two are telling the truth and then proceed to grant a declaration of title to the side the Court is satisfied with. It is not about misplacement of the burden of proof as contended by the appellants. The lower Court was perfectly right when it affirmed the decision of the trial Court. Accordingly, therefore the first issue is resolved against the appellants.

The second issue is whether the learned Justices of the Customary Court of Appeal of Kaduna State were not in error in taking into consideration issues that are extraneous to the claim before the trial Court in affirming the decision of the trial Court. On this note, the appellant’s counsel submitted that the claim before the trial Court is for declaration of title to the land in dispute and based on that parties led evidence. But the lower Court took into consideration two points among other things in dismissing the appeal, thus:
(a) Chieftaincy title
(b) The visit of locus in quo.

At page 122 of the record the lower held as follows:
“PW5 is currently the Chief of Baja his village, his grandfather was the first Chief of Baja and then his father succeeded his grandfather Adams and then he (PW5) succeeded his father.”

The appellant’s counsel submitted that the reference to the succession to the Chieftaincy title in Baja by the lower Court in the appeal is a diversionary statement that made the lower Court to miss the real issue at stake which borders on respondent’s root of title to the land in dispute and not right to a Chieftaincy, which is extraneous to this matter of dispute in land. The lower Court failed to resolve how the respondent got the land in dispute. And whether the disputed land was given on loan to the respondents by Chigwa’u on payment of tribute to Chigwa’u.

​Earlier in his submission, the respondent’s counsel stated that PW5 in his evidence at the trial Customary Court did not say the land was a gift to his parents. Rather he traced the history of the disputed land to his grandfather Adams who deforested it as a virgin land and from Adams to his father Garba and from Garba his father to himself the present occupant of the land. He also traced the history of Baja’s Chieftaincy from his grandfather Adams as the first Chief of Baja to Garba his father and after their deaths and burials at the disputed land in Baja he is now the present Chief of Baja. The evidence is to buttress the fact that after deforestation of the disputed land and being the first to settle on it, Adams became the first village head of Baja. From Adams to Garba his son, then to the present Chief of Baja, the son of Garba. The issue of Chieftaincy is not extraneous to the disputed land matter as it is meant to give a clear and straight history of who first settled on the disputed land. There cannot be a community/village without a leader/chief. Without much ado, I am on the same page with the submission of the learned counsel for the respondent. It is settled law that where a plaintiff relies on original settlement as title to claim the land in dispute, the burden is on him to establish such original settlement by cogent and acceptable evidence of tradition. 

It is a notorious fact that the first settler or founder of a parcel of land becomes the owner of the land and the head of subsequent settlers on the land. His descendants derive title from him. It accords with common sense that the head or ruler of the settlement at any given time should be one of the descendants of the founder of the land. See Titiloye & Ors v. Olupo & Ors (1980-1993) 2 S.C.J.L Page 1043.

With due respect the contention of the appellant’s counsel that the issue relating to the Chieftaincy title as dwelled upon by the lower Court is totality extraneous to this matter which is the land in dispute it is a clear misconception of the requirements of proof of title by traditional evidence.

On the second point, the learned appellant’s counsel submitted that at page 53 of the record the reference made as regards the visit to locus-in-quo, by the trial Court is thus:
“After which the Court visited the locus in quo…”

The trial Court did not dwell on whatever transpired at the locus-in-quo. The entire record did not reveal that a note on the visit to locus-in-quo was made by the trial Court. The lower Court was in error when they held at page 125 of the record as follows:
“With due respect to the learned appellant’s counsel there is nothing before us in the contrary that what the trial Court said as regard the visit to locus in quo was not what transpired.”

The appellant’s counsel submitted that the Courts and parties are bound by the records. An appellate Court cannot read into the record what is not there or to supply what is omitted from the record. And these extraneous matter which the Court below considered instead of the main case before them beclouded their view of the real issue in controversy between the parties thereby leading to a miscarriage of justice in the appeal.
​The respondent’s counsel submitted that what transpired at the locus-in-quo was recorded at pages 31, 56, 60, 63 (last paragraph) pages 65-66 of the trial Court’s records and judgment. The trial Court judgment form part of the records of the Courts. In case of a visit to locus-in-quo it is permissible in law for the trial Court to omit the report thereof in its proceedings provided it makes a statement on it in its judgment as in this instant case. And that would suffice and will be relied upon by an appellate Court as the accurate statement or report of what happened during the visit. What the trial Court saw and heard at the locus-in-quo is what it recorded in its judgment. Thus the decision of the lower Court was based on the records.

It is settled law that the procedure for a visit to locus in quo is provided for by Section 127(2) of the Evidence Act 2011. There are two methods of carrying out a visit to locus in quo, and one of such method is for the Court to attend and make an inspection of the subject matter only, evidence if any of what transpired thereat being given in Court afterwards. See Briggs v. Briggs (1992) 3 NWLR (Pt. 228) 128 and Amadu v. Yantumaki (2012) ALL FWLR (Pt. 626) 503.
The only exception is that a trial Judge should not make himself a witness during such inspection. But he can use his visual perception of physical features at the locus in quo to resolve conflicts in evidence regarding such physical features and in Ejidike v. Obiora (1951) 13 WACA 270 at 274, the Court held that it is not open to the trial Judge on an inspection of the locus in quo to substitute the result of his own observation for the sworn testimony of witnesses or to reach conclusions upon things he has observed in the absence of any testimony on oath as to the existence of facts observed at the locus. See Olumolu v. Islamic Trust (1996) 2 SCNJ 29.

​Now what the trial Court did was perfectly in order as regards to the procedure for a visit to locus DW3 John Dauda gave evidence after the visit to the locus in quo. At page 30 to 31 of the record DW3 stated thus:
“… I came to give evidence and I do know the plaintiff and defendant representatives. I came to inform the Court the land in dispute belong to us and I know the area on the 26/4/18 when the Court visited the locus I was present at the locus and do have a land bounding the disputed land, to the best of my knowledge the disputed land belong to my grandfather Likita, my grandfather Likita is the one farming the disputed land and is the founder of Kushe village before the grandfather of the plaintiff approached my grandfather in accordance with the custom and tradition of the Koro people. It is permissible that if one prayed for something he should oblige him when he prayed for the land he was asked to cook beer and bring and he actually obliged by bringing the beer to our house and my grandfather invited people to come and drink the beer one among those that drank the beer is one Adukwa from Chigwa’u and from there he was obliged the land but not without a condition in accordance with the custom of the Koro people. And the condition/agreement was that all the economic trees like locus beans trees he was not allowed to harvest it is only the Chigwa’us indigene that are allowed to harvest same after that whenever a Fulani herdsman rear his herds on this land and once his cow died without officially slaughtered the herdsman has no right to slaw same it is the indigenous landlord that will carry same, we share boundary with the Koyi people if carcass happens Koyi land no one from Chigwa’us is allowed to carry same and reverse is the case, the rationale behind that is to show that he who carry the carcass is the landlord…”

In its judgment the trial Court made reference to the visit, particularly at pages 65-66 of the record, the trial Court stated thus:
“… however at the visit, he could not show the Court where he is cultivating presently as there is no evidence of the defendants still cultivating the land. But the plaintiffs are and still in occupation of the disputed land as seen on the day of the visit. DW3 John Dauda whom we see as someone not trust a little but in a statement somersaulted from the other witnesses traced his grandfather Likita as the owner of the land in dispute and also the founder of a village of Kushe. It must be noted that Kushe village is quite distinct from Koyi, Baja and Chigba’u…”

​From the excerpts of the judgment of the trial Court it is crystal clear that the submission of the appellant’s counsel that the only reference made by the trial Court as regards the visit to locus in quo is thus: “After which the Court visited the locus in quo…” is not a true reflection of what contained in the record rather it is a clear misunderstanding, a misdirection or a misconception. There is therefore no error committed by the lower Court when they held that “… with due respect to learned. Appellants counsel there is nothing before us on the contrary that what the trial Court said as regard the visit to locus in quo was not what transpired”. The appellant’s counsel should have taken the pains to meticulously study the record before he made such assertion. The second issue is also resolved against the appellant. The appellant counsel had dissipated so much energy with a forensic magic to breathe life into the dead case. If there is any appeal that is bereft of any substance or merit this is certainly one of them.

Before I draw the curtain let me observe that arguments contained in briefs are based on the issues which arise from the grounds of appeal. In other words, arguments are proffered on the issues and not on the grounds of appeal simpliciter. An issue may arise from one, two or more grounds of appeal and not the other way round. Brief writing first became a practice in the Court of Appeal vide the Court of Appeal (amendment) Rules 1984. Prior to its coming into force on 1st September, 1984 parties in an appeal were not bound to state issues which they wanted the Court of Appeal to resolve. As a result, arguments are based on ground of appeal with the resultant effect of difficulties in reviewing the whole case when only one or few issues were germane or would resolve the appeal. Therefore, issues are narrowed down so that delays could be avoided and waste of judicial energy. In this instant case, the respondent’s counsel could not have centered his argument on grounds of appeal if he had done well to remember what an issue really is.

In conclusion the appeal is hereby dismissed for lacking in merit. The judgment of the lower Court delivered on the 21st of March, 2019 in appeal No: CCA/KAD/KAF/87A/2018 is affirmed. I make no order as to cost. But it is necessary to reiterate the appeal made by the lower Court at the conclusion of its judgment. It reads thus:
“Finally, we wish to make this humble appeal in this case that people should learn to live in peace. For two villages/communities to be living in peace for years without problem then at once, trouble will start which nobody knows how and when it will end. This case is not between two individuals but between villages/communities. One village wants to take over a whole village from the other. This situation if allowed will cause irreplaceable damages and lingering unrest between the two villages.”

​There is a natural or understandable emotional attachment of indigenous people to their family land and that is the more reason why this crisis may linger on for years to come, with generations yet unborn, which might result to loss of lives and properties. It is time for the leaders/chiefs to come to terms and settle their difference amicably. The counsel on both sides will also help as ministers in the temple of justice to bring about peaceful settlement. A word is enough for the wise.

AMINA AUDI WAMBAI, J.C.A.: I agree.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother, Talba, JCA. My brother in the lead judgment thoroughly considered, reviewed and analysed the facts and circumstances that gave rise to filing this suit at the trial Court to the lower Court sitting on appeal and rightly reached the inevitable conclusion that this appeal lacks merit. I adopt the finding by my learned brother and also dismiss this appeal.

​In conclusion, and as an obiter dictum my learned brother in the lead judgment advised the two warring communities to explore avenues of living in peace for the sake of their children and generations yet unborn. I also associate myself with the wise counsel and adopt same. I abide by the order as to cost.

Appearances:

Faridat Yusuf, Esq. For Appellant(s)

L. M. Shall, Esq. (Asst. Chief Legal Aid Officer) For Respondent(s)