JAURO JAKA YANI & ORS v. ALHAJI BAPPA ABBARE
(2013)LCN/6447(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of July, 2013
CA/YL/42/2012
RATIO
WHETHER AN INJUNCTION MAY GRANTED IN RESPECT OF AN UNDEFINED AREA
It is the law that where a plaintiff claims for a declaration and an injunction, the area of land in dispute must be properly identified in view of the order for injunction which cannot be granted in respect of an undefined area. It is therefore trite that a plaintiff who claims a declaration of title to land must prove clearly the area of land to which his claim relates, and the boundaries thereof. The land must be described with certainty so as to entitle him to an order of injunction. This is a basic step in a claim for declaration. If he fails to prove the boundaries of the land he asserts to be in dispute or does not satisfactorily describe its dimensions and locality, or the description contradicts the plan, the proper order to make is one of the dismissal of the claim. A relief of declaration of title, being discretionary, cannot be granted by any court when the identity of the land is not clearly and unambiguously established. Whenever a plaintiff fails to establish the identity of the land to which his claim of ownership or title relates, his evidence at the trial, whether oral or documentary, cannot in law, grant a declaration of title in his favour. The mere mention of the name of the land without stating clearly the area of the land to which the claim relates is not enough description. In other words, where the identity of the land does not arise from the pleadings or the evidence, as in this case where the case was fought before the Upper Area Court, particularly where the defendant by his pleadings and/or evidence admits the description, location, features and dimension of the land, the identity of the land is not a question in issue and does not require proof. See Nwokidu V Okanu (2010) 1 SCNJ 167; Ogba V Wokoma (2005) 14 NWLR (Pt. 944) 118; Okedara V. Adebara (1994) 6 NWLR (Pt. 349) 157; Odichie V Chibogwu (1994) 7 NWLR (Pt. 354) 87; Makanjuola V Balogun (1989) 3 NWLR (Pt. 108) 192; Udeze V Chidebe (1990) 1 NWLR (Pt. 125) 149. Per JUMMAI HANNATU SANKEY, J.C.A.
WHETHER A PLAN OF LAND IN DISPUTE IS A SINE QUO NON IN ASCERTAINING THE SAID LAND
Where a defendant, by his pleadings or evidence, admits the description, location, features and dimension of the land, the identity of the disputed land will not be a question in issue and does not therefore require proof. It is settled law that where a piece of land in dispute is not unascertainable, e.g. where all the parties are agreed as to its area or location or boundaries on the ground, it will not be necessary to also have a plan filed. In other words, a plan of land in dispute is not a sine quo non although some descriptions will be necessary to make the said land ascertainable. See Ekpemulo V Edremoda (2990) 3 SCNJ 77. Per JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. JAURO JAKA YANI
2. JAURO SAMAILU
3. JAURO YOHANNA
4. SONDREX JABTON
5. GODWIN FILIMON
5. EMMANUEL MARBI
7. JOSHUA YERIMA
8. ANDREW KIRBI – Appellant(s)
AND
ALHAJI BAPPA ABBARE – Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The Appellants herein, led by Jauro Jaka Yani, were Defendants in a suit before the Upper Area Court, Jalingo, wherein the Respondent, Alhaji Bappa Abbare, as Plaintiff therein, had sought for the following reliefs:
a. “A declaration of title to a piece of land lying and situate at Walowol Tibaty.
b. An order of perpetual injunction against the Defendants and general damages of N1, 000, 000,00 (One Million Naira).”
To prove this claim, the Respondent adduced evidence through four (4) witnesses and two (2) exhibits, marked A and A1, being a receipt and a Customary Certificate of Occupancy issued by Karim Lamido Local government Council in Taraba State. In their defence, the Appellants adduced evidence through five (5) witnesses, but tendered no exhibit. At the close of evidence, both learned Counsel addressed the trial Court. Thereafter, the learned trial Upper Area Court Judge delivered a well-considered Judgment in favour of the Respondent awarding title to him as claimed in his Writ of Summons. Dissatisfied by this decision, the Appellants herein filed an Appeal against same before the High Court of Taraba State. Sitting in its appellate jurisdiction the Court below, after due consideration, affirmed the decision of the trial Court. Still unhappy with that decision, the Appellants have approached this Court via a Notice and Grounds of Appeal dated 3rd September, 2012, leave to so appeal having been granted by this Court on 12th March, 2012. The Grounds upon which they complain, without their particulars are as follows:
Ground One
1. The lower Court erred in law when it held that exhibit A the Customary Certificate of Occupancy issued him by Karim Lamido Local Government Council in favour of the Respondent and also the evidence of PW1-PW4 sufficiently identified the disputed land satisfactorily beyond any doubt (Page 83 lines 8-22 of the Record of Proceedings).
Ground Two
2. The lower Court erred in law when it held that they were unable to disturb the findings of facts by the learned trial Judge on the evidence of the 4th witness, whose evidence was regarded as tainting, very untruthful, insincere and evidence of an interested witness who has come to court to defend the interest of his community. (Page 80 lines 3-10 and Page 88 lines 1-27.
Ground Three
3. The lower court erred in law when it affirmed the decision of the trial Court in declaring all that parcel of land that situates and lies at Bujum measuring 350 hecters (sic) in favour of the Respondent and dismissing the Appeal of the Applicants. Page 88-89 lines 26-29.
The parties before this Court filed and exchanged their Briefs of argument in line with the Rules guiding procedure in this Court. On the 30th May, 2013, when this Appeal was called up for hearing, both the Appellants and their Counsel were not in Court, despite the fact that a hearing notice had been duly served on Counsel. Thus, pursuant to the Rules of this Court, the un-dated Appellants’ Brief of argument filed on 30-10-12 was deemed argued. Learned Counsel for the Respondent, Mr. H.M. Rabiu, on his own part, adopted and relied on the Respondent’s Brief of argument, dated 26-11-12 and filed on 07-12-12, as the Respondent’s arguments in this Appeal. He urged the Court to dismiss the Appeal in its entirety.
The Appellants, in their Brief of argument distilled one issue from their three (3) Grounds of Appeal, and the Respondent adopted the said issue so formulated as the issue by which this Appeal should be determined. The issue is also adopted by this Court for the resolution of this Appeal, and so, is set out hereunder:
Whether, their lordships of the High Court, Jalingo, were right in affirming the decision of the trial Upper Area Court in dismissing the Appeal on the ground that it lacked merit.
In arguing this issue, learned Counsel for the Appellants, Chief J.R. Ndawalam, submits that the Appeal before the High Court questioned chiefly the following issues which, it contended, were not properly dealt with by the Court:
1) The identity of the land; and
2) Whether Exhibit A1, i.e. the Customary Certificate of Occupancy, granted to the Respondent was rightly admitted and the High Court was right to have held that it was properly admitted.
Counsel submits that the finding of the lower Court that the fact that name of the land in dispute as stated in the Plaintiff/Respondent’s claim and as referred to in the evidence of both parties differed, did not raise any issue as to identity, was made in error. He argues that the evidence before the trial Court brings out the uncertainty of the identity of the land in question. He thus submits that there was a dispute as to the identity of the land, and failure of the lower Court to so hold, occasioned a miscarriage of justice. He relies on Aigbobahi V Aifuwa (2006) ALL FWLR (Pt. 303) 202.
In respect of the Exhibit A1, Counsel submits that the fact that it was admitted without objection from Counsel for the Defendants does not preclude the Court from considering the document on appeal and expunging it from evidence. He contends that the Appellants are “discomforted” by the admission of Exhibit A1 as the production of a certificate of occupancy is not conclusive evidence of title. Relying on Gwar V Adole (2003) FWLR (Pt. 176) 747 @ 773, he urged the Court to expunge the certificate and hold that the Respondent’s title to the land does not hold. Counsel therefore urged the Court to resolve this issue in favour of the Appellants and to allow the Appeal.
In his response, learned Counsel for the Respondent, Mr. H.M. Rabiu, relies on Ogun V Akinyelu (2005) 123 LRCN 96 @ 100 to submit that the identity of the land in dispute will only arise only if the Defendants in their defence made it an issue. He contends that, rather, the parties are ad idem on the same area of the land in dispute and its location. Counsel submits that the parties were well familiar with the land in dispute to the extent that the Appellants were the very people who used to work for the Respondent on the land, and he refers to the evidence of PW4 at page 12 of the Record.
Relying on Gbadamosi V Dairo (2007) 145 LRCN 508 and many other decided cases, Counsel submits that, for the identity of the land to be an issue for consideration, the Appellants ought to have specifically disputed the area of the land or its location or the features on the land, but they didn’t. Counsel submits that from the evidence on both sides, the land is situated between Bujum and Abbare. So the fact that the Respondent gave the name of the land in dispute as “Walowal Tebarti” does not raise any issue of identity. He relies on the decision in Nwokorobia V Nwogu (2009) 172 LRCN 41 @ 48 and a host of others. Counsel therefore submits that the holding of the High Court that, the identity of the land in dispute was not made an issue, was properly arrived at by the High Court and thus no miscarriage of justice was occasioned in the circumstances.
Learned Counsel further relying on Dakolo V Dakolo (2011) CRCN 1 @ 15, submits that the Upper Area Court, having accomplished its primary function of evaluating pieces of evidence of the witnesses and accordingly ascribed probative value thereto, an appellate court, without compelling reason, would not interfere.
On the admissibility of Exhibit A1, learned Counsel submits that, going by Section 6 of the Evidence Act, the cardinal consideration in the admissibility of a document is relevance. Thus, on the strength of the relevance of the Exhibit A1 to the issue of the Respondent’s title to the land in dispute, the trial Court admitted the document in evidence, and this was upheld by the lower Court, following also the rebuttable presumption of law in Sections 114 (1), 116, 149 (c) & 150 (1) of the Evidence Act that such documents are correct and authentic.
Counsel further submits, on the authority of Abubakar V Chuks (2008) 2 MJSC 190 @ 193, that assuming Exhibit A1 was wrongly admitted, that in itself cannot be a ground for the reversal of the decision if the admission would not have the effect of changing the decision. He contends that the law is that a certificate of occupancy granted by a competent authority raises the presumption that the holder is the owner in the absence of another person who bears a better title before it was so issued to the said holder. Ezeana V Atta (2004) 4 MJSC 1 @ 8 is relied on. Counsel submits that the Appellants failed to establish their root of title via inheritance as asserted by them and this was the finding of the lower Court at page 84 of the Records. Counsel submits that the unchallenged evidence of the Respondent to the effect that, when the land was allotted to him, it was no man’s land, substantially supports the position of the law as stated in Ezeana V Atta @ 816 (supra), that when a person is allotted a piece of land, there shouldn’t be in existence another person whose title was then not revoked, justifies the affirmation by the Court below of the decision of the trial Upper Area Court which admitted Exhibit A1. Counsel therefore urged the Court not to interfere with the findings of the lower Courts as same are devoid of miscarriage of justice to the Appellants, and to consequently dismiss the Appeal in its entirety.
In deciding this case, the trial Court did a good job in bringing to the fore the five (5) ways by which ownership of land could be proved. For the sake of emphasis, I will re-state the principles as stated by the Supreme Court in the locus classicus, Idundun V. Okumagba (1975) 9-10 SC 227. They are:
1. By traditional evidence;
2. By production of documents of title;
3. By acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner;
4. By acts of long possession and enjoyment of the land;
5. By proof of possession of adjacent or connected land in circumstances rendering it probable that the owner of such adjacent or connected land would, in addition, be the owner of the land in dispute.
See also Nwokido V Okano (2010) 1 SCNJ 167; Orlu V Agogo-Abite (2010) 1 SCNJ 322.
The Respondent, as Plaintiff, from the on-set relied on allocation or grant. He adduced evidence through four (4) witnesses inclusive of himself, to establish this. While the reaction of the Appellants to the claim of the Respondent is a denial and a claim to the land through inheritance, there is no dispute as to the fact that the Appellants know the identity of the land in dispute and its extent as can be gleaned from the evidence of their five (5) witnesses. What they dispute is not identity but the ownership of the land. Instead, there is ample evidence to show that the parties know and are totally ad idem in respect of the land in dispute. For instance, the Respondent/Plaintiff, as PW4, testified at pages 10 & 14 of the Record thus:
“… the land is situate between Abbare and Bujum… I know Bujum Fulani, Bujum Waya, they are all the same village as such.”
PWs 1, 2 and 3 also state that the land is situate between Bujum and Abbare. Whilst two of the Appellants/Respondents who testified as DW1 & DW5 testified separately at pages 16 and 26 of the Record as follows:
DW1: “This land lam referring to is situate at Bujum Kasuwa.”
DW5: “The land is situate at Bujum… The land is located between Bujum-Kasuwa Bujum Way Yeti, Yugwatabe and Tana villages.”
All the other witnesses, both for the Plaintiff and for the Defendants variously referred to the land in dispute as Bujum Kasuwa, Bujum Fulani, Bujum or between Bujum and Abbare; whilst in the claim before the Court, the Plaintiff referred to it as Walowal Tebarti.
From the above pieces of evidence, it is quite apparent that the parties know and were familiar with the land in dispute, even though it was given a different name in the initial statement of claim at the trial Court. What is of paramount importance is that both parties lay claim to the same piece of land. The different name of ‘Walowal Tiberti’ given to the land in dispute upon the initiation of the case at the trial Court, does not raise any issue of identity, the Appellants were in no way misled thereby and they fought the case before that Court on the understanding and belief that it is the same land which, they claim, belongs to them by virtue of inheritance. Apart from the above facts, the Respondent also tendered Exhibit A1, a Customary right of Occupancy which contained a concise but detailed description of the land in dispute.
It is well to mention at this stage that the Writ of Summons in respect of the Claim has not been made a part of the Record of Appeal. However, I have seen the Registrar’s Statement at page 1 of the Record where he states that the claim of the Respondent before the trial Upper Area Court, Jalingo was for a declaration of title to farmland at Walowol Tibati at Abbare. I however note that in the Judgment of the Upper Area Court, the learned trial Judge states as follows:
“By a writ of summons taken out on the 5th day of April, 2005, the plaintiff brought the defendants to court seeking for a declaration of title to a parcel of land situate, being and lying at Bujum of Abbare District in Lau Local Government Council Area of Taraba State, an order of perpetual injunction against the defendants and the sum of One Million Naira damages for trespass.”
Since in settling the records of the lower Courts, the said Writ of summons was not included as part of the Record of proceedings sent to this Court, the record of the trial Court is preferred to the Registrar’s statement. Be that as it may, since evidently, the matter of the identity of the land was made an issue in the Courts below, I shall also address it here.
I have thoroughly considered the submissions of both counsel on the sole issue for determination in this Appeal. The evidence on oath and documentary evidence disclosed, as observed by the lower Courts, that the title to the said land was claimed through allocation by the Respondent and through inheritance by the Appellants. It is the law that where a plaintiff claims for a declaration and an injunction, the area of land in dispute must be properly identified in view of the order for injunction which cannot be granted in respect of an undefined area. It is therefore trite that a plaintiff who claims a declaration of title to land must prove clearly the area of land to which his claim relates, and the boundaries thereof. The land must be described with certainty so as to entitle him to an order of injunction. This is a basic step in a claim for declaration. If he fails to prove the boundaries of the land he asserts to be in dispute or does not satisfactorily describe its dimensions and locality, or the description contradicts the plan, the proper order to make is one of the dismissal of the claim. A relief of declaration of title, being discretionary, cannot be granted by any court when the identity of the land is not clearly and unambiguously established. Whenever a plaintiff fails to establish the identity of the land to which his claim of ownership or title relates, his evidence at the trial, whether oral or documentary, cannot in law, grant a declaration of title in his favour. The mere mention of the name of the land without stating clearly the area of the land to which the claim relates is not enough description. In other words, where the identity of the land does not arise from the pleadings or the evidence, as in this case where the case was fought before the Upper Area Court, particularly where the defendant by his pleadings and/or evidence admits the description, location, features and dimension of the land, the identity of the land is not a question in issue and does not require proof. See Nwokidu V Okanu (2010) 1 SCNJ 167; Ogba V Wokoma (2005) 14 NWLR (Pt. 944) 118; Okedara V. Adebara (1994) 6 NWLR (Pt. 349) 157; Odichie V Chibogwu (1994) 7 NWLR (Pt. 354) 87; Makanjuola V Balogun (1989) 3 NWLR (Pt. 108) 192; Udeze V Chidebe (1990) 1 NWLR (Pt. 125) 149.
Contrary to the opinion of the Appellants, the trial Court adequately considered the issue of the identity of the land in dispute. At pages 41-42 of the Record of Appeal, the learned trial Judge made the following findings of fact:
“In the case of Ajadi Budo Awere V Suleiman Lasoju (1975) NNLR 79 it was held:
1. In a claim for declaration for title to land it is necessary to have the disputed land properly identified.
2. The most effective way to identify disputed land with certainty is to have it surveyed. But if the expenses is not justified the judgment must contain a description of the land sufficient to identify for example by measurement, by describing boundaries such as rocks, streams, buildings, etc…
In the light of the foregoing authority, I am bound to accept and hold that ‘Exhibit A1′ has sufficiently identified the disputed land by way of measurement, boundaries, while the combined testimony of PW1, PW2, PW3 and as PW4 on the boundaries and features located on the land in dispute respectively and respectfully identified the piece of land in dispute satisfactorily beyond any doubt.”
The Court below, at page 83 of the Record, also pronounced as follows on this issue:
“We have peruse (sic) all the records of proceedings in this case, we are unable to find where the Appellants express any doubt regarding the identity of the disputed land rather they described the land individually with less ease.
The foregoing separate and apart it is of no moment where witnesses gave different names of pieces of surrounding lands as in this case unless it is shown that the witnesses are not referring to the land. So the fact that the claim of the Respondent gave the name of the land in dispute as Walowol Tibaty and the evidence of both parties shows that the land is situate between Bujum and Abbare does not raise any issue of identity.”
I completely agree with the two Courts below. Where a defendant, by his pleadings or evidence, admits the description, location, features and dimension of the land, the identity of the disputed land will not be a question in issue and does not therefore require proof. It is settled law that where a piece of land in dispute is not unascertainable, e.g. where all the parties are agreed as to its area or location or boundaries on the ground, it will not be necessary to also have a plan filed. In other words, a plan of land in dispute is not a sine quo non although some descriptions will be necessary to make the said land ascertainable. See Ekpemulo V Edremoda (2990) 3 SCNJ 77.
In Nwobodo Ezeudu & Others V Isaac Obiagwu (1986) 2 NWLR (Pt. 21) 208 @ 220, the Supreme Court per Oputa, JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said:
“The identity of land will be in issue, if, and only if, the defendants in their defence made it one, that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiff’s plan. When such is the case then the identity of the land becomes an issue. We have in our courts almost tacitly accepted that it is a ritual in land cases for a plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue there, I will make bold to say that the mere production of the Plaintiff’s plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”
See also Anyanwu V Uzowuoka (2009) 7 SCNJ 29. Now, can the Defendants/Appellants be said to have made the identity of the land in dispute an issue in this case? Certainly not! It is clear from the evidence that both parties unquestionably know the land in dispute. In the face of this evidence, can the Appellants be said to have any doubt about the land in dispute? I hold that they certainly have no doubt about the land in dispute. This is more so where the Defendants in their evidence before the trial Upper Area Court were laying claim and seeking ownership of the self-same land on ground of inheritance, even though they did not file any counter-claim. They cannot in the same breath turn around to argue that the identity of the land they were disputing with the Respondent was not established.
Also, the fact that both parties refer to the same land by different names does not make the identity of the land uncertain, particularly where the Plaintiff’s claim thereto is tied to a survey plan. See Nwokorobia V Nwogu (2009) 5 SCNJ 218. In any event, the trial Court was satisfied with the identity of the land in dispute as claimed by the Respondent and I see nothing on record to warrant the intervention of the lower Court, or of this Court for that matter, in respect of that finding.
From the evidence of the parties in Court, the parties do, in actual fact, know the extent and description of the disputed land going by the Exhibit A1 and the evidence of their witnesses in Court. I therefore hold, in unison with the trial and the lower Court that there was no dispute which needed to be resolved in relation to the fact that the land in dispute was at Bujum Abbare. What the parties seriously disputed was the ownership of the land in dispute.
The High Court sitting in its appellate jurisdiction at page 88 of the Record held that there was no basis to interfere with the findings of facts in the Judgment of the trial Judge, which in their view is unimpeachable. In the case at hand, I am also of the view that the learned trial Judge meticulously evaluated the evidence when he declared the land in favour of the Respondent. I cannot fault the conclusion of the trial Court and the lower Court on the issue of the identity of the land. Thus, I resolve the sole issue in favour of the Respondent.
Issue two is whether Exhibit A1, i.e. the Customary Certificate of Occupancy/granted to the Respondent was rightly admitted and the High Court was right to have held that it was properly admitted. I have also perused the evidence on record and given a microscopic examination to the documents, Exhibits A and A1, tendered in support of the case. I do not see the rationale for the fuss generated with respect to the admission of Exhibit A1 by the learned trial Judge. Exhibit A1 is the Certificate of Occupancy issued to the Respondent by the Karim Lamido Local Government Council as his document of title in respect of the said farmland. The lower Court after due consideration of the submissions of both Counsel, held thus at pages 86-87 of the Record:
“The meaning of statutory grant contained in Section 2 of the Land Instrument Registration Act has taken out Customary Rights of Occupancy granted by a Local Government as a registrable document. We make bold to state that it is only when a holder of such Customary Rights of Occupancy wants or assigns same to another party that it becomes mandatory for (sic) assignee to have his right registered. It is because of the foregoing that we hold that Exhibit A1 is not subject to registration it only becomes registrable on its being transferred from the original owner to a subsequent owner.”
Even though learned Counsel for the Appellant made such a song and dance out of this issue at the Court below, his submissions on the issue in his Brief of argument before this Court were quite meagre, un-impressive and smacked of a lack of conviction in the query raised thereon. Counsel merely complained that, the fact that it was admitted without objection from Counsel for the Defendants does not preclude the Court from considering the document on appeal and expunging it from evidence. He contends that the Appellants are “discomforted” by the admission of Exhibit A1 as the production of a certificate of occupancy is not conclusive evidence of title. Relying on Gwar V Adole (2003) FWLR (Pt. 176) 747 @ 773, he urged the court to expunge the certificate and hold that the Respondent’s title to the land does not hold. Certainly, where there is no title to pass, a certificate of occupancy cannot purport to pass title to an individual. Also where another has a better title than one holding a certificate of occupancy, customary or statutory, then a holder of such a certificate cannot be said to have acquired title to the land. That however is not the issue in the instant Appeal. And since learned Counsel for the Appellant failed to adequately articulate his arguments on this issue, this Court declines to jump into the arena with the Appellant and risk getting bloodied by the parties in the heat of battle. I am content to stand serenely by the sidelines and watch proceedings as the impartial arbiter I am supposed to be.
Finally, a Court of Appeal should not lightly reverse or disturb the view or conclusions of a trial Judge based on the credibility of witnesses. The learned trial Judge properly, adequately, eloquently and manifestly analysed the evidence led by the parties, their witnesses and exhibits before he came to a decision as reflected on the Record. Whereas the Respondent succeeded in establishing his title, the Appellants failed woefully to plead and to establish by credible evidence inheritance upon which they predicated their claim to the land, as a defence to the Respondent’s claim.
This matter principally had to do with the findings of facts by the two Courts below. The findings of fact by the trial Court was amply supported by the evidence on Record. The lower Court was therefore right in affirming those findings. I see no trace of misdirection as to the onus of proof of title. This Court will thus not interfere except for compelling reasons clearly depicted. Such compelling reasons are glaringly absent in this Appeal. Hence, I cannot see my way clear in interfering with the concurrent findings of fact ably arrived at by the two Courts below. See Orlu V Gogo-Abite (2010) 1 SCNJ 323; See Seven Up Bottling Co. V Adewale (2004) 4 NWLR (Pt. 862) 183.
The practice is well established that the concurrent findings of fact by the trial Court and the High Court sitting in its appellate jurisdiction should not be disturbed by this Court where there is sufficient evidence to support them, unless there is a miscarriage of justice and violation of some principles of law and procedure by the two lower Courts which are glaring on the fact of the Record. This is not the position in this case. In the circumstances, the Appellant has not shown sufficient reason why this Court should interfere with the impeccable findings of the two lower Courts. See Atuyeye V Ashamu (1987) 1 NWLR (Pt. 49) 267; Nwakide V Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ibodo V Enurofia (1980) 5-7 SC 42.
In the final analysis, the Appeal lacks merit and it is hereby dismissed. The Judgment of the lower Court is affirmed. N50, 000.00 costs is awarded in favour of the Respondent.
SOTONYE DENTON WEST, JCA: I agree.
IGNATIUS IGWE AGUBE, JCA: I have read in advance the well considered Judgment of my learned brother J. H. Sankey JCA, and I am in total agreement with his reasoning and conclusion that the identity of the land in dispute was not in doubt and that the crucial question for determination in the trial Court was the ownership of the land. From the totality of the evidence elicited by the parties, it was clear that the Respondent proved better title as against the Appellants who could not plead sufficient facts nor lead ample evidence to prove their title to the land in dispute.
It must be stressed that the Appellants who relied on inheritance as his root of title ought to plead and establish by cogent evidence the following:
1. How the land was founded;
2. The name(s) of the Ancestor(s) who founded the land and exercised original acts of possession of the land, and
3. Names of persons on whom the title to the land had devolved before he inherited same. See Idundun V. Okumagbe (1976) 9 – 1- S.C. 227 (1976) 1 NMLR 200 per Fatayi Willams JSC; Onwugbufor V. Okoye (1996) 1 SCNJ 1 at 20 – 21 and Dioha V. Ohia (2005) ALL FWLR (pt.291), 713 at 721 paras. A-D.
Having failed to plead and establish these essential facts in the trial Court, the Courts below had no other alternative than to give Judgment in favour of the Respondent.
I agree also with my Lord that since the Appeal is principally anchored on the findings of facts of the trial Court and as those findings were amply supported by evidence on Record, and devoid of any perversity in any material particular more so, when the Court of trial and Appellate High Court, have arrived on concurrent findings of facts on the critical issues then in contention; this Court has no business setting aside their judgments or interfering with same even if we could have come to a different position. This is because the trial Court was in a more advantageous position to have heard and watched the demeanour of the witnesses and ascribed probative value to their evidence and herein, as an Appellate Court, we are only content with the Record of proceedings of the lower Courts. See Anyegwu V. Onucha (2009) 37 NSCQR 109 at 126 – 129; Mogafi V. Odofin (1978) 4. S.C. 91; Adeyeye V. Ajiboye (1987) 3 NWLR (pt.61) 492 and Kaydee Ventures LTD V. The Hon. Minister of FCT (2010) ALL FWLR (pt. 519) 1078 S.C.
My Lord has rightly held that the lower court was right in affirming the decision of the trial Court and that from the surrounding circumstances of the case, the Appellants have not shown sufficient reason(s) why this Court should interfere with the findings of the lower Court. It is for the above reasons and the more elaborate ones advanced by my Lord in his lead Judgment, that I too shall dismiss the Appellants’ Appeal in its entirety and affirm the decision of the Appellate High Court in all its ramifications.
I abide by the order as to costs.
Appearances
For Appellant
AND
H.M. Rabiu Esq.For Respondent
