KADUNO v. IDI (2020)

KADUNO v. IDI

(2020)LCN/14735(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/G/260/2019

RATIO

JURISDICTION: RULES APPLICABLE IN THE ISSUES OF JURISDICTION

It is important that a party who perceives that a Court has no jurisdiction to hear a cause or matter must raise the issue at the earliest opportunity.
Correspondingly, a Court is expected to decide the issue of its jurisdiction to hear a case when a challenge is raised at the earliest opportunity Nnonye vs Anyichie (2005) 2 NWLR pt 910 pg 623.
Where the jurisdiction of a Court over a suit is challenged, the Court is entitled under Section 6 of the 1999 Constitution to consider the plaintiff’s claim before it in order to decide, whether it has the jurisdiction to entertain it.Adeleke vs O.S.H.A (2006) 16 NWLR pt 1006 pg 608 Egbebu vs I. G. P (2006) 5 NWLR pt 972 pg 146.
When the jurisdiction of a Court is challenged, the Court should expeditiously attend to it particularly at the trial stage and even on appeal. The Court can also raise the issue of jurisdiction suo motu so long as the parties are accorded the opportunity to react to the issue. Where the Court’s jurisdiction is challenged irregularly by a preliminary objection, the irregularity does not affect the fundamental nature of jurisdiction and a Court has a duty to consider the issue. Jurisdiction cannot be assumed in the interest of justice. A Court either has or does not have jurisdiction. Ajayi vs Military Administrator Ondo State (1997) 5 NWLR pt 504 pg 237, Amadi vs NNPC (2000) 6 SC pt 1 pg 60, Galadima vs Tambai (2000) 6 SC pt 1 pg 196. PER NDUKWE-ANYANWU, J.C.A.

APPEAL: ESSENCE OF NOTICE OF APPEAL

The law is well settled that appeals are initiated by notice of appeal. A notice of appeal is therefore the initiating process and fundamental in nature. A faulty foundation cannot stand, where a defective notice of appeal is filed, the Court loses power to amend the already filed notice of appeal. See Ohajunwa vs Obelle (2008) 23 NWLR pt 1073. Where it was held that notice of appeal is the foundation and substratum upon which every appeal is built. Any defect in the notice of appeal is capable of rendering the appeal incompetent and the appellate Court will be deprived of the required jurisdiction of entertaining the appeal on the merits or any interlocutory application based thereon. PER NDUKWE-ANYANWU, J.C.A.
LAND LAW: DUTY OF A PLAINTIFF WHO SEEKS A DECLARATION OF TITLE TO LAND

A plaintiff who seeks a declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him. Archibong vs Edak (2006) 7 NWLR pt 980 pg 485, Dike vs Okoloedo (1999) 10 NWLR pt 623 pg 359 Otanma va Youdubagha (2006) 2 NWLR pt 964 pg 337.

In a claim for declaration of title to land a plaintiff has the burden of proving his case upon his own evidence. Otanma vs Youdubagha (supra) Onisaodu vs Elewuju ( 2006) 13 NWLR PG 999 pg 517. Dike vs Okoloedo (supra) Madubuonwu vs Nnalue (1999) 11 NWLR pt 628 pg 673 Eze vs Atasie (2000) 6 SC pt 1 pg 214, Elema vs Akenzua (2000) 6 SC pt III pg 26 Itauma vs Akpe-Ime (2000) 7 SC pt II pg 24. PER NDUKWE-ANYANWU, J.C.A.

LAND LAW: WHETHER A CLAIMANT CAN RELY ON OTHER METHODS OF PROVING TITLE TO LAND AFTER FAILING IN ONE

Where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn around to rely on acts of ownership and possession to prove his title to the land.
As a matter of course, there would be nothing on which to found acts of ownership. In such a case, the Court is obliged to dismiss the claimant’s claim Similarly, where a defendant who claim for title in a land fails to prove his root of title by traditional history as pleaded, his defence to the claim would also fail. Oyadare vs Keji (2005) 7 NWLR pt 925 pg 571.PER NDUKWE-ANYANWU, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

HASSAN KADUNO APPELANT(S)

And

RUBEN REV. IDI RESPONDENT(S)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Gombe State sitting in its Appellate jurisdiction. The judgment was delivered on 30th June, 2018 by M. A. Pindiga J Presiding and P. I Appollos J. dismissing the judgment of the Upper Area Court and affirming the judgment of the Area Court.

Being dissatisfied, the Appellant who was the defendant at the Area Court filed his appeal with five (5) grounds. The Appellant filed his Appellant’s brief on 6th February, 2020 and in it articulated six (6) issues for determination by the Court.

There are recapped hereunder:
i. Whether the Gombe State High Court has the requisite jurisdiction to sit on appeal over its own earlier ruling deeming the cross-appeal as dully filed by later reversing itself and striking out the appeal as having not been properly filed under the circumstances as did in its judgment. Issue settled from ground (2) of the additional grounds of appeal.
ii. Whether the Gombe State High Court was right to have swept under carpet the issue of challenge to the jurisdiction of the trial Area Court

and the Upper Area Court Bambam when same was raised for determination before it and whether that act does not amount to a breach of the Appellant’s fundamental right to fair trial. Issue settled form grounds 1 & 2 of the original grounds of appeal.
iii. Whether or not the Gombe State High Court was right to have confirmed the Respondent with title over the disputed farmland contrary to the established custom applicable to the case and most especially when the Respondent’s father was still alive. Issue settled from ground four (4) of the original grounds of appeal.
iv. Whether or not Gombe State High Court was right to have struck out the Appellant’s cross-appeal to that Court as being incompetent based on the reasons given for doing so. Issue settled from ground one (1) of the additional grounds appeal.
v. Whether the Gombe State High Court was right to have overruled the Upper Area Court Bambam by holding that it did not see any bias or connivance anywhere between the trial Area Court Nyuwar and the Respondent to dispossess the Appellant of the disputed land. Issue settled from ground three (3) of the original grounds of

appeal.
vi. Whether the decision of the Gombe State High Court just like all the lower Court to confirm the Respondent with title over the disputed land when his initial claim before the trial Court was not established by credible evidence was not a decision against the weight of evidence. Issue settled from ground five (5) of the original grounds of appeal.

The Appellant also filed his Appellant’s reply brief on 20th July, 2020 and deemed properly filed and served on 9th September, 2020.

The Respondent filed its Respondent’s brief on 27th April 2020 and deemed properly filed and served on 9th September 2020. The Respondent also articulated four (4) issues for determination as follows:
i. Whether the Gombe State High Court was right to have struck out the appellant’s cross appeal to that Court as being incompetent? (distilled from ground 1 and 2 of the additional ground of appeal).
ii. Whether the notice of cross appeal of the Appellant as filed before the High Court accorded the High Court the Jurisdiction to hear and determine the cross appeal of the appellant? (distilled from grounds 1 and 2 of the original grounds of

appeal)
iii. Whether the Gombe State High Court was right affirming the decision of the trial Court which properly evaluated the evidence, made findings of fact and conferred title of the land in dispute on respondent? (Distilled from grounds 4 and 5 of the original grounds of appeal).
iv. Whether the Gombe State High Court was right to have held that it did not see any bias or connivance anywhere between the trial Court Nyuwar and the respondent? (Distilled from ground 3 of the originals of appeal).

The six issues articulated by the Appellant are verbose and unwieldy; I will compress them into two issues for ease of determination.
1. Whether the Court had jurisdiction to adjudicate over this matter in the Area Court ab initio and at the High Court on appeal.
2. Whether the High Court Gombe was right in affirming the judgment of the Area Court.

ISSUE 1
The Appellant’s counsel submitted that once a Court determines an issue it becomes functus officio. This is in reference to the Appellant’s motion for extension of time to appeal. The Court granted his application for extension of time to appeal. Counsel states

that the Court cannot revisit it again. See Onwuka vs Maduka (2002) pt 103 LRCN pg 2267.

The motion for extension of time was moved and granted with an order that the cross appeal was properly filed and served. At the hearing of the appeal, the Respondent herein as Appellant noted and argued that the cross appeal of this Appellant’s grounds 1 & 2 raised in the cross appeal were fresh issues that required the leave of Court. Both parties argued these issues and the Court held that the cross-appeal required leave to file those grounds. The Court held inter alia that:
“On the cross appeal, the cross appeal is incompetent as the cross appellant ought to seek the leave of Court before cross-appealing. So, it is hereby struck out.”
Counsel argued that this issue was suo motu raised by the Court and determined.

Counsel claimed that the question of the suit in the Area Court being statute barred was raised but was not determined in the lower Court. Counsel argued that the Appellant had been cultivating that land for a long time before the Respondent started claiming the land.

Counsel therefore, urged the Court to determine

the questions of jurisdiction posed by the Appellant.

RESOLUTION
It is important that a party who perceives that a Court has no jurisdiction to hear a cause or matter must raise the issue at the earliest opportunity.
Correspondingly, a Court is expected to decide the issue of its jurisdiction to hear a case when a challenge is raised at the earliest opportunity Nnonye vs Anyichie (2005) 2 NWLR pt 910 pg 623.
Where the jurisdiction of a Court over a suit is challenged, the Court is entitled under Section 6 of the 1999 Constitution to consider the plaintiff’s claim before it in order to decide, whether it has the jurisdiction to entertain it.Adeleke vs O.S.H.A (2006) 16 NWLR pt 1006 pg 608 Egbebu vs I. G. P (2006) 5 NWLR pt 972 pg 146.
When the jurisdiction of a Court is challenged, the Court should expeditiously attend to it particularly at the trial stage and even on appeal. The Court can also raise the issue of jurisdiction suo motu so long as the parties are accorded the opportunity to react to the issue. Where the Court’s jurisdiction is challenged irregularly by a preliminary objection, the irregularity does not affect

the fundamental nature of jurisdiction and a Court has a duty to consider the issue. Jurisdiction cannot be assumed in the interest of justice. A Court either has or does not have jurisdiction. Ajayi vs Military Administrator Ondo State (1997) 5 NWLR pt 504 pg 237, Amadi vs NNPC (2000) 6 SC pt 1 pg 60, Galadima vs Tambai (2000) 6 SC pt 1 pg 196.

The Respondent herein as Appellant challenged the competency of the Appellant’s cross appeal in the High Court. Respondent argued that the Appellant’s cross appeal was incompetent having not sought the leave to appeal out of time and leave to raise fresh issues that were not in the grounds of appeal. The Appellant in the lower Court filed a motion for extension of time to file its cross appeal out of time.

The High Court graciously granted that order for extension of time. However, the Respondent contended that even though the Appellant sought for extension of time, but did not also seek leave to appeal. During the hearing of the appeal, the Respondent and the Appellant herein proffered arguments for and against. It is surprising for the Appellant to state that the Court suo motu raised the issue

of leave and determined it without the impute of the parties.

The Respondent arguments are recapped hereunder from pg 82-83 of the Record of Appeal.
The notice of cross appeal of the appellant has three grounds of appeal. Grounds one and two are challenging the decision of the Area Court which is the trial Court. Ground one challenges the decision of Area Court Bambam. It is submitted that the grounds is grossly incompetent as the judgment it seeks to attack is not before the Court.
The law is well settled that appeals are initiated by notice of appeal. A notice of appeal is therefore the initiating process and fundamental in nature. A faulty foundation cannot stand, where a defective notice of appeal is filed, the Court loses power to amend the already filed notice of appeal. See Ohajunwa vs Obelle (2008) 23 NWLR pt 1073. Where it was held that notice of appeal is the foundation and substratum upon which every appeal is built. Any defect in the notice of appeal is capable of rendering the appeal incompetent and the appellate Court will be deprived of the required jurisdiction of entertaining the appeal on the merits or any interlocutory

application based thereon.
Ground two is also complaining of the decision of the trial Court. This ground is also incompetent because this Court is sitting in its appellate jurisdiction and can only hear appeals against the decision of the upper Area Court or Magistrate/District Court.
In Martins vs Cop (2012) 213 LRCN 19 at 22 ratio 1 the Supreme Court dealing with grounds of appeal like the one in this case held thus:
“This Court has no jurisdiction to sit on appeal against the judgment of the Chief Magistrate Court. The Court can only entertain an appeal against the judgment of the Court of Appeal. Therefore, any appeal to this Court must be challenge the judgment of the Court of Appeal. Any issue thus formulated for determination must not only arise from the grounds of appeal but also relate to issues determined by Court of Appeal which correctness or otherwise is put before use for determination”
It is therefore submitted that by grounds 1 and 2, this Court has no jurisdiction to hear the cross appeal on those grounds. Even the issues raised by those grounds are novel issues which cannot be valid without the leave of Court. In

Martins vs Cop Supra the Supreme Court held that:
“The only exception, however, is where an application is brought and granted by this Court for a party to raise an issue not raised before the Court of Appeal”.
It is submitted that there being no application to raise the issue covered by grounds 1 and 2, this Court lacks the jurisdiction to entertain the appeal.
It is also submitted that since grounds 1 and 2 are in incompetent, they are liable to be struck out, together with the issues and argument thereon. See Abubakar vs Waziri (2008) 61 LRCN 72 at 75 ratio 1

In response, the Appellant herein as Respondent argued as recapped hereunder:
We opposed the main appeal in so doing, we have filed our Respondent’s brief dated 7th June 2018. We humble adopt the said brief as our oral submission. We urge the Court to dismiss the main appeal by a motion dated 30th May 2018, the Respondent filed a cross appeal, we have equally filed a brief in respect of this cross appeal dated 7th June 2018. We have been served with Respondent’s brief of Argument to our cross appeal, learned counsel submitted that we required leave of

Court to raise fresh issue, we submit that this is only applicable where the appeal is before the Court of Appeal not High Court sitting on appeal, we submit that this act cannot sit over the decision of Area Court as was submitted by the Appellant, the position of the law is that when Section 53(1), Area Court’s law that is the position of the law. We finally urge the Court to discountenance with the submission of the counsel to the Appellant. Dismiss the appeal and allow the cross appeal.

The learned judges sitting in their appellate jurisdiction after hearing the arguments of counsel struck out the cross appeal as incompetent for failure to seek leave to appeal and raise fresh issues. See Sowemimo vs State (2004) 118 LRCN pt 4141 where the Supreme Court held thus.
“…in the case of proceedings, the Court found as facts that;
(a) The cross appellant did not apply for an extension of time for leave to cross-appeal.
(b) Did not equally seek the leave of the Court to file the cross-appeal.
It would be noted that indeed the Appellant in the Court below sought for extension of time to appeal but never sought for leave to

appeal, Nwaolisah vs Nwabufor (2011) 199 LRCN pg 21. The Supreme Court held:
“Leave of Court, where it is required, is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court”
See Anachebe vs Ijeoma (2014) LPELR 2318. Omage JCA held that
“In all cases anyway, the duty is on the Court depending on the circumstances to see whether leave should be granted”
seeAroyewun vs Adebanji (1976) 11 SC pg 33.
Ngwuta JSC in Anachebe vs Ijeoma (supra) held:
“Leave to appeal is required only when the judgment sought to be appealed is not a final judgment or the appeal is on grounds other than law. If the appeal is one that can be filed as of right, then if the applicant is not out of time he has to seek for extension of time to appeal, and not leave to appeal”
In this appeal the cross appellant only sought for extension of time. It never sought leave to appeal and raise fresh issues. Skye Bank vs Iwu (2017) LPELR 42595.

Tobi JSC in Nigeria Airforce vs Shekete (2002) LPELR 3193 stated succinctly, showing the distinction between leave to appeal and leave for extension of time to appeal.
“There is a world of difference between leave to appeal and leave for extension of time to appeal, which is leave to appeal out of time. Leave to appeal and leave for extension of time to appeal are not synonyms of procedures of a similar or like content. An application or motion for leave to appeal presupposes that appeal, by the relevant rule, is not as of right. The Appellant therefore seeks permission of the Court to file an appeal. On the other hand leave for extension of time to appeal presupposes that the statutory time for appeal has expired and so the Appellant seeks permission of the Court to extend time within which he can appeal. Both counsel and the Courts must appreciate the above difference in our adjectival law.” Igwebuike vs Okoye (2016) LPELR 41058.
The High Court, the Court below in its appellate jurisdiction held that the cross appeal was incompetent as the leave of Court was not sought for grounds of mixed law and facts see Maigoro vs Garba (1999) LPELR 1820, where

Ejiwunmi JSC held as following
“It is therefore clear that the Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and facts unless, of course leave has been obtained. This point has been emphasized in a number of recent decisions. It is enough to refer only to the following.
Oluwole vs Lagos State Development Property Corporation (1986) 2 NWLR pt 23 pg 484. Aniagolu JSC also gave circumstances where leave to appeal is required thus:
“The weight of evidence ground of appeal is clearly a ground of appeal on facts. That requires the leave of the Court of appeal or of this Court before it can be considered by the Supreme Court. Otti Vs Ogah (2017) LPELR 41986 Ojemen vs Momodu III (1983) 3 SC pg 228, Akpasubi vs Umweni (1982) 11 SC pg 132.

The Appellant also canvassed the issue of this case in the Area Court being statute barred. The Appellant canvassed this issue but did not give the time frame from when the cause of action arose. The Appellant simply argued that he has been in possession of the disputed land for a long time before the Respondent sued him in Court. When canvassing a case for statute

bar, the party must give time frame on which the Court will use to measure time and determine when it can be said that the cause of action arose.
“A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to a right to sue and it consists of two elements, viz, the wrongful act of the defendant, which gives the plaintiff his cause of complaint, and the consequent demage. Adesokan vs Adegorolu (1997) 3 NWLR pt 493 pg 261, Ajayi vs Mil. Adm. Ondo State (1997) 5 NWLR pt 504 pg 257 Rhein Mass Und See GMBH Vs Rivway Lines Ltd (1998) 5 NWLR pt 549 pg 265, Emiator vs Nig Army (1998) 12 NWLR pt 631 pg 362 Agbanelo vs UBN Ltd (2000) 4 SC pt I pg 233, Oduntan vs Akibu (2000) 7 SC pt II pg 106, Messrs NV Scheep vs The MV “S Araz” (2000) 12 SC pt 1 pg 164.
An action or suit is statute barred where either the provisions of the Public Officers (Protection) Law POPA or the provisions of a Limitation Law applies per Bdliya JCA in Mudun vs Adanchi 2013 LPELR 20774, Egbe vs Adefarasin (1987) LPELR 1032.
In this appeal, the Appellant did not state

when the cause of action arose and vis-a-vis when the suit was instituted.

The Statute of Limitation however, does not have any effect on Customary Law in respect of title to land see Section 1(2) of the Limitation Law which provides,
“nothing in this law affects actions in respect of title to land or any interest in land held by Customary tenure or in respect of any matter which is subject to the jurisdiction of a Customary Court relating to marriage, family status, guardianship or children, inheritance or disposition of property on death”.
In Ogunlade vs Adeleye (1992) 8 NWLR pt 260 pg 409. The Supreme Court held as follows:
“in view of the provision of Section 1 (2) of the Limitation Law which excludes an action in respect of the title to land or any interest in land held by customary tenure from the operation of the law and as the interest in the land, subject matter of the action in the trial customary tenure, it follows that Section 4(4) would not apply to the present case. Consequently therefore, the defendants contention to the contrary and upon which he has now based his appeal to this Court must fail”

Kensal Farm Ltd vs NigerCat Construction Company (2013) LPELR 20162.
In view of the clear provisions of Section 1(2) of the Limitation Law, the matters clearly contemplated by the said provision are those dealing with interest in land held by Customary Law. In sum, the question of statute barred in this appeal is a non issue as it has no place in land held under the Customary Land tenure. Therefore, this question of statute barred in this appeal is misconceived.

All the questions raised that challenged the jurisdiction of the Court canvassed by the Appellant have all been resolved against him.

ISSUE 2
RESOLUTION
Whether the High Court of Gombe was right in affirming the judgment of the Area Court.

In a claim for declaration of title to land a plaintiff has the

burden of proving his case upon his own evidence. Otanma vs Youdubagha (supra) Onisaodu vs Elewuju ( 2006) 13 NWLR PG 999 pg 517. Dike vs Okoloedo (supra) Madubuonwu vs Nnalue (1999) 11 NWLR pt 628 pg 673 Eze vs Atasie (2000) 6 SC pt 1 pg 214, Elema vs Akenzua (2000) 6 SC pt III pg 26 Itauma vs Akpe-Ime (2000) 7 SC pt II pg 24.

The Respondent in this appeal as plaintiff in the Area Court traced his title to his father Rev. Idi, to Baushi, his father’s senior brother from Baushi to his grandfather Tulu Tulu. His grandfather was the one who first cleared the land. The Respondent in proof properly gave the names of the boundary men. The Respondent showed his boundaries and it was measured
(1) From the North to the South by the East 177 footsteps sharing boundary with the farm of Fanus Waziri by the east.
(2) From East to West by the South 85 footsteps sharing boundary with Tanko Bello by the South and on West with the farms of Tanko Bello and Sale Mairiga.
(3) From South to North by the West 250footsteps sharing boundary with the farm of Galadima Wampes and
(4) From West to East by the North 54footsteps sharing boundary with the farm

of Galadima Wampes.

During the visit to the locus in quo, the Appellant was also there. The boundary men were also there and acknowledged the boundary the Respondent mapped out.

The Appellant then gave his own description and mapping out thus.
i. From North to South by the East 175 footsteps and it bond to the South up to the place where boundary grasses are planted by the South and Tanko bello said Hassan entered his farm with 16 footsteps. Also Fanus Waziri said Hassan entered his farm by the East.
ii. From the road to Fumur by the East to the West 77footsteps sharing boundary with Fanko Bello’s farm by the South and it bent by the West and shares boundary again with Tanko Bello.
iii. From South to North by the West sharing boundary with Sale Maigari’s farm by the West and it bent in the place where there is ant hill and the farm stretches to the boundary grasses to the north total footsteps is 243.
iv. From West to East by the North 59 footsteps sharing boundary with Galadima Wampes farm and Galadima Wampes said Hassan entered his farm small because the boundary is where there is Tumfatiya
From this mapping,

all of the boundary men stated that the Appellant had encroached in their own land since the land in dispute is known but it appears the Appellant does not know the limit of the land in dispute.
“A plaintiff seeking a declaration of title to land, has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extant as no Court would be obliged to grant a declaration to an unidentified land on one not demarcated with certainty.
In other words, before a plaintiff in an action for declaration of title can get title, he is duty bound to show to the Court the area of land to which his claim relates. This is because before a declaration of title is granted, there must be credible evidence describing and identifying the land with certainty. See Ogedengbe vs Balogun (2007) 9 NWLR pt 1039 pg 380, Adelusola vs Akinde (2004) 12 NWLR pt 887 pg 295, Okochi vs Animkwoi (2003) 18 NWLR pt 851 pg 1.

The Respondent delineated his land the subject matter of this dispute as against the Appellant who encroached on all the boundary men on the land whilst they were at the locus in quo.

The Respondent traced his root

to his grandfather Tulu Tulu. It was Baushi the Respondent’s uncle, his father’s senior brother that gave the land for cultivation to Kaduno. It is also on record that the Appellant’s father Kaduno was paying tribute to Rev. Idi, the Respondent’s father.

The Appellant in proof of his own root said that he inherited from his father who inherited from his uncles,
1) Guji (2) Maliya (3) Yitubuni
When Kaduno, the Appellant’s father died, his own uncles (1) Orpha (2) Liazarus and Albira Danladi inherited. The Appellant said he is cultivating the land at the pleasure of his own uncles. At the locus in quo, the appellant could not demarcate the disputed farmland as he was said to have encroached on the four boundary men. This means also that the Appellant could not identify with certainty his boundaries.

From the evidence of the Pw2, it could be deciphered that Tulu Tulu was the grandfather of the Respondent. His uncle Baushi his father’s senior brother was the one who allowed Kaduno to cultivate the land.

After the death of Baushi, the Respondent’s father Rev. Idi told Kaduno to stop cultivating the

farm. He also warned Hassan Kaduno to stop cultivating the farm.

From the evidence gathered from most of the P/witness, they testified that the disputed land was that of Tulu Tulu who also cleared the land initially. This piece of evidence was not controverted by the Appellant.

The Appellant could not state for certain beyond his father’s uncle who cleared the land, which is very important. Some of the Appellant’s witnesses even testified that the land was originally Tulu Tulu’s land. The Appellant and Tulu Tulu do not have any blood ties. Apparently in their custom, land devolves either through the father’s line or through the mother’s line. What this means is that the Appellant cannot by any stretch of imagination inherit that particular land owned by Tulu Tulu, the grandfather of the Respondent.

Where the Appellant and the Respondent in this appeal anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. Ibikunle vs Lawani (2007) 3 NWLR pt 1022 pg 580,

Okolo vs Dakolo (2006) 14 NWLR pt 1000 pg 401.

The Respondent had proved his claim for a declaration of title to the disputed land. This issue is also resolved against the Appellant.

This appeal is unmeritorious. It is dismissed. I affirm the judgment of the High Court of Gombe State sitting in its appellate jurisdiction.

Cost to the Respondent is assessed at One hundred thousand naira (N100,000.00).

JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of reading in draft the Judgment just read by my learned brother, Ndukwe-Anyanwu, J.C.A.

For the same reasons, I agree that the appeal is without merit and should be dismissed.
I adopt the reasons as mine and also dismiss the Appeal.
I abide by the consequential Orders, including the Order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the privilege of reading the draft of the Judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA.

I agree with his Lordship that the appeal is unmeritorious, his Lordship having without fault, resolved the germane issues (compressed into two by his Lordship) against the Appellant and in favour of the Respondent.

In the main, both the Appellant and the Respondent sought to prove their respective claims to title by traditional history. The law is clear on the duty of one who claims title to land through traditional history. The authorities on this are legion. In the case of Alabelapa vs. Ajisefini (2017) LPELR-43234 (CA), this Court held:
“Where a person relies on traditional history as his root of title to land, as in the instant case, the onus is on him to plead the root of title, names and history of his ancestors. He should lead evidence to show same without leaving any

missing links in a genealogical tree from progenitors and eventually pass it to him. See AWODI v. AJAGBE (2015) 3 NWLR (Pt. 1447) 578. From the pleadings and evidence on record, it is clear that the parties relied on traditional evidence in proof of the title to the disputed land. It is trite that a party who I relying on traditional history must plead and prove the founder of the land, the manner in which the land was founded and the names and particulars of successive ancestors through whom he claimed.” Per ABDULLAHI, JCA (Pp. 39-40, paras. D-A)
See also the case of Anyanwu vs. Mbara & Anor (1992) LPELR-516 (SC), at Pp. 15 – 16 paras F – B.

From the evidence before the Court, the Respondent was able to establish his title in accordance with the requirement of the law. The Respondent traced his title to his father, Rev. Idi to Baushi, his father’s senior brother who got the land from his grandfather Tulu Tulu, who it was that first deforested the land.

However, the same cannot be said of the Appellant. The Appellant could not precisely trace his title beyond his father’s uncle, and most importantly could not also

state the name of the person who first founded the land. His case was made worse when some of his witnesses testified that the land was originally that of Tulu Tulu.

The lead Judgment contains an indepth discuss of this vital issue in the determination of this appeal. It is on the premise of the foregoing that I toe his Lordship’s line in dismissing this appeal for lacking in merit. In consequence, I affirm the Judgment of the lower Court.

I abide his Lordship’s order as to costs of N100,000.00 in favour of the Respondent.

Appearances:

A. AKI, ESQ., with him, C. S. KAASE, ESQ. For Appellant(s)

D. KADALA, ESQ., with him, M. N. DANIEL, ESQ. For Respondent(s)