IYA & ORS v. SHINCKEPE & ANOR (2020)

IYA & ORS v. SHINCKEPE & ANOR

(2020)LCN/14280(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, June 09, 2020

CA/MK/113/2016

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. MUSA T. IYA 2. SAMAILA SARKIN BAKA 3. EZEKIEL BAWA JABAYI APPELANT(S)

And

JEZHI SHINCKEPE 2. SHEKWOLO BITRUS (For Themselves And On Behalf Of The Shinchepe Family Of Zokonu In Korape District, Karu Local Government Area Of Nasarawa State) RESPONDENT(S)

RATIO

WHETHER OR NOT A PERSON CLAIMING A DECLARATION OF TITLE TO LAND MUST PROVE BY EVIDENCE THAT HE IS ENTITLED TO THE DECLARATION HE SEEKS

It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. PER OTISI, J.C.A.

WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (supra), (2000) 6 S.C. (PT 1) 214; Ikpamaku v Makolomi (supra). The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233 (SC). The party that is able to prove title to land in issue is deserving of judgment. PER OTISI, J.C.A.

WHETHER OR NOT A PARTY WHO RELIES ON TRADITIONAL HISTORY IN PROOF OF TITLE TO LAND MUST GIVE SATISFACTORY EVIDENCE AS TO HOW HE DERIVED THE PARTICULAR TITLE PLEADED

The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. Once a party pleads and traces his root of title to a particular person, he must establish how that person came to have title invested on him. Thus, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged; Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC); Osafile v Odi (1994) LPELR-2784(SC); Ngene v Igbo (supra). The Respondents therefore had the burden to prove their case. PER OTISI, J.C.A.

THE IMPLICATION OF A GENERAL TRAVERSE

It has been argued, as was canvassed for the Respondents herein, that a general denial is no denial at all but rather that it amounts to anadmission of the facts contained therein. This argument stands in line with judicial pronouncements such as was made in: Akintola & Anor v. Solano (1986) LPELR-360(SC); Auto Import Export v. Adebayo & Ors (2005) LPELR-642(SC); Bamgbegbin & Ors v. Oriare & Ors (2009) LPELR-733(SC); Dorkubo & Ors v. Udoh & Anor (2016) LPELR-41167(CA), to mention but a few. On the other hand, there are other pronouncements which state that a general denial in pleadings have the unswerving effect of casting on the plaintiff the burden of proving the allegation denied. See: Ace Jimona Limited v. Nigerian Electrical Contracting Company Limited (1966) LPELR-25277(SC); Umesie & Ors v. Onuaguluchi & Ors (1995) LPELR-3368(SC); Arisons Trading & Engineering Company Limited v The Military Governor of Ogun State & Ors (2009) LPELR-554(SC). This seeming conflict or muddle was, however, eloquently clarified by Nweze, JSC in Dairo & Ors v. Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR-42573(SC) and the current settled position of the law expounded in this manner, pages 13 – 14 of the E-Report: “It is acknowledged that the implication of a general traverse had generated so much confusion in juristic thought due to the conflicting pronouncements of our Courts. However, it is now, tolerably, clear that the denial of a particular paragraph in a Statement of Defence, by means of the general traverse, had the same effect as a specific denial of it. Its effect, solely, is to put the plaintiff to strict proof of the allegation in that Paragraph, ACE Jimona Ltd v. NECC Ltd (1966) 1 All NLR 122, 124; Attah and Anor v. Nnacho and Ors (1965) NMLR 28. It has indeed been recognized as convenient and permissible. Its effect is that it casts on the plaintiff the burden of proving the obligation denied. Umesie v. Onuaguluchi (1995) 12 SCNJ 120. PER OTISI, J.C.A.

WHETHER OR NOT EVIDENCE NOT PLEADED GOES TO NO ISSUE

It is trite law that evidence of facts not pleaded go to no issue; Ohiaeri & Anor v. Akabeze & Ors (1992) LPELR-2360(SC); Petrojessica Enterprises Ltd & Anor v. Leventis Technical Co. Ltd (1992) LPELR-2915(SC); Amodu v. Commandant, Police College Maiduguri & Anor (2009) LPELR-467(SC); Anyafulu & Ors v. Meka & Ors (2014) LPELR-22336(SC); Aminu & Ors v. Hassan & Ors (2014) LPELR-22008(SC); Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463 (SC). PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice of Nasarawa State sitting at Mararaban Gurku Coram Rose G. Soji J., delivered on March 24, 2016 in Suit No. NSD/MG94/2011 wherein the trial Court entered judgment in favour of the Respondents.

The facts leading to the appeal, as can be gleaned from the Record of Appeal, are as follows: the Respondents, as plaintiffs, approached the trial Court, for themselves and on behalf of the Shinchekpe family of Zokonu in Kurape District, Karu Local Government Area of Nasarawa State, seeking, by an Amended Statement of Claim, the following reliefs against the Appellants, as defendants: –
i. A Declaration that the land lying, being and situate at Agnuzhagbabwi, Bakin Ado near Karshi, Karshi District, Karu Local Government Area of Nasarawa State belong to the Shinchekpe family and that it is the only family or body that is entitled to be issued a Certificate/Right of Occupancy over same to the exclusion of any other person(s).
ii. A Declaration that having failed to pay to the Plaintiffs the outstanding balance of Eight

Million, Eight Hundred Thousand Naira (N8,800,000.00) only for the purchase of the said land, the transaction in respect of the said land between the Shinchekpe family and the Defendants stand rescinded or revoked.
iii. A Declaration that having challenged the ownership of the Shinchekpe family over the said land, the Plaintiffs are liable for forfeiture of the customary tenancy relationship between them and the Shinchekpe family.
iv. An Order of forfeiture against the Defendants jointly and severally.
v. A Declaration that the Shinchekpe family is entitled to resell the said land and to refund the Defendants’ advance payment.
vi. A Declaration that the Defendants are trespassers.
vii. An Order to the Defendants to vacate the said land forthwith.
viii. An Order of Perpetual Injunction restraining the Defendants either by themselves, privies, assigns, representatives, heirs, executors, successors-in-title, agents or servants or any person howsoever described, from further entry into, interference with, alienating, selling or otherwise dealing with the said land in anyway whatsoever.
ix. An Order setting aside any purported

sale, alienation or transfer of the said land or any portion of same by any of the Defendants to any person(s).
x. The sum of Two Million Naira (N2,000,000.00) only as damages.

At the hearing, the Respondents called five witnesses in proof of their claim and closed their case while the Appellants testified in their defence. The trial Court also visited the locus in quo. At the conclusion of hearing, the trial Court entered judgment in favour of the Respondents. Dissatisfied by the decision, the Appellants lodged the instant appeal by Notice of Appeal filed on 11/4/2016. The Appellants, with leave of Court filed an Amended Notice of Appeal on 6/12/2018 but deemed properly filed and served on 21/5/2019 on ten grounds of appeal.

In compliance with the Rules of this Court, the parties filed Briefs of Argument. The Appellants’ Brief was filed on 6/12/2018 but deemed properly filed and served on 21/5/2019. The Respondents’ Brief was filed on 19/6/2019. The Appellants also filed a Reply Brief on 18/3/2020, which was deemed properly filed and served on 18/3/2020. At the hearing of the appeal on 18/3/2020, all the Briefs were respectively

adopted by I.M. Zubairu, Esq. for the Appellants and M. M. Hirse, Esq., with F.T. Kusugh, Esq., for the Respondents.

Mr. Hirse invited the Court to note that the Appellants had merely reargued the appeal in their Reply Brief. Upon close scrutiny of the Reply Brief, I found that this was indeed the case. An appellant would be required to file a reply brief to respond to or answer any new or fresh point of law raised by a respondent; Order 19 Rule 5 of the Court of Appeal Rules, 2016. See also: Onwubuya & Ors. v. Ikegbunam (2019) LPELR-49373(SC); Awusa v. Nigerian Army (2018) LPELR-44377(SC); Mozie & Ors v. Chike Mbamalu & Ors (2006) LPELR-1922(SC). Therefore, a reply brief need not be filed if there is no new issue raised in the respondent’s brief that ought to be addressed. The issues distilled for determination in both the Appellants’ Brief and the Respondents’ Brief were practically the same issues, though formulated in different terms. In this light, there was no need for a Reply Brief that would simply rehash arguments already contained in the Appellants’ Brief. The Reply Brief shall therefore be

discountenanced.

The Appellants, out of ten grounds of appeal, distilled five issues for determination as follows:
i. Whether the trial judge was not wrong to have held that the Appellants are customary tenant to the Respondents over the disputed land in view of the substantially irreconcilable conflicts embedded in the Respondents’ evidence on who loaned the land to the Appellants parents. Grounds one, five, six and eight of the notice of appeal.
ii. Whether the trial judge was right when he held that the Respondent has established their title to the disputed land despite no evidence in support of the pleadings. Grounds two and four of the notice of appeal.
iii. Whether the learned trial judge was not wrong to have held that the Plaintiffs has successfully established alleged payment of deposit of N1,200,000.00 by the Appellants to the Plaintiffs/Respondents despite no evidence supporting it. Ground seven of the notice of appeal.
iv. Whether the failure of the trial judge to properly evaluate the evidence of parties adduced before her and what transpired at the locus in quo is not a breach of the Appellant’s constitutional right to

fair hearing. Grounds nine and ten of the notice of appeal.
v. Whether the learned trial judge was not wrong to have held that the evidence of Pw2 still stands strong despite the manifest contradiction in his evidence. Ground 3 of the notice of appeal.

For the Respondents, the following Issues were formulated:
i. Whether the Respondents discharged the onus placed on them by law to entitle them to judgment at trial.
ii. Whether or not the Appellants were customary tenants of the Appellants.
iii. Whether long possession of the disputed land by the Appellants transformed into ownership of same against the Respondents who had established a better title at trial.
iv. Whether the trial Court properly evaluated the evidence of the parties at trial before arriving at its decision.

The Issues as framed by the parties are all entwined. However, in order to achieve a more comprehensive consideration of the complaints of the Appellants, I shall reframe the issues for determination as follows:
i. Whether the Respondents discharged the onus placed on them by law to entitle them to judgment at trial.
ii. Whether the Respondents

successfully proved that the Appellants were their customary tenants and that payment of a deposit of N1,200,000.00 by the Appellants to the Respondents for the land in dispute was established.
iii. Whether long possession of the disputed land by the Appellants transformed into ownership of same against the Respondents.
iv. Whether the trial Court properly evaluated the evidence of the parties at trial before arriving at its decision.

Being interrelated, I consider it expedient to consider the issues together.

Arguments
The Appellants contend that the Respondents, who relied on the traditional evidence to prove title, failed to prove their ownership of the land in dispute. The case of Eze v Atasie (2000) WRNN 73 at 75 was relied on to submit that the elements that must be proved to establish title when traditional evidence is relied upon were not proved. Citing and relying on Ikpamaku v Makolomi (2012) 14 WRN 61 at 69, it was submitted that a claimant in cases of this nature must rely on the strength of his case and not on the weakness of the defence. The evidence of traditional history given by the Respondents was weak and not

reliable as there were gaps in the evidence.

It was contended that the Respondents failed to establish that the Appellants were their customary tenants over the land in dispute. The Respondents, from the evidence adduced, did not satisfy the legal requirements as required by the law, citing the case of Diyalpwan v Golok (2002) 1 QCLRN 284 at 285. From the evidence adduced by the Respondents, who gave the disputed land to the Appellants’ fathers or to the Appellants was not clear. There was no evidence to support the claim of customary tenancy. While the PW3 and PW4 testified that it was the 1st Respondent who loaned the land to the Appellants’ parents or the Appellants, the said 1st Respondent was not called upon to adopt his statement on oath to enable the Appellants’ Counsel to cross-examine him. The Court was urged to hold that the implication was that the statement on oath of the 1st Respondent was deemed abandoned, in which case the alleged loaned transaction was not proved. Pleadings must be supported by evidence and parties are bound by their pleadings. Where there is no evidence supporting the pleading, such pleaded facts are deemed

abandoned, citing the case of Gbadamosi v Ajibode (2012) 50 WRN 144 at 149. It was further submitted that where a party gives materially contradictory evidence on an issue which is pivotal to his case as the instant one, the entirety of his evidence must be rejected on the issue, relying on Goyang Kayili v Esly Yilbuk & 2 Ors (2015) 7 NWLR (PT 145770 26 at 77; Al-Rissalah Printing & Publishing Co. Ltd & Ors V. El-Housseini & Ors (2008) VOL 14 WRN 778.

The Appellants, who had denied the allegations of the customary tenancy and went further to state that each of the Appellants inherited their respective portions from their fathers. They contended that these facts, as was averred in the Joint Statement of Defence, were not challenged by the Respondents. The Appellants, who were found to be in possession of the disputed land, are presumed by Section 146 of the Evidence Act to be the owners of the land in dispute until the contrary is proved to rebut the presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy and the onus is on the Respondents to show that the Appellants are on the land with their

consent. The case of Adediji v Kolade (2012) 44 WRN 22 at 36 was cited and relied on.

On the allegation that there was a part payment of N1, 200,000.00 by the Appellants to the Respondents in respect of the disputed land, it was submitted that the allegation was not established by the Plaintiffs. The Respondents did not place any documents before the trial Court evidencing the payment and gave no details such as which of the Appellants paid the money or where the money was paid. He who assert must prove what he asserted, citing the cases of Obanye v Mbamalu (2012) 4 WRN 143 at 147; Somorin v Adekanbi (2012) 14 W.R.N 126 at 132. It was further submitted that the failure of the Respondents to establish the alleged customary tenancy in the details as required of the law goes to show that the evidence of their traditional history is of no moment as same goes to no issue.

It was also argued that the Respondents did not specifically describe the exact portion of the land alleged to have been given to each of the Appellants’ fathers. The Respondents merely gave the boundary of disputed land. It was submitted that it is the duty of the Respondents to

describe with certainty the portions given to each of the Appellants, which they failed to do, citing and relying on the case of Jodi v Salami (2009) 27 W.R.N 24 at 37. Reliance was also placed on Onwuka v Ediala (1989) 1 NWLR 182 at 184.

The learned trial Judge had acknowledged that the evidence of PW3 and PW4 as to who gave the disputed land to the Respondents was contradictory, but described the contradictions as minor and not material, without stating how that conclusion was arrived at. It was argued that the contradictions were not minor but fundamental. The contradictions in the evidence of PW4 struck at the main complaint of the Respondents and therefore was very fundamental and material. The trial Court cannot choose and pick which of the conflicting evidence to rely on, citing Andy Obiora Onwonalu v Dr Emmanuel O. Uche (2010) 2 NWLR, (1179) 582 at 589. It was posited, that on the evidence adduced, the trial Court ought not to have declared the Respondents the owners of the disputed land as they failed to lead credible, cogent and convincing evidence in support of traditional history they relied on.

It was submitted that it is the primary

duty of the trial Court to evaluate and ascribe a probative value to admissible evidence be it oral or documentary. An Appellate Court will not ordinarily interfere with the evaluation or appraisal carried out by the trial Court except where same is perverse. Decisions cited include Ayorinde v Ayorinde (2011) 17 W.R.N 74 at 82; Joseph Sammy & Sons Ltd v Agbonlahor (2012) 25 WRN 57 at 60. The Appellants contended that the learned trial Judge failed to evaluate the evidence on record with respect to the claims before it, making it necessary for this Court to intervene. The trial Judge had visited the locus in quo but made no findings throughout the judgment as regards the visit and the observation made therein. It was submitted that the visit to locus in quo was for the trial Court to have opportunity to view clearly some greys area in the evidence adduced by both parties in the trial Court as against the claim of the respective parties. It was not the duty of the learned trial Judge to pick and choose evidence to evaluate and assess. The visit to locus and the observation made therein was material and the trial judge was duty bound to evaluate and made

finding in that regards. Reliance was placed on Alanamu v Agbo (2012) 30 WRN 117 at 124. The Court was urged to hold that the failure by the learned trial Judge to make any findings on the observations made and the features seen on the land was tantamount to abandoning the duty of evaluation of evidence occasioning a miscarriage of justice to the Appellants.

It was further contended that the evidence of PW2 ought to be discountenanced. His evidence under cross-examination contradicted his deposition on oath. Except in situations permitted by law, a Court cannot pick and choose portions of a piece of evidence. The case of Odi v Iyala (2004) 37 W.R.N 1, (2004) SCNJ 35, (2004) 8 NWLR (PT. 875) 283 was cited and relied on. The Court was urged to hold that the trial Judge was wrong to have held that the evidence of PW2 still stands strong despite the contradiction embedded in it.

In conclusion, the Appellant urged the Court to allow the appeal, set aside the judgment of trial Court and dismiss the claims of the Respondents in its entirety.

For the Respondents, the evidence adduced was relied on to submit that they had established their title to

the land in dispute, citing authorities which included Kaburu Pada v Woya Galadima & 1 Or (2018) 3 NWLR (PT 1607) 436 at 456; Benjamin Nwakuba Iroagbara v David Ufomadu (2009) 11 NWLR (PT 1153) 587 at 600. In addition to tracing their root of title, it was submitted that the Respondents had also proved the identity of the disputed land as provided in Chief Isaac Olokunlade v Chief Peter Adebisi Ademiloyo (2011) 14 NWLR (PT 1269) 72 at 96. On the Appellants’ contention that the Respondents did not prove part payment of money for the purchase of the disputed land by the Appellants, the evidence of PW1, PW3, PW4 and PW5 respectively was relied upon. PW1 and PW5 were eye witnesses to the said transaction. The said pieces of evidence, which were not challenged or discredited by the Appellants during cross examination, established part payment of consideration sum for the disputed land. The Court was urged to hold that the Respondents had proved their root of title to the disputed land against the Appellants at trial and were entitled to judgment.

It was further submitted that the Respondents had established by evidence that the Appellants were their

customary tenants. The Respondents pleaded and led evidence to the effect that the Shinchekpe family, through the 1st Respondent gave portions of the disputed land to the forebears of the Appellants to farm as customary tenants. Upon their demise, the Appellants continued to farm thereon with the permission of the Shinchekpe family without paying any tribute as a result of their close relationship with the Shinchekpe family. The Appellants generally denied these averments. It was argued that a general denial is no denial but amounts to an admission of the facts contained therein. The Court was invited to note the general denial in respect of paragraphs 4 – 26 and paragraphs 27 – 29 of the Respondents’ Joint Statement of Claim.

The Appellants, while challenging the Respondents’ claim, raised issues of title over portions of the disputed land. However, none of the Appellants filed a Counter – Claim and failed to establish their alleged titles to portions of the disputed land respectively claimed by them or the identities of the said portions. The Appellants did not establish how they shared boundaries with each other. It was submitted that with

the unchallenged pleadings and evidence of the Respondents, the Respondents, who proved a better title, successfully proved that the Appellants were their tenants on the disputed land. It was further submitted that a customary tenant holds his grant subject to good behavior. When a tenant denies the allodial right of the overlord and sets up a rival claim to the radical title of the overlord, such a behavior is viewed as serious misconduct and is ground for forfeiture and eviction, relying on Mr. George Ariolu v. Elder John O. Ariolu & 1 Or. (2011) 11 NWLR (Part 1258) 288 at 310.

Counsel for the Appellants had contended that the Respondents’ evidence that the Shinchekpe family gave the Appellants’ forebears the land as customary tenants through the 1st Respondent is contradictory because PW3 and PW4 each stated in their respective written depositions that the Shinchekpe family gave the disputed land to the Appellants’ forebears through them. It was submitted that the Respondents pleaded in their Amended Joint Statement of Claim that the Shinchekpe family gave the said land to the Appellants’ forebears through the 1st Respondent. The depositions in

paragraph 22 of statement on oath of PW3 and paragraph 22 of the statement on oath of PW4 were errors and facts not pleaded. The said errors were corrected by the said witnesses during cross – examination where they respectively testified in line with their pleadings, paragraph 21 of the Amended Joint Statement of Claim. Evidence of parties are not rejected simply on minor contradictions or discrepancies, citing Goyang Kayili v. Esly Yilbuk & 2 Ors. (2015) 7 NWLR (Part 1457) 26 at 77; Mr. Adolfus Amadi v. Mr. Friday Echendu Amadi (2011) 15 NWLR (Part 1271) 437 at 462. Counsel for the Respondents therefore submitted that the contradictions in the evidence of PW3 and PW4 referred to by the Appellants’ Counsel were not material enough to warrant the rejection of the entire evidence of the Respondents as contended by the Appellants. Rather, from the totality of evidence before the trial Court, the Respondents proved a better title than the Appellants and it was further proof that the Appellants were either farming on the land as tenants or trespassers.

It was further submitted that possession, no matter how long, cannot transform into ownership, more

so when the other party has proved a better title than the party in possession. It was submitted, assuming without conceding, that the Appellants were not customary tenants of the Respondents on the disputed land, since the Respondents have proved a better title to the said land, the purported possession of the said land becomes an act of trespass by the Appellants. Reliance was placed on Alhaji Imam Ayinpe Akinyemi & Anor. v. Abiodun O. Ojo & Anor. (2011) 10 NWLR (Part 1254) 188 at 202; Alhaji Saditameen & 2 Ors. v. Amos Amao & 3 Ors. (2013) 9 NWLR (Part 1358) 159 at 178. The Respondents having established a better title, any long possession of the land in dispute by the Appellants cannot metamorphose into ownership of same.

Counsel for the Respondents further submitted that the trial Court properly evaluated the evidence of the parties, including the proceedings at the locus in quo, before arriving at its decision in line with the decision in Joseph Oyewole v. Karimu Akande & 1 Or (2009) 15 NWLR (Part 1163) 119 & 147. The visit to the locus in quo assisted the Court to confirm the evidence of the parties in Court which tallied

with what it saw during the said visit. The judgment on appeal would reveal that the trial Court made pronouncements on the features it found on the disputed land.

The Court was finally urged to dismiss the instant appeal for lacking in merit as the Respondents established their title to the disputed land at trial.

Resolution
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653.

documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie

(supra), (2000) 6 S.C. (PT 1) 214; Ikpamaku v Makolomi (supra). The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233 (SC). The party that is able to prove title to land in issue is deserving of judgment.

The Appellants herein who were plaintiffs in the trial Court had relied on traditional history in proof of their title to the disputed land. The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke

(2002) 5 S.C. (PT 1) 44.

Once a party pleads and traces his root of title to a particular person, he must establish how that person came to have title invested on him. Thus, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged; Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC); Osafile v Odi (1994) LPELR-2784(SC); Ngene v Igbo (supra). The Respondents therefore had the burden to prove their case.

The Respondents filed an Amended Joint Statement of Claim, pages 193 – 200 of the Record of Appeal. The Respondents are members of one family, the Shinchekpe family of Zokonu in Kurape District, Karu Local Government Area. They pleaded that they inherited the land in dispute from their forebears, named: Shinchekpe Kuyambana, Gora Kuyambana, and, Benanya Bahago who jointly deforested the said land and farmed thereon, cultivating crops such as yam, guinea corn, maize, beans, ground nut and okra. They pleaded the names of persons that descended from their original forebears to the present generation, who were

the Respondents. Upon inheriting the land in dispute, they continued to farm thereon, cultivating similar crops. They averred that after a period of time, the land lost its fertility and was left to lie fallow for a while. The land later regained its fertility and the Shinchekpe family through the 1st Respondent gave several portions of the said land on request to customary tenants, named: Vyabo lya, Gyimama Bawa, Gurku and Sarkin Baka, who farmed thereon and were later succeeded by their respective children, who are the Appellants herein. The Respondents averred that they also had economic trees of locust bean and mango trees on the land, which they exclusively harvested without any challenge. Features in the boundaries of the disputed land were pleaded to be: marshy land (fadama) to the East; a stream (Shaknuwunkpma Stream) to the West; Ado River to the North; and, a foot path to Shaknuwunkpma Stream to the South. The Respondents also averred that the Shinchekpe family collected no tribute from their customary tenants as a result of their close relationship, which same Courtesy was extended to the children of the customary tenants. The Respondents further

averred that sometime in 2009, people of Ebbah village had demanded customary tribute from the Appellants, upon which they reported the matter to the Shinchekpe family. The matter went before Elders of Kurape, Ebbah and Zokonu, where the title of the Shinchekpe family over the disputed land was affirmed. The Respondents had pleaded that some of the persons present at meeting to resolve the issue of their title over the disputed land were Gabriel Bawu, who was Sarkin Noman Kurape and Habila Joshua, who was Sarkin Zokonu (PW3). After the resolution in their favour, the Appellants continued to farm on the land in dispute with the permission of the Respondents and without payment of tribute to them.

The Respondents further pleaded that sometime in January, 2010, the Appellants approached their family with a view to purchasing the disputed land from them. The agreed sum was N10 million. The Respondents were averred to have paid a deposit of N1, 200,000.00 leaving a balance of N8, 800,000.00 which was to be paid on or before the end of March, 2010, failing which the Shinchekpe family could resell the said land and refund the sum deposited. But rather than pay

the balance of the agreed purchase price, the Appellants turned around to challenge the title of the Respondents over the said land, hence the action of the Respondents seeking, inter alia, a declaration of title over the disputed land.

The Appellants, who are from different families, filed a Joint Statement of Defence, pages 148 – 153 of the Record of Appeal. They generally denied the specific claims of the Respondents but did not counter claim. They pleaded that they inherited their portions of the disputed land from their fathers who in turn inherited from their own forebears that had deforested the disputed land. They averred that they farmed on the land in issue, as their forebears had done.

Although it is common practice to add a general denial at the end of a statement of defence to ensure that nothing is accidentally admitted, whether a general denial by a defendant of a specific averment made by the plaintiff can suffice as denial of the said specific averment has been subject of some debate. It has been argued, as was canvassed for the Respondents herein, that a general denial is no denial at all but rather that it amounts to an

admission of the facts contained therein. This argument stands in line with judicial pronouncements such as was made in: Akintola & Anor v. Solano (1986) LPELR-360(SC); Auto Import Export v. Adebayo & Ors (2005) LPELR-642(SC); Bamgbegbin & Ors v. Oriare & Ors (2009) LPELR-733(SC); Dorkubo & Ors v. Udoh & Anor (2016) LPELR-41167(CA), to mention but a few. On the other hand, there are other pronouncements which state that a general denial in pleadings have the unswerving effect of casting on the plaintiff the burden of proving the allegation denied. See: Ace Jimona Limited v. Nigerian Electrical Contracting Company Limited (1966) LPELR-25277(SC); Umesie & Ors v. Onuaguluchi & Ors (1995) LPELR-3368(SC); Arisons Trading & Engineering Company Limited v The Military Governor of Ogun State & Ors (2009) LPELR-554(SC). This seeming conflict or muddle was, however, eloquently clarified by Nweze, JSC in Dairo & Ors v. Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR-42573(SC) and the current settled position of the law expounded in this manner, pages 13 – 14 of the E-Report:

“It is acknowledged that the implication of a general traverse had generated so much confusion in juristic thought due to the conflicting pronouncements of our Courts. However, it is now, tolerably, clear that the denial of a particular paragraph in a Statement of Defence, by means of the general traverse, had the same effect as a specific denial of it. Its effect, solely, is to put the plaintiff to strict proof of the allegation in that Paragraph, ACE Jimona Ltd v. NECC Ltd (1966) 1 All NLR 122, 124; Attah and Anor v. Nnacho and Ors (1965) NMLR 28. It has indeed been recognized as convenient and permissible. Its effect is that it casts on the plaintiff the burden of proving the obligation denied. Umesie v. Onuaguluchi (1995) 12 SCNJ 120.
As shown above, in the opening paragraph of the Statement of Defence, the first defendant employed the mode of pleading known as general traverse. In the words of Mohammed JSC in Ugochukwu v. Unipetrol (Nig) Plc (2002) LPELR-3321 (SC) 7, a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied. According to the eminent jurist, it is not correct that, in

Lewis and Peat (NRL) Ltd v. Akhimien (1976) 6 SC 159, the Apex Court held that a mere traverse of material facts is not enough to deny such facts.” (Emphasis mine)
In this light therefore, notwithstanding the general traverse of the Appellants, the Respondents retained the burden of proving the claims generally or specifically denied by the Appellants.

In proof of their claim, the Respondents had called 5 witnesses. PW1, PW3 and PW4, who was the 2nd Respondent. They all largely testified in line with the Respondents’ pleadings. Under cross examination, they admitted that the Appellants had been farming on the land in dispute since the 1st Respondent gave the land to the fathers of the Appellants. None of them had never farmed on the land in dispute. None of them knew precisely when the land was given to the Appellants’ fathers for farming purposes though PW3 said this was more than 20 years ago. They all said that no tribute was paid to the Respondents by either the fathers of Appellants or the Appellants themselves. The grant of the land for farming purposes to the Appellants’ fathers was not in writing but was based on mutual

understanding. PW1, PW3 and PW4 under cross examination reiterated that there were economic trees on the land, specifically locust beans, which the Respondents had been harvesting on the disputed land.

Now, PW3 and PW4 had in their written depositions, each stated that he personally gave the land in dispute to the Appellants, though under cross examination they stated that the land in issue was given to the Appellants through the 1st Respondent. The Appellants have described this contradiction as material. However, I do not share the same view.

What was pleaded by the Respondents was that the land in issue was given to the Appellants’ fathers by the Shinchekpe family through the 1st Respondent, paragraph 21 of the Amended Joint Statement of Claim, page 196 of the Record of Appeal. The evidence in the written deposition was thus at variance with the pleadings. Nonetheless, under cross examination, the evidence given was in line with the Respondents’ pleadings.

It is trite law that evidence of facts not pleaded go to no issue; Ohiaeri & Anor v. Akabeze & Ors (1992) LPELR-2360(SC);

Petrojessica Enterprises Ltd & Anor v. Leventis Technical Co. Ltd (1992) LPELR-2915(SC); Amodu v. Commandant, Police College Maiduguri & Anor (2009) LPELR-467(SC); Anyafulu & Ors v. Meka & Ors (2014) LPELR-22336(SC); Aminu & Ors v. Hassan & Ors (2014) LPELR-22008(SC); Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463 (SC). Indeed, the Court must discountenance such evidence. Therefore, evidence that the Court may take cognizance of must be first of all pleaded. The evidence of PW3 and PW4 elicited under cross examination was in line with their pleadings as to who gave the land in issue to the Respondents’ fathers. The Respondents had argued in this line and I agree, that the statements in their respective depositions to the effect that they personally gave the said land to the Appellants’ fathers, was not pleaded and therefore must be discountenanced.

It must be noted that the evidence of PW1, PW3 and PW4 on the deforestation of the land in dispute by named forbears of the Respondents was not either discredited or even challenged under cross examination. Their evidence that the 1st Respondent gave the land in dispute to the fathers of the Appellants

was also not discredited under cross examination. The features of the boundaries of land in dispute as stated by PW1, PW3 and PW4 was not discredited under cross examination. At the locus in quo, the 2nd Respondent identified the land in dispute by its boundary features. The 1st Appellant therein said, page 353 of the Record of Appeal:
“The land shown by the 2nd plaintiff is the land in issue. My own portion of land is from the marshi (sic) land towards the North by River Ado.”

The other Appellants also identified their own respective portions of the land in issue. In other words, the entire disputed land was correctly identified by the 2nd Respondent. The trial Court made findings premised on the visit to the locus in quo, which include:
“3. The plaintiffs showed that they have economic trees on the land e.g. locust bean trees and mango trees which they showed the Court at the locus -in-quo already bull dozed. PW 3 confirmed that he reaps (sic) it for the plaintiffs’ family for over 20 years but stopped due to poor yield 5 years ago.
1. That the plaintiffs were able to describe vividly the identity of the land in

dispute.”
These findings have not been impugned.

Now this is important because a plaintiff who claims title to land must prove that the identity or boundaries of the disputed land is definite, discernable and well known to him;Offodile v. Offodile & Ors (2019) LPELR-47851(SC) Gbadamosi v. Dairo (2007) LPELR-1315(SC); Otanma v. Youdubagha (2006) LPELR-2821(SC). There can be no declaration of title to or over a disputed piece of land that is not properly ascertained: Dada v. Dosunmu (2006) LPELR-909(SC); Addah & Ors v. Ubandawaki (2015) LPELR-24266(SC). The Appellants had argued that the Respondents did not prove which portion or area or the boundaries of land given to each of them by their forebears. I do not consider this to be fundamental in this case. The Respondents were not claiming portions or particular portion of the land in dispute but the entire land in dispute, which they correctly identified through the 2nd Respondent. Their description of the boundaries of the entire land in dispute was not discredited.

Thus, from the uncontroverted evidence of the Respondents, it can be garnered that the land in dispute was jointly

founded by forebears of the Respondents’ family known as Shinchekpe Kuyambana, Gora Kuyambana and Bananya Bahago. These persons jointly deforested the said land and farmed on it. Upon the demise of their aforementioned forebears and other ancestors, the Respondents jointly inherited the disputed land and adopted the name of Shinchekpe as their family name, since he was the eldest among their forebears. Upon inheriting the said land, the Respondents continued to farm on different portions of said land. The Respondents identified the descendants of their forebears to the present members of the Shinchekpe family, led by the 1st Respondent as Family Head.

On their own part, the Appellants testified in line with their pleadings. All the Appellants were from different and unrelated families. DW1, who stated that he was resident in Ado in Karu Local Government Area, deposed that his own portion was inherited through his father, Iya, who inherited same from his own father, Kura, that deforested the land. DW2, who stated that he was resident in Ado in Karu Local Government Area, said his father, Gurku, inherited from his father, Shegna, who deforested his

own portion. DW3, who stated that he was resident in Gidan Mudu, in Karu Local Government Area, deposed that he inherited his portion from his father, Bawa, who inherited from one Shagna, who deforested the portion. Shagna’s relationship with Bawa was not explained. DW4, who stated that he was resident in Ado in Karu Local Government Area, deposed that he inherited his own portion from his father, who inherited his own portion from his own father. Neither his father nor his grandfather was named in his depositions.

Now, the land in issue is situate in Agnuzhagbabwi, Bakin Ado near Karshi in Kurape District Karsahi Development Area. Surprisingly, DW1 under cross examination admitted the land in issue was within Kurape District Karsahi Development Area, denied that he had heard of or knew Gabriel Bawu, the Sarkin Noma Kurape, who testified as PW2. I agree with the learned trial Judge that this does not seem to have the ring of truth.
In paragraph 11 of his statement on oath, DW1 stated:
“That I know as a fact that my portion and that have(sic) of the defendants are together but with common boundaries known to us.”

DW2, DW3 and DW4 all made similar statements. In other words, the land in issue is a large piece of land with the same boundaries but all the Appellants, made up of four different and unrelated families, farmed on different portions within the same large piece of land, which they all allege was inherited by them from their different and unrelated forbears. No evidence was given to tie the presence of these four different and unrelated families who deforested different portions of land within the same large piece of land.

Further, the evidence for the Appellants on the averment that their different and unrelated ancestors deforested the land in issue did not hold up under cross examination. Under cross examination, DW2 testified that his grandfather was Shegna who also gave birth to the 3rd Appellant, DW3. Interestingly, DW3, disputed this evidence under cross examination and further said, page 349 of the Record of Appeal:
“My father’s name is Bawa not Shegna. I want the Court to take my statement as the truth. The size of the land is about 400 hectares. I am 40 years old. I don’t know when the land was deforested and so I wouldn’t

know who first deforested the land. It is true that I wouldn’t know who gave it to my father even though I met him farming the land. That’s all.”

Thus, under cross examination, DW3 not only discredited the evidence of DW2 on the veracity of his father’s identity, but he went on to say that he did not know who first deforested his portion of the disputed land. He did not know who gave the portion he was farming on to his father, he only met him farming the land.

DW4 under cross examination said, page 351 of the Record of Appeal:
“I was not born when my father started farming the land in dispute as I grew up to see him farm the land. It was my grand father who gave it to my father to farm…I would not know how his grand father got the land in dispute which he gave my father to farm. That’s all.”

DW4 thus admitted that he did not even know how his grandfather got the land in dispute.

Although the Appellants did not counter claim for the land in dispute, their discordant and insufficient evidence do not answer for each portion farmed on by the respective Appellants to the following

questions: who founded the land; how he founded the land; and the particulars of the intervening owners through whom he claims. Placed on an imaginary scale, as is advocated in weighing evidence adduced by each side in civil cases, the evidence adduced in proof of the case for the Respondents is weightier than the evidence adduced by the Appellants in their defence. On this approach to evaluating evidence called by both sides in a civil case, the Apex Court, per the learned Jurist, Nnaemeka-Agu, JSC in Owoade & Anor v. Omitola & Ors (1988) LPELR-2850(SC) at pages 14 and 15, opined:
“Unlike in criminal cases where the question is whether or not there is evidence in support of a finding, in civil cases, the question is on which side does the weight of evidence lie. This is because proof in civil cases is on a balance of probabilities. The corollary of the principle that proof in civil cases is on a balance of probabilities is that in the assessment of evidence on any particular issue, evidence called by either side on the issue ought to be put on either side of an imaginary balance and weighed together. Whichever outweighs the other in terms

of probative value should be accepted. Dealing with this point in A.R. Mogaji & Ors. v. Madam Rabiatu Odofin & Ors. (1978) 4 S.C. 91. at P.93. Fatayi Williams, J.S.C. (as he then was) said: “In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if the law supports it; bearing in mind the cause of action, he will then find for the Plaintiff. If not, the Plaintiffs case will be dismissed.”
Restating this legal position, the Supreme Court, per Ngwuta, JSC in Husseni & Anor v. Mohammed & Ors (2014) LPELR-24216(SC) at pages 29-31, said:

“My Lords, civil cases are determined on the balance of probabilities which in itself means preponderance of evidence. The trial Court places the evidence adduced before it by the parties in the imaginary scale to see which side of the scale is heavier, not by the number of witness called by each party but by the quality or probative value of the testimony of the witnesses. This is the import of deciding a case on balance of probabilities. See Mogaji v. Odofin (1978) 4 SC 91, Adekunle v. Aremu (1998) 1 NWLR (Pt.533) 208 -210.”
See also: Sha & Anor v. Kwan & Ors (2000) LPELR-3031(SC); Kwajaffa & Ors v. B.O.N. Ltd (2004) LPELR-1727(SC); Anekwe & Anor v. Nweke (2014) LPELR-22697(SC). I shall return to this point anon.

In further proof of their title to the disputed land, the Respondents pleaded and testified concerning a dispute between the Appellants and the people of Ebbah village who had demanded customary tribute from the Appellants sometime in 2009. The dispute was resolved in favour of Respondents in the presence of named persons that included Gabriel Bawu, Sarkin Noma of Kurape, who testified as PW2 and PW3.

In his written deposition, PW2 had stated that in his capacity as Sarkin Noma of Kurape he adjudicated over the said dispute between the Respondents and the people of Ebbah village. On the contrary, under cross examination, PW2 admitted that the matter in dispute was not settled in his palace but in the house of the 1st Respondent and that he was invited by the 1st Respondent to serve as a witness to the resolution.

The Appellants made heavy weather of the seeming contradiction in the evidence of PW2 in his written deposition and under cross examination and have urged the Court to discountenance both the evidence of PW2 and of the Respondents on this account. Let me straightaway say that I do not share this same view. The given position of the law, as afore stated, is that evidence of facts not pleaded go to no issue; Ohiaeri & Anor v. Akabeze & Ors (supra); Petrojessica Enterprises Ltd & Anor v. Leventis Technical Co. Ltd (supra); Amodu v. Commandant, Police College Maiduguri & Anor (supra); Anyafulu & Ors v. Meka & Ors (supra); Aminu & Ors v. Hassan & Ors (supra); Akinbade & Anor v. Babatunde & Ors (supra). Such evidence on facts not

pleaded must be discountenanced by the Court. The evidence as deposed in his written statement wherein PW2 stated that in his capacity as Sarkin Noma of Kurape he adjudicated over the dispute between the Appellants and the people of Ebbah village was not pleaded. This piece of evidence can only be ignored by the Court. It was not pleaded and goes to no issue. The learned trial Judge rightly disregarded it. Rather, the pleaded fact was in line with the evidence of PW2 given under cross examination.

PW3, the Sarkin Zokonu, had testified that he was also present at the meeting to resolve the dispute with the people of Ebbah village and the Appellants. He was not cross examined on this piece of evidence at all. The trial Court was right to accept his evidence as true. I also find it noteworthy that PW1 and PW4 were not cross examined on their evidence on the resolution of the said dispute between the Respondents and the people of Ebbah that was resolved with the confirmation of the Respondents’ title over the disputed land. I shall further refer to this point.
PW5 deposed that he collected the said N1, 200,000.00 from the Appellants on behalf

of the Respondents. The Appellants were to pay the balance of the agreed amount before the end of March 2010. Under cross examination, he admitted there was no evidence of the payment but said that this was because the Appellants did not complete payment of the agreed sum to the Shinchekpe family. Although he was not a member of the Shinchekpe family, he got to know through history given by his forefathers that the disputed land belonged to the Respondents. The Appellants have argued that PW5 did not state which of the Respondents he had collected the money from and other details. Now, to my mind, these are details PW5 ought to have been cross examined on. Having asserted, even under cross examination that he collected that sum of money from the Respondents as part payment on the agreed purchase price for the disputed land, he ought to have been questioned on details. He was specifically asked why there was no evidence in writing and he provided an answer, that this was because the purchase sum had not yet been completed. He ought to have been questioned on any other details to cast doubt on the veracity of his evidence. Having failed to cross examine him on

these details, his evidence on the payment cannot be said to have been discredited. I also find it noteworthy that PW1, PW3 and PW4 were not cross examined at all on their evidence on the payment of a deposit of N1, 200,000.00 for the land in dispute by the Appellants to the Respondents. A party who disputes the testimony of adverse party on a material issue ought to cross examine him on that point. The proper course is to challenge the witness while he is in the witness-box or, at any rate, to make it plain to him at that stage that his evidence is not accepted; Oforlete v. State (2000) 12 NWLR (Pt. 681) 415, (2000) LPELR-2270(SC). In Ali v State (2015) LPELR-24711(SC), Ogunbiyi, JSC said, page 30 of the E-Report:
“I wish to state at this point that for cross examination to stand its worth, it needed not be extensive before it could be relevant and sufficient provided the crucial facts raised in the evidence in chief are examined and addressed thereon. (Emphasis mine).
The evidence of PW1, PW3, PW4 and PW5 on the agreement between the parties for the Appellants to purchase the disputed land from the Respondents for the sum of N10 million

and the part payment of the sum of N1, 200,000.00 received by PW5 on behalf of the Respondents was not discredited. The trial Court was therefore right to have accepted the said evidence as true and acted thereon.

The trial Court visited the locus in quo. The Appellants’ Counsel contended that the learned trial Judge did not consider and evaluate what transpired at the locus in quo and by that lapse occasioned a miscarriage of justice to the Appellants. However, I find that the Record of Appeal does not support this contention. The purpose of a visit to the locus in quo has long been settled to be to resolve any conflict that occurs on the evidence of both sides as to the existence or non-existence of a state of fact relating to a physical object, and if such a conflict can be resolved by visualizing the object, material thing, scene of the incident or property in litigation, then it is desirable for the Court to apply its visual senses in aid of its sense of hearing; Briggs v. Briggs (1992) LPELR-804(SC); Atanda v. Iliasu (2012) LPELR-19662(SC); Obi v Mbionwu (2002) LPELR-2164(SC); Ukaegbu & Ors v. Nwololo (2009) LPELR-3337(SC); Orugbo v Una (2002)

LPELR-2778(SC); Gwamile v. Idih & Anor (2018) LPELR-44139(CA). Thus, the purpose of a visit to the locus in quo is to resolve any conflict in the evidence as to physical facts.
On a visit to a locus in quo, it is necessary for the trial judge to make a record, in the course of the proceedings, of what transpires at the scene. However, if the trial judge failed to make the record but makes a statement in his judgment about the visit, such statement would be taken as an accurate account of what happened and therefore final, unless of course the contrary can be established by the party that impugns the record; Enigwe & Ors v. Akaigwe & Ors (1992) LPELR-1145(SC); Shekse v. Plankshak & Ors (2008) LPELR-3042(SC).
In the instant case, as Counsel for the Respondents rightly invited the Court to note, the trial Court took evidence and made observations of features on the land, as was shown by both parties. Indeed, at the locus in quo, the 1st Respondent identified the land in dispute, as well as their locust bean trees thereon, which had been bull dozed and the trial Court noted the marks of the bull dozed trees. The Appellants all identified

their respective portions of the land in dispute as well as their crops planted thereon. The trial Court considered these pieces of evidence as seen at the locus in quo and evaluated same in its judgment; see pages 366 – 370, 383 and 386 of the Record of Appeal. I agree with the submission for the Respondents that the visit to the locus in quo assisted the trial Court to visually grasp the evidence of the parties as adduced in Court, and properly evaluate same. No miscarriage of justice was therefore occasioned to the Appellants.

My Lords, I have drawn attention to the fact that the evidence of PW1, PW3 and PW4 on the deforestation of the land in dispute by named forbears of the Respondents was not discredited or challenged under cross examination. Counsel for the Respondents had argued that the 1st Respondent who was said to have given the land in dispute to the fathers of the Respondents did not testify to confirm this fact. However, one must not lose sight of the fact that the number of witnesses called by a party does not guarantee the success of his case. Rather, it is the quality of the evidence given by the witness or witnesses that is crucial;

Odutola & Ors v. Mabogunje & Ors (2013) LPELR-19909(SC) Alao v. Akano & Ors (2005) LPELR-409(SC); Iyere v. Bendel Feed and Flour Mill Ltd (2008) LPELR-1578(SC). The weight of evidence adduced by material and credible witnesses cannot be downplayed; Emeka v. Chuba-Ikpeazu & Ors (2017) LPELR-41920(SC).

Therefore, notwithstanding the fact that the 1st Respondent was reported to be sick and failed to testify (page 345 of the Record of Appeal), the evidence of PW1, PW3 and PW4 to the effect that it was the 1st Respondent who gave the land in dispute to the fathers of the Appellants was not discredited. The traditional history of the land in dispute as given by the Respondents answers to the questions of: who founded the land; how he founded the land; and, the particulars of the intervening owners through whom they claim. The Respondents therefore established their title to the disputed land.

The question to now address is whether the Appellants were shown to be customary tenants on the said land. Judicial pronouncements have established that the main feature of a customary tenancy is the payment of tribute to the overlord, which payment

entitles the customary tenant to enjoy his holding in perpetuity, subject to good behaviour; Akinbade v Babatunde (2017) LPELR-43463(SC); Abioye v Yakubu (1991) 5 NWLR (PT 190) 130. Such tribute is paid directly to the overlord, not through a third party; Dashi v Satlong (2009) LPELR-929 (SC), (2009) 1-2 S.C. 5; (2009) 5 NWLR (PT 1134) 281. The law also recognizes that there can be a customary tenancy without the payment of tributes but this must be proved by evidence; Akinbade & Anor v. Babatunde & Ors (supra); Makinde v Akinwale (2000) 1 S.C. 89); Galadima v Kuku (2018) LPELR-43886 (CA); Angough & Ors v. Uga & Anor (2018) LPELR-43889 (CA).

What can be gleaned from the evidence of the Respondents is that the fathers of the Appellants were respectively, given portions of the land in dispute for farming purposes by the 1st Respondent on behalf of the Shinchekpe family. There was no tribute demanded by the Shinchekpe family to be paid by the Appellants’ family for the grant of the land on account of the cordial relationship enjoyed by the Shinchekpe family and the Appellants’ respective families. The Respondents pleaded that the

Appellants planted cashew trees on the land without the consent of the Shinchekpe family. There was no cross examination on this fact. In other words, the permission to farm on the land was not extended to planting economic trees on the said land, without the permission of the Shinchekpe family, the Respondents.

It has been noted that PW1, PW3 and PW4 were not at all cross examined on their evidence on the resolution of the dispute between the Appellants and the people of Ebbah who demanded payment of tribute from the Appellants in respect of the disputed land. They had testified that the dispute was resolved with the confirmation of the title of the Respondents to the land in dispute. The seeming contradiction in the evidence of PW2 on this issue has been addressed above. A material contradiction cannot be said arise from a piece of evidence that was not pleaded. Such evidence on facts not pleaded can only go to no issue and must be ignored by the Court; Ohiaeri & Anor v. Akabeze & Ors (supra); Petrojessica Enterprises Ltd & Anor v. Leventis Technical Co. Ltd (supra); Amodu v. Commandant, Police College Maiduguri & Anor (supra);

Anyafulu & Ors v. Meka & Ors (supra); Aminu & Ors v. Hassan & Ors (supra); Akinbade & Anor v. Babatunde & Ors (supra).

Further, as already noted, PW1, PW3 and PW4 were not cross examined at all on their evidence that the parties had agreed on the sale of the land in dispute to the Appellants for N10, 000,000.00 for which there was a part payment of N1, 200,000.00 by the Appellants. The evidence of PW5, who said he collected the money from the Appellants on behalf of the Respondents was not dislodged under cross examination. I will further remark that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness; Gaji v Paye (2003) LPELR-1300(SC); Cameroon Airlines v. Otutuizu (2011) LPELR-827(SC). The evidence of a witness which is not challenged or shaken by cross-examination, which evidence is not inadmissible by law, must be accepted as correct; Yusuf & Anor v. The State (2019) LPELR-46945(SC) Lanre v. State (2018) LPELR-45156(SC). A Court seised of the matter may treat such unchallenged evidence before it which is not inadmissible, as

established. I therefore see no reason to disbelieve the evidence of the Respondents that the Appellants had made a part payment of N1,200,000.00 for the land in dispute to the Respondents through PW5 on an agreed purchase price of N10,000,000.00, which payment they failed to complete.

The title of the Respondents to the land in dispute has been established. The evidence has shown that the Respondents were the overlords of the Appellants on the disputed land. The Appellants were therefore the customary tenants of the Respondents on the land in dispute. The long possession of the Appellants on the disputed land does not grant them the status of ownership over the disputed land. Long possession cannot stand as a defence to the claims of the rightful owner of the land; Mogaji & Ors v. Cadbury (Nig) Ltd; (1985) LPELR-1889(SC)’ Kyari v. Alkali & Ors (2001) LPELR-1728(SC); Yusuf v. Adegoke & Anor (2007) LPELR-3534(SC).

The recognition of the rights of the overlord is paramount in a customary tenancy as non-recognition of the overlord could lead to forfeiture; Akinbade & Anor v. Babatunde & Ors (supra); Salami & Anor v. Lawal

(2008) LPELR-2980(SC). In Archibong & Ors v. Ita & Ors (2004) LPELR-535(SC), the Apex Court, per Uwaifo, JSC said:
“The law clearly is that, once a customary tenant always such a tenant entitled to the occupation and use of land but the tenancy is subject to the landlord’s right of reversion in an appropriate event, such as the denial of the title of the overlord, or the failure to comply with the terms of the tenancy thereby leading to forfeiture: See Dokubo v. Bob-Manuel (1967) 1 All NLR 113 at 121; Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) 528; Salami v. Oke (1987) 4 NWLR (Pt.63) 1 at 14; Ogunleye v. Oni (1990) 4 NWLR (Pt.135) 745 at 783 – 784. It is also recognized that although a customary tenant can hold in perpetuity subject to good behaviour, he is presumed to be a tenant from year to year: See Aghenhen v. Waghoreghor (1974) 1 All NLR 81, (1974) 1 NMLR 270, (1974) 9 NSCC 1 at 24. No matter how long he is on the land, a customary tenant does not and cannot acquire ownership, that is to say, divest the radical owners of their title, merely by virtue of such long tenancy in possession: See Isiba v. Hanson (1967) 1 All NLR 8 at page 10

where this Court observed per Coker, J.S.C.:
“The learned trial Judge did not consider that where land is given to a customary tenant under native law and custom it is of the essence of his tenure that he should be in possession of such land and we are unable to agree with him that the mere fact of possession without any other overt acts unequivocably pointing to the assertion of absolute ownership to the knowledge of the plaintiffs was sufficient to divest the plaintiffs of their radical ownership to this property.” See also Akinloye v. Eyilola (1968) NMLR 92.”
See also Chikere & Ors v. Okegbe & Ors (2000) LPELR-847(SC) at pages 13 -14, per Ayoola, JSC:
“The law is clear that possession is an incident of customary tenancy…in Sagay v. New Independence Rubber Ltd (1977) 5 SC 143, Sowemimo, JSC, said at p. 158:
“It is now settled law that once land is granted to a tenant in accordance with Native Law and Custom, whatever be the consideration, full rights of possession are conveyed to the grantee. The only right remaining in the grantor is that of reversion, should the grantee deny title or abandon or attempt to

alienate.”
Having challenged the radical title of the Respondents, who were their overlords, the impertinent action of the Appellants can only lead to divest the Appellants of their possession of the land in issue.

The issues formulated for determination of this appeal are all resolved against the Appellants. There is therefore no reason to disturb the decision of the learned trial Judge delivered on 24/3/2016 in Suit No NSD/MG94/2011.
I find absolutely no merit in this appeal. It fails and is hereby dismissed. The Respondents are entitled to costs, which I assess at N100, 000.00.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice O.A. Otisi, JCA. I agree with the conclusion that this Appeal lacks merit. For these and the fuller reasons in the Lead Judgment. I also dismiss this appeal. I affirm the judgment of the Court below.
I also abide by the Order(s) as to cost of this Appeal.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein that the appeal has no merit.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The claim of the respondent was essentially declaratory in nature and so the fact that the appellants made a general denial of the specific averments made in the statement of claim did not relieve the respondents of the burden of proving that they were entitled to the reliefs sought by them. This is because declaratory reliefs are not granted on admission but based on satisfactory evidence adduced by the claimant. See Wallersteiner V. Moir (1974) 3 All ER. 217, Bello V Eweka (1981) NSCC 48, Dim V. Enemuo (2009) 171 LRCN 206 and Shasi V. Smith (2009) 18 NWLR (Pt. 1173) 330.

The respondents relied on traditional history to establish their title to the land in dispute. They pleaded and led evidence to satisfy the three requirements of traditional history to wit; (i) who founded the land (ii) how he founded the land and (iii) particulars of intervening owners through whom they claimed, See Dim V. Enemuo supra., Ngene V. lgbo (2000) LPELR – 1987 (SC) and Sogunro V. Yeku (2017) 9 NWLR (Pt. 1570) 290. On the other hand, the appellants pleaded traditional history to resist the claim of the respondents. The traditional history of the 2nd appellant was a non-

starter as there was no averment in the statement of defence as to the name of his grandfather and how he (his grandfather) founded the land. The name of 2nd appellant’s father was also not pleaded. In regard to the traditional history of the 3rd appellant, the person who deforested the land is pleaded to be Shagna but his relationship with the 3rd appellant and his (3rd appellant’s) father is not stated. The same feature bedevils the traditional history of the 4th appellant. What is more, the evidence led by the appellants on their traditional histories was either contradictory, discordant or was discredited in cross – examination. The traditional history of the appellants therefore broke down while that of the respondents stood as a solid rock. The respondents were thus bound to succeed on its merits. See Akanbi V. Salawu (2003) 13 NWLR (Pt. 838) 637.

There was sufficient evidence on record to prove that the appellants were customary tenants of the respondents. Therefore their (appellant’s) long possession of the land could not ripen into their ownership of the same as against the respondents. See Isiba V. Hanson (1967) All NLR 8.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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For the reasons above and the more comprehensive reasons in the lead judgment of my learned brother, I also held that the appeal lacks merit and I accordingly dismiss the same. I abide by the order as to costs made in the lead judgment.

Appearances:

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

M. Hirse, Esq., with him, F.T. Kusugh, Esq. For Respondent(s)

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