IBRAHIM v. DOGARI & ORS (2022)

IBRAHIM v. DOGARI & ORS

(2022)LCN/16822(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/A/251/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

ISAAC IBRAHIM APPELANT(S)

And

1. UMARU DOGARI 2. IBRAHIM NAKORJI 3. BAKO WAKILI NARKOJI RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO RECEIVE ALL RELEVANT EVIDENCE OF PARTIES AND ASCRIBE EVALUATIVE VALUE TO IT

Jurisprudentially, it has always been the duty of the trial Court to receive all relevant evidence led by the Parties and their witnesses and then proceed to weigh them in the context of the surrounding circumstances of the case; that is evaluation and afterwards attach probative value to the most preferred evidence. Without much ado, the crux of this appeal as argued by the learned Counsel to the respective parties is whether the trial Court properly considered the evidence of their respective Witnesses before arriving at its decision? The Emeritus Law Lord of the Apex Court, per MUHAMMAD, JSC in the case of ILIYA AKWAI LAGGA V. AUDU YUSUF SARHUNA (2008) LPELR-1740 (SC) opined that:
“Now in evaluating any piece of evidence placed before it by parties, a Court of law is duty bound to consider the totality of the evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. PER AGUBE, J.C.A.

THE POSITION OF LAW ON WHAT THE ASSESSMENT OF EVIDENCE ENTAILS

REQUIREMENTS A CLAIMANT MUST PROVE WHEN RELYING ON THE EVIDENCE OF TRADITIONAL HISTORY IN AN ACTION FOR DECLARATION OF TITLE TO LAND

To this effect, the Apex Court succinctly laid down three (3) fundamental requirements a claimant must prove when relying on the evidence of traditional history in an action for declaration of title to land. These requirements are as follows:
a. Who founded the land in dispute
b. How they founded the land
c. The particulars of the intervening owners through whom they claim.
See the authorities of NKADO V. OBIANO (1997) 1 NWLR (482) 374 SC, OHIAERI V. AKABEZE (1992) 12 NWLR (221) 1, MOGADI V. CADBURY NIG LTD (1985) 2 NWLR (7) 393 AND ELEGUSHI V. OSENI (2005) 7 SC (PT. 111) 205 AT 213-214. Following the tripartite legal requirements, the Appellant in paragraphs 8, 9, 10 of his Amended Statement of Claim pleaded inter alia:
“8. The Plaintiff states that he inherited the disputed land from his father Ibrahim Makama now deceased who was a cattle rearer.
9. That Galadima Kpandarako did not disvirgin the disputed land.
10. The Plaintiff states that the disputed land was disvirgined or deforested by his father Ibrahim Makama and the Plaintiff inherited the land from his father.” PER AGUBE, J.C.A.

THE POSITION OF THE LAW ON WHEN THE IDENTITY OF THE LAND WILL BE IN DISPUTE

The Supreme Court in a plethora of authorities had long established that the identity of the land in dispute will only be an issue where the Defendant in his Statement of Defence specifically disputed the description of the land given in the Plaintiff’s Statement of Claim. This was the sound reasoning of the Emeritus DAHIRU MUSDAPHER, JSC in the case of GBADAMOSI V. DAIRO (2007) SCNJ PG 444; (2007) 3 NWLR (PT. 1021) PG. 282 AT 302; where he opined that:
“It is now settled law that requires no citation of any authority that the identity of land in dispute will only be in issue if and only if the Defendant in his Statement of Defence makes it one.”PER AGUBE, J.C.A.

THE DUTY OF A CLAIMANT OF TITLE TO LAND

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Niger State, Holden at Minna Judicial Division and delivered on the 2nd day of December, 2016 by His Lordship, Hon. Justice AISHA A. L. BWARI, whereof the reliefs sought by the Defendants/Counter-Claimants as per their Counter-Claim were granted and the case of the Plaintiff/Appellant was dismissed. Dissatisfied with the judgment, the Appellant invoked the jurisdiction of this Court by filing a Notice of Appeal predicated on one (1) Ground as reproduced hereunder to wit:
“GROUNDS OF APPEAL:
GROUND ONE:
The judgment of the trial Court is against the weight of evidence.
RELIEFS SOUGHT:
An order allowing the appeal and setting aside the judgment of the trial Court and in its place grant the reliefs claimed by the Plaintiff. “

STATEMENT OF FACTS:
The case of the Appellant at the trial Court was that he is the owner of the piece of land situate at Maikunkele bounded in the East by Kaluwe people, in the West by the house of late Tukura, in the North by one Ayuba Usman and in the South by Ingila Towus and that the land has an upland and a marshy area linked by a road from Ayuba’s place and terminates at the pond. According to the Appellant, the land contains some Cashew, Oranges and Mango trees and that he inherited the said land from his late father Ibrahim Makama who was a rearer and that Ibrahim was given the land to rear by his elder brother Galadima Kpandarako.

It was the case of the Appellant that his father Ibrahim built his house on the land and that Galadima was the original settler who later gave the said land to his younger brother Ibrahim Makama. He maintained that it was Galadima who brought Dogari the Defendant’s father and apportioned lands to him near the disputed land. He stated further that Dogari the Defendant’s father began selling part of the land given to him during his lifetime and when he finished selling his own part, he crossed over to his (Appellant’s) own part which is in dispute.

It was the further case of the Appellant that about three (3) years before the institution of the action in the lower Court, the Defendant continued in the expansion and sale of his late father’s land whereof he lodged a complaint to the Dogaci of Maikunkele’s Palace and thereafter, they visited the said land where the Defendant had promised not to further trespass and the matter was then laid to rest. According to the Appellant, it was not too long after their settlement that the Defendant entered the land and started cultivating hence this Suit. The Plaintiff/Appellant claimed against the Defendants as follows:
1. “An Order of declaration of title to all that piece of land situate in Maikunkele via Minna bounded in the East by Kaluwe people, in the West by the house of late Tukura, in the North by one Aruba Usman and in the South by Ingila Towus’ land.
2. An Order nullifying the entire sale made by the Defendants in the said land.
3. An Order restraining the Defendant, his successors in title and assigns from further act of trespass on the said land by themselves or on their behalf through whomsoever and by any guise.
4. N1,000,000.00 general damages.
5 Cost of litigation.
6. And such further orders the Honourable Court may deem fit to make in the circumstances of the case.”

On the other hand, the 1st Respondent filed a Memorandum of Appearance on the 28th of October, 2013 and on the 20th of November, 2013; he filed an Application dated 19th November, 2013 whereof he prayed the Court for the following reliefs:
“1. An Order joining the proposed 2nd and 3rd Defendants/Applicants as Defendants/counter-claimants in this Suit.
2. An Order deeming as properly filed and served the accompanied Joint Statement of Defence/counter-claim marked as Exhibit “A” on behalf of the 1st, 2nd and 3rd Defendants/counter-claimants in this Suit.
3. Any other Order(s) as the Court may deem fit to make in the circumstances of the Suit.”

The Application was granted on the 23rd of January, 2014 and the matter was further adjourned to the 27th day of February, 2014 for pre-trial. See pages 76-77; 109-110 of the Records. However, the Defendants had filed their Amended Joint Statement of Defence/counter-claim together with the List of Witnesses and their Statements on Oath. See pages 183-186 of the Records. Meanwhile, based on the new development, the Plaintiff by an Application dated and filed on the 24th of September, 2014 filed an Amended Statement of Claim. See pages 116-118 of the Records.
The case of the Defendants/Respondents at the trial Court was that the biological father to the 2nd and 3rd Defendants, Nakoji Galadima was born at Maikunkele and when he grew up, he relocated to Gidan Kwano along Bida Road to a place called Jatapi where he lived and gave birth to his Children and that the land in dispute which is situate at Maikunkele is in the East bounded by Kaluwe people alongside a stream called “Venbour”; the West is bounded with Kabwo rock; the North is bounded with the old tarred road along Minna through the former Bosso Local Government Council Secretariat and the South is bounded with Kutiko Rock/Hill.

It was the further Case of the Defendants that the 1st Defendant’s father Dogari was only given the land to hold in trust by Galadima Kpandarako since his Children were not living with him at that time and that it was on the death of Dogari that the 1st Defendant (Umaru) became entrusted with the property with the express consent and approval of the 2nd and 3rd Defendants who were/are the surviving Children of Nakoji Galadima. See page 30 of the Record.

Again, it was the further case of the Defendants that the land given to the 1st Defendant’s father to hold in trust was/is the entire land, the subject matter in dispute. Accordingly, the 2nd and 3rd Defendants counter-claimed as follows:
“a. A declaration that the 2nd and 3rd Defendants are entitled to the Customary Right of Occupancy over the disputed land clearly described at paragraph 4 of the Statement of Defence.
b. An Order of Perpetual Injunction restraining the Plaintiff, his agents, privies, successors in title or any other person claiming through him from interfering with the 2nd and 3rd counter-claimants’ quiet and peaceful enjoyment of the disputed land.
c. General damages of One Million Naira (N1,000,000.00) only against the Plaintiff.
d. The cost of defending this action put at Three Hundred Thousand Naira (N300,000.00) only.”

It would be recalled that the hearing of the suit was commenced on the 5th day of November, 2014 and ended on the 7th of April, 2016 and thereafter, the learned Counsel to the respective parties adopted their Final Written Addresses on the 5th day of May, 2016 and the matter was adjourned to the 30th of June, 2016 for judgment. However, judgment was later delivered on the 2nd day of December, 2016. Dissatisfied by the decision, the Appellant then filed a Notice of Appeal as earlier stated.

The Record of Appeal was thereafter compiled, transmitted and entered into this Court and the Brief of Argument were filed and exchanged by the learned Counsel to the respective parties. In the Appellant’s Brief of Argument dated 29th May, 2017 and filed on the 12th of June, 2017 but deemed properly filed and served on the 26th of January, 2022 was settled by I.M. Ndamitso Esq., wherein a sole Issue was distilled for determination to wit:
“ISSUES FOR DETERMINATION:
Whether the trial Court properly evaluated and weighed the evidence adduced by the witnesses of the respective parties in this appeal before arriving at its decision in favour of the Respondents?”

In the Respondents’ Brief of Argument settled by E. K. Philip Esq (Notary Public), dated and filed on the 4th of July, 2018 but deemed properly filed and served on the 26th of January, 2022, the Learned Counsel adopted the Appellant’s sole Issue for the determination.
ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON THE SOLE ISSUE:
WHETHER THE TRIAL COURT PROPERLY EVALUATED AND WEIGHED THE EVIDENCE ADDUCED BY THE WITNESSES OF THE RESPECTIVE PARTIES IN THIS APPEAL BEFORE ARRIVING AT ITS DECISION IN FAVOUR OF THE RESPONDENTS?”

The learned Counsel for the Appellant contended that it is the duty of the trial Court to consider the totality of the evidence led by each of the parties and thereafter place it on imaginary scale of justice to see which of the two sides weigh more credible than the other. He referred this Court to the case of LAGGA V. SARHUNA (2008) 16 NWLR (PT.1114) P. 427 AT 460 PARAS E-E to buttress his submission. He further contended that the witnesses testified on various issues that were relevant to the facts of the case which includes: evidence on the issue of the founder of the disputed land, how the land was founded, the particulars of the intervening owners through whom the parties claimed the disputed land and the evidence on the identity of the disputed land among others and that the trial Court was required by law to review and scrutinize the evidence by putting same on the imaginary scale of justice to see which weighs heavier. He referred us again to the authorities of LAGGA V. SARHUNA supra, BASIL V. FAJEBE (2001) NWLR (PT.51) P.1914 for his contention.

He maintained that the trial Court did a summation or restatement of the evidence of the respective parties without evaluating or assessing them and that the evidence as to the founder of the disputed land, how the land was founded, how it devolved on each of the parties to see which version of the traditional history offered by the Witnesses weighed heavier than the other was not evaluated. To strengthen his above contention, he referred us to pages 271-288 of the Records.

It is the argument of the learned Counsel for the Appellant that the Respondents stated in their respective Statements on Oath at pages 189, 209-210, 193, 205 and 201 of the Records that the Plaintiff had never complained about the occupation of the disputed land by Dogari (the 1st Defendant) but under cross-examination DWI at pages 175-176 of the Records stated that the matter was reported to Dogaci Maikunkele’s house by his nephews. Based on the above, he submitted that the trial Court did not weigh the evidence as to ascertain which was more probable or credible.

It is the further argument of the learned Counsel to the Appellant that DW3 in paragraph 16 of his Statement on Oath stated that the Northern, Eastern and Western part of the disputed land were inhabited by people for a very long time with their knowledge but under cross-examination at page 233 of the Record, he stated that most part of the land was sold by unknown persons which they had reported to the Police. He referred us to page 193 of the Record and maintained that PW2 under cross-examination at page 214 of the Record stated that Galadima Kpandarako was his Grandfather and that he has no knowledge of the 2nd and 3rd Defendants’ father. Again, he referred this Court to pages 214-215 of the Records on the above submission.

Citing pages 234 and 236 of the Records, he contended that DW4 and DW5 testified that the disputed land was shared to his elder brother Ibrahim Nakorji. On the above, he submitted that the trial Court failed to evaluate the evidence placed before him. He further cited page 280 of the record in submitting that the trial Court acknowledged the fact that the disputed land was different from the land Galadima Kpandarako apportioned to Dogari which was demarcated by a spring called Kunkunugbo stream and that the land which the 1st Defendant trespassed into was the one founded by Ibrahim Makama now in dispute.

The learned Counsel for the Appellant contended that the trial Court at page 281 of the Record drew a wrong inference from the totality of the evidence of PW1, PW2 and PW3 when he held that the evidence of the witnesses in-chief and that under cross-examination were contradictory. It was his further contention that the trial Court wrongly applied the authority of ANYADUBA V. NRTC LTD (1992) 5 NWLR (PT.243) P.535 to the facts of the case and that since the trial Court had drawn a wrong and perverse inference on the totality of the evidence adduced, the Appellate Court has the power to re-evaluate the entire evidence for the interest of justice. He referred this Court to the case of ANYEGWU V. ONUCHE (2009) 3 NWLR (PT.1129) P.659 AT PP.675-676 PARAS F-B to substantiate his contention.

Again, he argued that the testimony of PW1 under cross-examination at page 116 of the records was not weighed against the testimonies of DW3, DW4 and DW5with regard to the issues contained in their examination-in-chief. Still on the above score, he contended that the trial Court did not evaluate the testimony of PW2 as well as the evidence adduced under cross-examination. It was the submission of the learned Counsel for the Appellant that the findings of the trial Court were perverse because it was obvious that parties were referring to the same land in dispute.

In concluding his argument, the learned Counsel for the Appellant submitted that the trial Court failed to evaluate the testimony of PW2 who stated under cross-examination that Galadima Kpandarako was his Grandfather and that the failure to evaluate or assess the testimonies of the witnesses before arriving at the findings was perverse and same has occasioned miscarriage of justice which calls for the intervention of the Appellate Court. He therefore urged this Court to resolve this issue in favour of the Appellant against the Respondents and to further set aside the decision of the trial Court.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENTS ON THE SOLE ISSUE:
“WHETHER THE TRIAL COURT PROPERLY EVALUATED AND WEIGHED THE EVIDENCE ADDUCED BY THE WITNESSES OF THE RESPECTIVE PARTIES IN THIS APPEAL BEFORE ARISING AT ITS DECISION IN FAVOUR OF THE RESPONDENTS?”

On this issue, the learned Counsel for the Respondents relied on the authorities of MOGAJI V. ODOFIN (1978) 4 SC 91, AKAD INDUSTRIES LTD V. OLUBODE (2004) 4 NWLR (PT.862) 1 CA, in contending that in the evaluation of evidence, the trial Courts are guided by the following principles namely (a) Whether the evidence was admissible. (b) Whether the evidence was relevant. (c) Whether the evidence was credible. (d) Whether the evidence was conclusive and (e) whether the evidence was more probable by that given by the other party. The learned Counsel for the Respondents further contended that the argument of the Appellant did not address the crucial facts established by evidence in the determination of the issue.

It is the argument of the learned Counsel for the Respondents that it is the duty of the trial Court to give value and quality to evidence and that the evidence given in any judicial proceedings must by itself possess some value to be ascribed evidential or probative value. Again, relying on the authorities of IDUNDUN V. OKUMAGBA (1976) 9-10 SC, AWODI V. AJAGBE (2007) 4 WRN 95 AT 100; NRUAMAH V. EBUZOEME 9 SCNJ 128 AT 131, he contended that in a declaration of title to land where parties anchored their title on traditional history as in the instant case, it behoves on them to prove who founded the land, how the land was founded and the particulars of the intervening owners through whom the current parties claim or derived their title from. He submitted that the Respondents detailed out the above points in their Final Written Address before the trial Court. He referred us to pages 240-243 of the records.

Still on the above score, the learned Counsel for the Respondents argued that the Appellant wholly digressed from the focal points and proceeded to address the Court on irrelevant Issues that do not define the moment as far as the case was/is concerned. He submitted that the trial Court carried out detailed analysis and evaluation of evidence before delivering its judgment. ADEBAYO V. ADUSEI (2004) 4 NWLR (PT.862) 44 was cited to buttress their submission.

Placing reliance on the statements of DW1, DW2, DW3, DW4 and DW5 as contained in their Witnesses Statements on Oath, the learned Counsel for the Respondents submitted that the said statements were adopted without any objection and so for the Appellant to contend that the trial Court failed to evaluate the evidence of the Defendants’ Witnesses is of no moment. For the above argument, he referred us to pages 117, 121, 145, 149, 153, 161, 165, 169, 170 and 175 of the Records.

Citing pages 282-284 of the Records, he submitted that the trial Court distilled the contradictory evidence of the Appellant which demolished his case and that he further relied on the authorities of AYOOLA V. YAHAYA (2005) 7 NWLR (PT.923) 122, UNION BANK PLC V. SPARKLING BREWERIES LTD (1997) 3 NWLR (PT.491) 29 AT 51 PARAS E-F to buttress his position. Arguing still, he maintained that the Appellate Court cannot re-evaluate the entire evidence because evaluation of evidence is primarily the duty of the trial Court who saw, heard and assessed the Witnesses and nothing more. He again referred us to the Cases of FAGBENRO V. AROBADI (2006) 7 NWLR (PT.978) 174 AND OJOKOLOBO V. ALAMU (1998) 9 NWLR (PT.565) 222 in this respect.

It is the argument of the learned Counsel for the Respondents that the Respondents traced their root of title to Galadima Kpandarako as can be seen in paragraph 2 of their Amended Statement of Defence/counter-claim which was duly served on the Appellant without being controverted. To substantiate their above assertion, they referred this Court to authorities of AMOBI V. AMOBI (1996) 8 NWLR (PT.469) 638, OLOWOFOYEKU V. AG OYO STATE (1996) 10 NWLR (477) 190 AND ITO V. EKPE (2000) 2 SC 98.

Citing pages 280-281 of the Records, the learned Counsel for the Respondents argued that the Appellant was wrong to have construed the decision of the trial Court in isolation and that the Appellant failed to draw a distinction between summations, re-statement or recanting of evidence and evaluation and findings in relation to the evidence. He further referred us to pages 96-97 of the Records in submitting that under cross-examination the testimony of PW1 was contrary to paragraphs 4.09-4.0.10 of the Appellant’s Amended Statement of Claim and that the trial Court at pages 278-282 of the record/judgment diligently evaluated the contradictions to arrive at his decision.

Flowing from the above, the learned Counsel for the Respondents submitted that it was the position of the trial Court that the evidence of the Appellant’s Witnesses under cross-examination supported the Respondents’ averments in paragraphs 2, 3, 4 and 6 of the Amended Statement of Defence/counter-claim and that the argument of the Appellant did not emanate from the record for parties were bound by the records. He maintained that paragraphs 2, 3, 4 and 5 of the Amended Joint Statement of Defence/counter-claim contained a summary of the Respondents’ traditional history on the founding of the land by Galadima Kpandarako and their claim of devolution up to the current 2nd and 3rd Respondents and how it was entrusted to the 1st Respondent’s father Dogari which trust subsequently fell on him based on his father’s demise. He cited pages 143-144 of the Records to buttress the above submission.

The learned Counsel for the Respondents further submitted that contrary to the submission of the Appellant in paragraph 4.07 of his Brief of Argument, the trial Court diligently evaluated the evidence placed before him before reaching a conclusion and so it would be wrong to argue that the decision of the trial Court was perverse. To strengthen their case, he relied on the authority of LAGGA V. SARHUNA (2008) 16 NWLR (PT.1114) P. 427 AT 460 PARA E. It is the contention of the learned Counsel for the Respondents that by virtue of an Order dated 18th May, 2014, the suit was commenced de novo and so it would be appropriate to cite paragraphs 7 and 9 of the Appellant’s original Statement of Claim where he correctly averred that his father Ibrahim Makama was actually given the land by its original founder Galadima Kpandarako who was the original settler and first person to disvirgin the land and settle thereon. To buttress his case, he referred this Court to authorities of CHEVRON NIG LTD V. ONWUGBELU (1996) 3 NWLR (PT.437) 404 AND DAGGASH V. BULAMA (2004) 14 NWLR (PT.892) AT 233 RATIO 30 in submitting that the Court is entitled to look at any document contained in the Court’s file to arrive at justice.

In the light of the foregoing, the learned Counsel for the Respondents rounded up his argument by submitting that the trial Court properly evaluated the entire evidence placed before him. Therefore, they urged this Court to dismiss the appeal and affirm the decision of the trial Court.

RESOLUTION OF THE SOLE ISSUE:
WHETHER THE TRIAL COURT PROPERLY EVALUATED AND WEIGHS THE EVIDENCE ADDUCED BY THE WITNESSES OF THE RESPECTIVE PARTIES IN THIS APPEAL BEFORE ARISING AT ITS DECISION IN FAVOUR OF THE RESPONDENTS?

Jurisprudentially, it has always been the duty of the trial Court to receive all relevant evidence led by the Parties and their witnesses and then proceed to weigh them in the context of the surrounding circumstances of the case; that is evaluation and afterwards attach probative value to the most preferred evidence. Without much ado, the crux of this appeal as argued by the learned Counsel to the respective parties is whether the trial Court properly considered the evidence of their respective Witnesses before arriving at its decision? The Emeritus Law Lord of the Apex Court, per MUHAMMAD, JSC in the case of ILIYA AKWAI LAGGA V. AUDU YUSUF SARHUNA (2008) LPELR-1740 (SC) opined that:
“Now in evaluating any piece of evidence placed before it by parties, a Court of law is duty bound to consider the totality of the evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other.

Thus evaluation of evidence entails the assessment of same so as to give value or quality to it… “
Again, it is the sacred or bounding duty of the trial Court to consider by way of evaluation all pieces of evidence placed before it. In this vein, evaluation of evidence entails the trial Judge examining all the evidence before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. Thus, evaluation involves reviewing and scrutinizing as well as estimating the evidence and it is by this process that the Court can arrive at the proper decision of who to believe and who to disbelieve. Thus, the belief must be a reasoned preference of one version of the evidence to the other. See the authorities of MOGAJI V. ODOFIN (1978) 4 SC 1, AJAGBE V. IDOWU (2011) NWLR (PT.1276) 422 AND AKINBADE V. BABATUNDE (2018) 7 NWLR (PT. 1618) 366 AT 395.
More so, the Supreme Court in the case of BABA V. N.C.A.T.C (1991) 5 NWLR (PT. 192) 388 AT 422 held that:
“I believe it to be the law that facts on any issue in a civil case are assessed and evaluated by holding the evidence called by both sides to the conflict on the Issue on either side of an imaginary balance and weighing them together. Whichever outweighs the other ought to be accepted. See the case of A.R MOGAJI & ORS V. RABIATU ODOFIN (1978) 4 SC 91 AT 94-96.”
Accordingly, in the determination of this appeal, recourse shall be had to the testimonies of PW1, PW2 and PW3 together with that of DW1-DW5 and the pleadings of the respective parties to ascertain whether or not the trial Court properly evaluated the evidence placed before him. This is particularly so because the law is settled that evaluation of evidence entails the assessment of the totality of the evidence placed before the Court.

Consequently, it is instructive to assert that the Appellant mainly relied on traditional history in proof of his case as can be seen in paragraphs 6 and 7 of his Amended Statement of Claim while the Respondents anchored theirs on the Customary Right of Occupancy as well as traditional history in proof of their counter-claim. See paragraphs 2, 3, 9 and 10 of the Respondents Joint Statement of Defence/counter-claim. To this effect, the Apex Court succinctly laid down three (3) fundamental requirements a claimant must prove when relying on the evidence of traditional history in an action for declaration of title to land. These requirements are as follows:
a. Who founded the land in dispute
b. How they founded the land
c. The particulars of the intervening owners through whom they claim.
See the authorities of NKADO V. OBIANO (1997) 1 NWLR (482) 374 SC, OHIAERI V. AKABEZE (1992) 12 NWLR (221) 1, MOGADI V. CADBURY NIG LTD (1985) 2 NWLR (7) 393 AND ELEGUSHI V. OSENI (2005) 7 SC (PT. 111) 205 AT 213-214. Following the tripartite legal requirements, the Appellant in paragraphs 8, 9, 10 of his Amended Statement of Claim pleaded inter alia:
“8. The Plaintiff states that he inherited the disputed land from his father Ibrahim Makama now deceased who was a cattle rearer.
9. That Galadima Kpandarako did not disvirgin the disputed land.
10. The Plaintiff states that the disputed land was disvirgined or deforested by his father Ibrahim Makama and the Plaintiff inherited the land from his father.”
Accordingly, PW1 testified under cross-examination inter alia:
“Some part of the land in dispute is vacant while people are living on some part. Galadima mentioned in paragraph 7 of evidence-in-chief is the same person as Galadima Kpandarako. I do not know one Alh. Mohammed Sarki Numa of Maikunkele. I do not know Alh. Ahmadu Tukura of Maikunkele or Alh. Yusuf Tukura. I live at Tunga off David Mark Road Minna. I come from Maikunkele village via Minna. The land in dispute is situate at the Western near Hakimi of Maikunkele’s house. Before the matter came to Court, it had been tabled at the Dogaci Maikunkele’s house by my nephews, my late brother’s Children. My brother their father died over 20 years now. I was invited at the Dogaci’s house on the matter. The matter was resolved that the land in dispute be shared between me and the Defendant which I objected to. This was in 2011. The people living on the land some got it from the Maianguwa of where the land is situate i.e Nakorpaipi who is the caretaker of the land entrusted to him by my late father. The others I do not know who gave them the land. I was born and brought up at Maikunkele. Umaru Dogari is living at Maikunkele inside the land in dispute since the 1970’s. Dogari is Umaru’s father who also lived and died on the land. Dogari’s father is not related to Galadima Kpandarako. I do not know the 2nd Defendant Ibrahim Nakorji or the 3rd Defendant Bako Wokili Nakorji.
My father left the land as far back as 1973. My father was both farming and rearing cattle. It was when the anomalies on land were discovered by my nephew and he came to inform me that I decided to get back the land. Dogari died about 5 years from now 2015. Dogari had died before my nephew laid the complain to the Dogaci. The land is bounded on the East by Galuko i.e the Hakimi’s place on the South by Kaluewe, on the North by Kabmo or Towu land and on the West by Kuchiko hill.
Presently, I do not know any of Galadima’s Children except some of his grand Children namely Yakubu Danmallam, another Yakubu whose name I do not know, a retired Civil Servant. The 1st Yakubu is still a serving Civil Servant and teaches at Government Secondary School Maikunkele.”
PW2 in paragraphs 6 and 7 of his Witness Statement on Oath stated that:
“6. The Plaintiff inherited the land from his father Ibrahim Maikunkele now deceased who was a cattle rearer. That Galadima Kpandarako never disvirgin the disputed land at Maikunkele.
7. That Ibrahim Makama is the original settler on the disputed land who was the first person to disvirgin it. That Galadima Kpandarako never farmed the disputed land.”

Furthermore, under cross-examination, PW2 at page 216 lines 1-5 testified thus:
“Between Aruba Usman’s father and Dogari, I do not know who first came to the land in dispute. I do not know if Galadima Kpandarako gave the Plaintiff’s father Makama the land he settled on. I do not know when the Plaintiff’s father came to settle on the land. I met Doqari before his death.”

Again, PW3 under cross-examination as can be seen at pages 219- 220 of the Record reveal thus:
“Galadima Kpandarako did not farm on the land in dispute but was an elder in the community. Ibrahim Makama is the father of the Plaintiff he first settled on the land when Maikunkele village was still settled on the hill. It met Galadima Kpandarako, I was the one that mixed mud for building of his house when he came down from the hill. Diogari, the 1st Defendant’s father came down and settled in the house of Kpandarako. After Kpandarako’s death, the Plaintiff’s father then gave Digari land where he built his house… “

On the contrary, DW1 under cross-examination at page 223-224 lines 5-8; 19-26; 31-32 of the Record inter alia:
“I know Ibrahim Makama, he came to borrow land from Galadima Kpandarako to settle and rear his cattle and this land is situate at Maikunkele. I don’t know how long this was because we do not use to write these down. Ibrahim Makama was a cattle rearer and not a farmer… the land given to Ibrahim Makama to rear his cattle is part of the land in dispute. It is part of Gbagyi culture to borrow land to someone. I was not present when the land was borrowed to Ibrahim Makama, the 1st Defendant Umaru was not there, the 2nd Defendant Ibrahim Nakorji was there and the 3rd Defendant Bako Wokili Nakorji was not there and the Plaintiff was not there… the land in dispute was entrusted to Dogari to watch over by Galadima.”

Still on the same score, the testimony of DW2 can be gleaned at pages 228-230 lines 31-32; 37-39 of the Record as follows:
“I know Ibrahim Makama, he migrated from Rafin Yashi and was not the first to cultivate the land… Kpandarako told us that he inherited the land from his father whose name I don’t know. Kpandarako was the first to give the land, entrusted to Dogari in my presence.”

Furthermore, DW3 at pages 232 lines 18-19; 23-26; 30-32 of the Record testified that:
“I know Galadima Kpandarako, he was my paternal grandfather. I cannot remember the year he died. I know him as the 1st person to found the land… l and Bako the 3rd Defendant gave Umaru Dogari the farm land to look after before whom, Umaru’s father was in charge given to him by Kpandarako. I was present when Kpandarako put Dogari in charge of the land as he got old; we were still farming for him on the land… Ibrahim Makama did not cultivate the land but Kpandarako.”

Following suit, the testimony of DW4 under cross-examination at page 235 lines 7-11 read thus:
“I don’t know Ibrahim Makama. It is not true that Ibrahim Makama first disvirgined the land in dispute. I was told by my father that it was his father, my grandfather who first came to the land. I farmed on the land during the life time of my father. My father died 18 years ago in 2001. Since his death, I farm on the land for my elder brother as it is now his property.”

From the state of the pleadings and the evidence adduced before the trial Court, it is quit clear that parties relied on traditional history in proof of their title to the disputed land. However, in placing their evidence on the imaginary scale of justice as to who founded the land, how it was founded and the particulars of succession, there is no doubt that the Appellant’s pleadings and evidence were quite contradictory. A careful perusal of the testimony of PW2 under cross-examination reveals that Galadima Kpandarako lived on the disputed land before his death and the 1st Defendant was born on the disputed land coupled with the fact that he lived all his life thereon. He further stated that he knew the 1st Defendant’s father who lived and died on the disputed land. Whereas paragraphs 6 and 7 of his Witness Statement on Oath contradicted the whole story that Gladima Kpandarako never disvirgined nor farmed on the land. Still under cross-examination, PW2 stated further that he did not know whether it was Galadima Kpandarako that gave the disputed land to the Plaintiff’s father.

Again, PW3 on the 6/5/2015 testified under cross-examination that:
“I met Galadima Kpandarako; 1st Defendant’s father Dogari came and settled in Galadima Kpandarako’s land; same land given to 1st Defendant’s father is part of the land in dispute.” Furthermore, on the identity of the disputed land, it is quite unfortunate that PW1, PW2 and PW3 gave different descriptions of the said land which is contrary to what was pleaded in the Amended Statement of Claim. It is pertinent to note that in the Amended Statement of Claim, the land was described as: a piece of land situate at Maikunkele bounded in the East by Kaluwe people in the West by the house of late Tukura, in the North by one Aruba Usman and in the South by Ingila Towus. But PW1 under cross-examination testified that the land is bounded on the East by Galuko i.e the Hakimi’s place, on the South by Kaluwe, on the North by Kabmo or Ingila town and on the West by Kuchiko hill.

Still on the same score, PW2 at page 215 of the record testified under cross-examination that the land is bounded on the South by the Plaintiff’s land, on the East by Kaluwe and venmoi stream, on the North with Numuoko and on the West by Bosso Local Government Secretariat. Meanwhile, PW3 at page 219 of the record testified under cross-examination that the land shares boundary with Kaluwe, on the West with Ingils Tawu’s land and the road from Maikunkele town to the airport, on the South with Kuchiko/Kukun (hill) and the North with my house which used to be Ibrahim Makama’s father’s house.

As can be gleaned from the Record, there is no doubt that the above contradictory description was denied by the Respondents at paragraph 4 of their Amended Joint Statement of Defence/counter-claim as follows:
“The subject matter in dispute is situate at Maikunkele and in the East bounded with the Kaluwe people particularly with a stream called “Venbour stream”; the West is bounded by Kabwo rock; the North is bounded with to the old tarred road which passes from Minna through the former Bosso Local Government Secretariat and in the South bounded with Kutiko rock/hill. “

The Supreme Court in a plethora of authorities had long established that the identity of the land in dispute will only be an issue where the Defendant in his Statement of Defence specifically disputed the description of the land given in the Plaintiff’s Statement of Claim. This was the sound reasoning of the Emeritus DAHIRU MUSDAPHER, JSC in the case of GBADAMOSI V. DAIRO (2007) SCNJ PG 444; (2007) 3 NWLR (PT. 1021) PG. 282 AT 302; where he opined that:
“It is now settled law that requires no citation of any authority that the identity of land in dispute will only be in issue if and only if the Defendant in his Statement of Defence makes it one.”

Flowing from the above, it is crystal clear that the description of the disputed land given by the Appellant in his Statement of Claim contradicted the entire evidence adduced by PW1, PW2 and PW3 during cross-examination.

At this juncture, assuming the trial Court believed the evidence of the Appellant to be more credible and reliable, which of the land described by the three witnesses would a declaration of title be made in respect of? This is why the Apex Court in UKAEGBU V. NWOLOLO (2009) 1 SCNJ 49 AT 54 RATIOS 17, 18, 19, 20 and 21 was of the opinion that: “The duty of any Claimant of title to land is to show exactly and precisely a defined and identifiable area to which the claim relate.” It is the law that where a Plaintiff/Appellant claims for a declaration of title and injunction, the area of the disputed land must be properly described and identified in view of the order. This is so because the disputed land must be described with definitive certainty so as to be entitled to the order sought. Therefore a relief for declaration of title being discretionary cannot be granted by any Court when the description of the land is not clear enough or unambiguously established. Anchoring on the above stated principle, it is mandatory for the Plaintiff/Appellant to establish with certainty and accuracy the identity of the land he claims because it is a “conditio sine qua non” meaning a condition precedent to the success of the claim and failure to do so would amount to unfruitfulness of the claim sought.

On another score, the submission of the Appellant at paragraph 4.0.6 of his Brief of Argument holds no firm moment because from his Amended Statement of Claim particularly paragraph 17, he pleaded that he was the one who reported the matter to Dogaci as can be seen hereunder: “The Plaintiff states that a complaint was lodged by him at the Dogaci of Maikunkele…” but in paragraph 11 of his Witness Statement on Oath, he stated that: “the complaint was lodged by Yohana’s Children…” while under cross-examination, he testified that it was his late brother’s Children (Nephews) who lodged the complaint.

Accordingly, the law is settled that parties are bound by their pleadings and that evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the Court. See the case of OVIAWE V. I.R.P (NIG) LTD (1997) 3 NWLR (PT.492).

Furthermore, since the Appellant had pleaded in paragraph 17 of his Amended Statement of Claim that he was the one who reported the matter to the Dogaci of Maikunkele and adduced under cross-examination that it was his late brother’s Children who lodged the complaint to the Dogaci of Maikunkele these could only be contradictions in favour of the Respondents because from their Witnesses’ Statements on Oath as can be gleaned from paragraphs 14 of DW5; 15 of DW4; 18 of DW1; 17 of DW2 and 18 of DW3, he (Appellant) did not lodge any complaint on the issue. It was for the above reasons that the trial Court held at page 282 lines 4-7 inter alia:
“Evidence elicited from a Plaintiff’s Witnesses in cross-examination forms part of the case for the Defence. See AYOOLA V. YAHAYA (2005) 7 NWLR (PT.923) 122, UNION BANK PLC V. SPARKLING BREWERIES LTD (1997) 3 NWLR (PT.491) 29 AT 51 PARAS E-F.”

Again, with regard to the Appellant’s submission in paragraph 4.0.8 of his Brief of Argument, under cross-examination, PW2 testified that Galadima Kpandarako was his Grandfather and by implication, his evidence supports the case of the Respondents as can be seen in paragraph 5 of their Amended Statement of Defence/counter-claim when they traced their root of title to the said Galadima Kpandarako as follows:
“The Defendants aver that the 1st Defendant’s father Dogari was only given the land to hold in trust by Galadima Kpandarako since his Children were not resident with him at that particular time and it was upon the death of Dogari that his son Umaru became entrusted with the property with the express consent and approval of the 2nd and 3rd Defendants who were the surviving children of Nakoji Galadima, the son to Galadima Kpandarako.”

It is instructive to assert that the above facts were pleaded in the Respondents’ Statement of Defence/counter-claim and a reply to counter or discredit same was not filed or thought of.

In conclusion, there is no doubt that the Respondents equally anchored their counter-claim on traditional history and from their pleadings, it is clear that DW1, DW2, DW3, DW4 and DW5 adduced evidence-in-chief on the founder and founding of the disputed land and the chain of succession up to the reign of the 2nd and 3rd Respondents. The said evidence were not contradicted during cross-examination. It is also undoubted that the Appellant’s pleadings also contain ample facts as to Galadima Kpandarako being the founder of the disputed land, how it was founded by him and the intervening line of succession up to the 2nd and 3rd Respondents.

Again, the Respondents’ description of the disputed land satisfied the legal requirement enunciated in the case of UKAEGBU V. NWOLOLO (supra) and to crown it all they had also been in lawful, peaceful and undisturbed possession of the disputed land for more than 5 decades. This was succinctly adduced during the cross-examination of PW3 who was born in the year 1932 and was 82 years as at when his Statement on Oath was taken thus: “…1st Defendant’s father Dogari came and settled on Galadima Kpandarako’s land… Galadima Kpandarako died when I was in Bible College in 1953.”

In furtherance of the above position, PW2 who was 66 years as at when his Statement on Oath was taken equally adduced during cross-examination on 30/3/15 that:
“Galadima Kpandarako lived in the disputed land before his death; the 1st Defendant also lives on the disputed land; he was born on the disputed land; I know the 1st Defendant’s father, he lived and died on the disputed land… “

On the 7/4/16, DW5 testified that he is 50 years and has lived on the disputed land since he was born. See page 236 lines 2 and 10 of the Record.

Consequently, from the galore of authorities cited and from the submissions of the learned Counsel to the respective parties, it is my considered view that the trial Court was right to have held at page 287 of the Record/Judgment that:
“On the whole, the Court after placing the totality of evidence of both parties on the scale of justice finds it tilts in favour of the Defendants as they have successfully discharged the burden of proof on them by proving on the balance of probability, their claim against the Plaintiff as required by law. See Section 134 of the Evidence Act, 2011 (as amended). This fit the Plaintiff has failed to achieve and the consequence of which is that the Plaintiff’s case fails and same is hereby dismissed.”

Accordingly, this appeal is unmeritorious and is hereby dismissed. The judgment of the trial Court delivered on the 2nd day of December, 2016 by His Lordship, Hon. Justice AISHA A. L. BWARI, is hereby affirmed. I make no order as to costs.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment just delivered by my learned brother, Ignatius Igwe Agube, JCA, and I agree with his reasoning and conclusion, completely, that the appeal lacks merit.

Appellant’s sole issue for the determination of the appeal is that the trial Judge did not properly evaluate and weigh the evidence adduced by witnesses at the trial, before arriving at his decision. That is not correct, as can be seen in the elaborate review of the judgment of the trial Court by my learned brother, Agube, JCA, which clearly shows the industry of the learned trial Judge in evaluating the evidence adduced by the witnesses before arriving at his decision.

I too dismiss the appeal and abide by the consequential orders in the lead judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, Ignatius Igwe Agube, JCA. I agree with the reasoning and conclusion contained therein.

In support, it is necessary to reiterate as clearly stated in the lead judgment that a Plaintiff who seeks a declaration of title to land has a burden to clearly establish such relief and the five (5) methods of proof of title to land as enunciated in the celebrated case of IDUNDUN V. OKUMAGBA 1976 6 – 9 SC 227, followed in ATANDA V. AJANI 1989 3 NWLR PT. 111 511 and KYARI V. ALKALI 2001 FWLR PT. 60 1481 amongst plethora of authorities.

In view of the foregoing as well as the other reasons carefully laid out in the lead judgment, I also find the appeal unmeritorious. It is in consequence hereby dismissed. The judgment of the High Court of Niger State, Minna Judicial Division, delivered on December 2nd, 2016 by his Lordship, Hon. Justice Aisha A. L. Bwari, is hereby affirmed.

I make no order as to costs.

Appearances:

I .M. Ndamitso, Esq. For Appellant(s)

E. K. Philip, Esq. (Notary Public) For Respondent(s)

LawCare Nigeria

IBRAHIM v. DOGARI & ORS (2022)

laweditor

YOU MAY HAVE MISSED

SCHOOL OF MINES AND GEOLOGICAL STUDIES (ESTABLISHMENT) ACT, 2022

RAW MATERIALS RESEARCH AND DEVELOPMENT COUNCIL ACT, 2022

PROCEEDS OF CRIME (RECOVERY AND MANAGEMENT) ACT 2022

PLANT VARIETY PROTECTION ACT, 2021

laweditor

Related Story

YOU MAY HAVE MISSED