KELVIN Z. ILIYA & ANOR v. PETER LAMU & ANOR
(2019)LCN/12904(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/YL/137/2017
RATIO
COURT AND PROCEDURE: FAILURE OF THE COURT IN HER DUTY
“…Where a trial Court fails in its duty of evaluation of evidence and approbation of weight thereto, or when it demonstrates that it had not taken proper advantage of having heard and seen a witness testify in such a situation, an appellate Court is in as good a position as the trial Court to evaluate the evidence provided the exercise does not involve credibility of witnesses who testified before the trial Court. See Fagbenro vs. Arobadi & Ors (2006) LPELR-1227 SC page 26 per Onnoghen JSC (as he then was now CJN).” PER JAMES SHEHU ABIRIYI, J.C.A.
INTERPRETATION: MEANING OF FAIR HEARING
“Fair hearing according to our law envisages that all parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or Tribunal hearing the parties? case should be fair and impartial without showing any degree of bias against any of the parties. Fair hearing is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case influence and determine the applicability or application of the principle. Fair hearing lies in the procedure followed in the determination of the case not in the correctness of the decision. Accordingly where a Court arrives at a correct decision in breach of the principle of fair hearing an appellate Court will not hesitate to strike out the correct decision in favour of the breach of fair hearing. See Alsthom S. A. vs. Saraki (2005) LPELR-435 SC page 23 and Orugbo vs. U. N. A. (2002) LPELR-2778 SC page 16 ? 17.” PER JAMES SHEHU ABIRIYI, J.C.A.
LAND LAW: WAYS TO PROVE TITLE TO LAND
“…the Courts have held that title to land can be established by traditional evidence; (2) Production of documents of title duly authenticated in the sense that their due execution must be proved; (3) By positive acts of ownership extending over a sufficient length of time; (4) By acts of long possession and enjoyment of the land; (5) By Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be owner of the land in dispute. The law is that the establishment of one of the ways enumerated above is sufficient proof of ownership of the land. See Idundun vs. Okumagba (1976) 9 ? 10 SC 337, Ayoola vs. Odofin (1984) 11 SC 120 and Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31.” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. KELVIN Z. ILIYA
2. LUKA VONYABA Appellant(s)
AND
1. PETER LAMU
2. DAWERE MAZANG Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment delivered on 29th March, 2017 in the High Court of Taraba State holden at Jalingo.
In the High Court (Court below), the Appellants were the Plaintiffs and the Respondents were the Defendants.
The claim of the Appellants against the Respondents was for a declaration that the Appellants are the bona-fide holders of the rights, title and interest over the land in dispute, an order declaring the entry into the disputed land by the Respondents wrongful and an order of perpetual injunction restraining the Respondents from trespassing into the land.
According to the Appellants, their grandfather by name Sharanpani married a woman called Sukoron from the family of the Respondents. When they had a misunderstanding the woman left their grandfather?s house to her father?s house with their daughter.
The woman eloped with another man.
Their grandfather went to recover the dowry he paid on her. The family of the Respondents gave the grandfather of the Appellants a portion of their land in place of the bride price.
The grandfather of the Appellants farmed on the land during his life time. After his death, Baba Iliya Sharanpani and Nvavojo farmed on the land and then Vinyaba. PW3, son of Vinyaba took over the land from his father Vinyaba. He (PW3) was farming on the land until 2013 when the Respondents trespassed into the land.
That after sometime, the Respondents started claiming that portion of the land, divided it into two and took away one part, the Southern part leaving the other part to the PW3.
In their defence, the Respondents stated that over eighty (80) years ago Sukoron one of the children of their great grandfather, Lamu got married to Tanrin. Some years into the marriage Tanrin drove Sukoron away. Lamu paid back the dowry to Tanrin and gave him a small portion of land in order to make the relationship stronger.
Tanrin never took possession of the portion of land given to him by Lamu neither did the son Sharanpani because they felt the land was very far away from their settlement. That the father of the 2nd Appellant never cultivated the land in dispute nor the land given to Tanrin during his lifetime. That it was in 1989 one Invavojo, a grandson of Tanrin requested to be shown the land given to his grandfather, Tanrin. He was shown the land. He took possession and died one year after. The son of Invavojo cultivated the land but vacated the land in 1994 after four years. Then the 2nd Appellant and his sister Cecilia took possession of the land. In 2005, the 2nd Appellant pleaded with the father of DW3 to permit him to cultivate a part of the land in dispute and DW3?s father showed the 2nd Appellant a portion of the land to farm on.
In 2011 after the death of DW?s father, the 2nd Appellant encroached further into a portion of the land which does not form part of the land he was permitted to farm on by the father of DW3; Karuja. DW3 stopped the 2nd Appellant and the person the 2nd Appellant rented the land to from cultivating the land.
When he stopped, the 2nd Appellant from entering the land that he was initially permitted to cultivate by DW3?s father Karuja, the 2nd Appellant reported him to the village head of Dandikulu who after due consideration of the matter declared that the 2nd Appellant had no right over the land.
The 2nd Appellant further reported the DW3 to the District Head of Kwaji who also confirmed that the 2nd Appellant had no right over the land.
The Respondents said that they were born on the land in dispute and the great grandfather of the DW3 and his father were buried on the land in dispute.
After considering evidence adduced by both parties and written addresses of learned counsel for the parties, the Court below dismissed the claim of the Appellants.
The Appellants proceeded to this Court by an original notice of appeal dated 24th May, 2017 and filed on 7th June, 2017. With the leave of this Court granted on 20th March 2018, the Appellants amended their notice of appeal. The amended notice of appeal dated 14th March, 2018 filed on 16th March, 2018 was deemed duly filed and served on 20th March, 2018. It contains seven grounds of appeal.
From the seven grounds of appeal the Appellants in their Appellants? brief dated 1st July, 2018, filed on 5th July, 2018, deemed filed on 23rd October, 2018 and further deemed filed on 15th January, 2019 presented the following two issues for determination:
1. Whether the judgment of the trial Court which was in clear breach of the Appellants’ right to fair hearing is liable to be set aside by this Honourable Court?
(Ground 1 of the Grounds of Appeal)
2. Whether regard been had to the pleadings and evidence on record, the judgment of the trial Court dismissing the claims of the Appellants is perverse and liable to be set aside by this Honourable Court?
(Grounds 2, 3, 4, 5, 6 and 7 of the Grounds of Appeal)
The Respondents in the Respondents’ Brief dated 19th November, 2018, filed on 21st November, 2018 and deemed duly filed and served on 15th January, 2019 also formulated the following two issues for determination:
1. Whether this Honourable Court can evaluate the evidence of PW2 whose testimony was erroneously expunged by the trial judge in the course of delivering judgment. Ground 1
2. If issue one is answered in the affirmative, whether having regards to the pleadings and evidence on record, this appeal is not liable to be dismissed. Grounds 2 ? 7.
Arguing the appeal, learned counsel for the Appellants submitted on issue 1 that the Court below suo motu raised the issue of whether the evidence of Obadiah Shonaban (PW2) was valid in the light of the provision of Order 1 Rule (2) of the Taraba State High Court (Civil Procedure) Rules, 2011, resolved the issue against the Appellants and proceeded to expunge the evidence of the said witness without inviting the parties especially the Appellant who was more likely to be affected to address it. It was submitted that the failure to invite the parties to address the Court particularly the Appellants who were affected by the decision was a breach of the Appellants? right to fair hearing.
The Court was referred to the following authorities: Ominiyi vs. Alabi (2015) LPELR-24399 SC page 23, Egbuchu vs. Continental Merchant Bank Plc & Ors (2016) LPELR-400053 (SC) page 12 ? 13 and Union Bank of Nigeria Ltd & Anor vs. Nwaokolo (1995) LPELR-3385 SC.
It was contended that failure by a Judge to consider all evidence adduced before him will amount to a denial of fair hearing.
The Court below, it was submitted, erred when it held that the Appellants had not sought the leave of the Court before calling Obadiah Shongban as PW2 and that his statement on oath had not been frontloaded.
The Court below, it was pointed out, granted the Appellants? application for leave to substitute the earlier PW2 with the witness whose evidence was expunged. The Court was referred to page 124 of the record.
On issue 2, learned counsel for the Appellants submitted that both parties were in agreement that a portion of land was given to the Appellants? grandfather and that the decision of the Court below that the Appellants did not prove the boundaries of the disputed land was erroneous.
The boundary and identity of the land in dispute, it was submitted, was not in issue. The Court was referred to the decision of this Court in Ogbogwu vs. Aigbo (2013) LPELR-21196 (CA) 34.
The Appellants, it was submitted, had discharged the burden placed on them by law having proved that the disputed land forms part of the land given to their grandfather. The Court was referred to the evidence of PW1, PW2 and PW3.
It was submitted that the evidence of the Appellants? witnesses was never demolished under cross examination. The Appellants, it was submitted, had established their claim and the Court below was in error when it failed to consider the said evidence.
It was submitted that the statement on oath of DW2 is worthless because he admitted under cross examination that he thumprinted it in the office of his solicitor. He relied on the case of Ishaq & Ors vs. INEC & Ors (2008) LPELR-4336 (CA) 43.
DW2, it was submitted, was an untruthful witness and therefore his evidence ought to have been treated as unreliable. The Court was referred to Ukaegbu vs. Nwololo (2009) 3 NWLR (Pt. 1127) 194 at 209.
It was submitted that the evidence of DW3 contradicted that of the DW2 and the Court below erred when it believed the evidence of witnesses for the Respondents inspite of manifest contradictions.
On issue 1, learned counsel for the Respondents pointed out too that the Court below expunged the evidence of PW2 and therefore did not consider and evaluate it which was wrong. This is because the Appellants sought leave of the Court below to substitute Iliya Sharanpani with Obadiah Shongban and leave to do so was granted. There was therefore no reason for expunging the evidence of PW2. It was also submitted that if the Court below had invited counsel to address it, its attention would have been drawn to the proceedings of 20th July, 2016 where the application for leave to admit the evidence of Obadiah Shongban was granted.
However, this Court has the power, it was submitted, to consider and evaluate the evidence of the PW2. The Court was referred to Yakubu vs. U.B.A Plc (2012) All FWLR (Pt. 611) 1468.
Learned counsel for the Respondents submitted that although the Court below erred when it expunged the evidence of the PW2 failure to invite parties to address Court did not amount to a breach of Appellants? right to fair hearing. The Court below, it was submitted, did not raise an issue suo motu.
It was submitted that even if what the Court below did amounted to raising an issue suo motu, it did not need to invite the parties to address it as the issue raised was an issue of law and the Court below could suo motu raise and resolve it without hearing the parties. PW2, it was submitted, testified before the Court below without any hindrance and therefore there was no denial of fair hearing.
The Court was urged to resolve issue 1 in favour of the Respondents and proceed to evaluate to evidence of PW2.
On issue 2, it was submitted that the Appellants failed to establish how they got the land and that this was fundamental to their claim.
Evidence of PW2, it was submitted, was inconsistent and therefore could not be relied upon.
It was submitted that the Court below was right in dismissing the case of the Appellants on the ground that they did not establish their claim based on traditional evidence.
It was further submitted that the decision of the Court below at page 189 of the record to the effect that the Appellants did not prove the boundaries of the land in dispute is right and should be upheld. The Appellants, it was submitted, had failed to establish the exact portion of land given to them by the Respondents’ family.
The Court was referred to the pleadings and evidence of PW1 – PW3 in – chief and under cross examination in relation to the boundaries of the land. It was then submitted by learned counsel for the Respondents that although the identity of the land is known to the parties, the boundaries of the land are in issue considering the peculiarity of the case. Therefore, the contention of learned counsel for the Appellants that the boundaries of the land in dispute is not an issue is misplaced. That the bone of contention is not about where the land is situate but about whether in the known location, the extent of the land claimed by the Appellants forms part of what was given to them by the Respondents? grandfather.
It was submitted that the Appellants failed to show the exact area that the grandfather of the Respondents gave to their grandfather. Therefore the Court below was right to have held that the boundary of the land was in issue.
The Appellants, it was submitted, place reliance on evidence of long possession of the land in dispute but that they woefully failed to prove long possession.
It was submitted that the contention by the learned counsel for the Appellants that the written statement on oath of DW2 is worthless because he stated under cross examination that it was thump printed in the office of his counsel is misconceived. It was submitted that the case of Ishaq & 1 Or vs. INEC & Ors relied upon by counsel for the Appellants is inapplicable in this case because the written statement on oath in that case did not indicats oe it wan oath.
However, in this case, it is manifestly clear that the statement on oath of DW2 was sworn before a commissioner for oaths. The fact that DW2 stated that he thump printed in the office of his counsel, it was submitted, is immaterial because there is no evidence before the Court that the document was not sworn to before a commissioner for oaths, rather the contrary is the case.
It was submitted that the only way the Court can verify if the statement on oath of the DW2 was sworn before the commissioner for oaths or not is for the Court to look at it, as the statement being documentary in nature speaks for itself. The Court was referred to Ikem vs. Vidah Packaging Ltd (2011) All FWLR (Pt. 601) 1476.
It was submitted that if there were any contradictions in the evidence of DW2 and DW3, they were minor contradictions and not necessarily fatal to the Respondents? case. The Court was referred to Taiwo vs. Ogundele (2012) All FWLR (Pt. 639) 1033.
In an Appellants? reply brief, learned counsel for the Appellants pointed out that the issues formulated by the Respondents were not tied to the grounds of appeal. This was done at the hearing of the appeal.
It was further contended that the Respondents wanted the decision of the Court below to be affirmed on a different ground. That is not correct.
Fair hearing according to our law envisages that all parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or Tribunal hearing the parties? case should be fair and impartial without showing any degree of bias against any of the parties. Fair hearing is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case influence and determine the applicability or application of the principle. Fair hearing lies in the procedure followed in the determination of the case not in the correctness of the decision. Accordingly where a Court arrives at a correct decision in breach of the principle of fair hearing an appellate Court will not hesitate to strike out the correct decision in favour of the breach of fair hearing. See Alsthom S. A. vs. Saraki (2005) LPELR-435 SC page 23 and Orugbo vs. U. N. A. (2002) LPELR-2778 SC page 16 ? 17.
In the instant matter, the Appellants filed an original statement of claim. They were granted leave to amend the statement of claim. They listed three witnesses whose statements on oath were filed before the Court. They applied for leave to substitute the second witness they intended to call after hearing had commenced and one witness had been called by them. They were granted leave to substitute the witness. The statement on oath of the witness was filed and the witness was called as PW2. Thereafter the trial continued and counsel for both parties filed their written addresses which were adopted before the Court below wrote its considered judgment. This procedure cannot be faulted. It is not alleged that the Court below showed any degree of impartiality or bias against any of the parties. On the facts of the case it cannot be said that the Appellants? right to fair hearing was breached.
It is common ground between the parties that the Court below erred when it expunged the evidence of the PW2 and therefore did not consider it in the evaluation of evidence before it.
Where a trial Court fails in its duty of evaluation of evidence and approbation of weight thereto, or when it demonstrates that it had not taken proper advantage of having heard and seen a witness testify in such a situation, an appellate Court is in as good a position as the trial Court to evaluate the evidence provided the exercise does not involve credibility of witnesses who testified before the trial Court. See Fagbenro vs. Arobadi & Ors (2006) LPELR-1227 SC page 26 per Onnoghen JSC (as he then was now CJN).
Although the Court below had granted the Appellants leave to substitute Baba Iliya Sharanpani with Obadiah Shongban (PW2) as witness for the Appellants and for his statement on oath to be filed and the witness adopted his written statement on oath and was cross examined the Court below in its judgment made the following finding and order:
Before I proceed further, I would like to observe that the plaintiffs listed three witnesses who would testify in this case who are:-
(1) Jonathan J. Agi
(2) Baba Iliya Sharanpani and
(3) Luka Vonyaba
However, surprisingly at the hearing of this case, the plaintiffs dropped Bala Iliya Sharanpani and called one Obadiah Shongban as PW2.
Obadiah Shongban was not listed as one of the witnesses, even in the amended statement of claim and his deposition on oath was not filed. No leave of Court was sought and obtained before Obadiah Shongban was called as PW2, albeit inadvertently.
Now Order 1 Rule 2 (2) of the Taraba State High Court (Civil Procedure) Rules 2011 provides as follows:-
1……
2(1)…..
(2) Every writ of summons SHALL be accompanied by:
(a) Statement of claim;
(b) List of witnesses to be called at the trial;
(c) Written statement on oath of the witnesses; and
(d) Copies of any document to be relied upon at the trial.?
Sub rule 3 of this Rule provides:
3. Where a plaintiff fails to comply Rule 2(2) his originating process SHALL not be accepted for filing by the Registry.
It is very clear from the provisions quoted above that fielding Obadiah Shongban who was neither listed nor his deposition on oath filed in this case, is a flagrant breach of the mandatory provisions of the Rules of this Hon. Court.
Therefore, the evidence of Obadiah Shongban together with all references to him are hereby expunged from the proceedings of this Hon. Court in this case.?
It is not correct as the Court below stated that no leave was sought and obtained before PW2 was called as a witness. See pages 105 ? 106 and 124 of the record of appeal containing the application in part for leave to effect the substitution. See also pages 118 ? 122 and 125 of the record containing the statement on oath of the PW2, adoption of the written statement on oath and cross examination of the witness whose evidence the Court below wrongly struck out in its judgment. Therefore the evidence of the witness was not considered by the Court below in the evaluation of the evidence by the Court below. Learned counsel for both parties contended that they ought to have been invited especially the party that would be more affected by the decision of the Court below to address it before expunging the evidence of the PW2. With respect to learned counsel for the parties that is not good law. Although it is the law that all parties to be affected by decision are entitled to be heard in the case at hand before a decision is given, it is not permissible to invite parties to address the Court when it is evaluating evidence in the recess of its chambers. What the law envisages is that if in the course of hearing any new point material to the decision arises, all the parties or each of the parties shall be heard on it before a decision based upon it can be rightly handed down. See Ugo vs. Obiekwe & Anor (1989) LPELR-3319 SC page 23 ? 24. In instant matter, the evidence of PW2 properly taken was staring the Court below in the face and the Court did what it liked. And what it liked was to expunge it. It was too late for counsel for any of parties or both counsel to help. This is because the Court was then evaluating the evidence before it.
Because it struck out the evidence of the PW2, the Court below did not evaluate the entire evidence before it. This Court is in as good a position as the Court below to evaluate the evidence because the exercise will not involve the credibility of the witnesses who testified. See Fagbenro vs. Arobadi & Ors (supra).
Issue 1 is therefore resolved against the Appellants and in favour of the Respondents.
By virtue of Sections 133 and 134 of the Evidence Act, in civil cases the burden of proof is on the party who asserts a fact to prove same for he who asserts must prove. The standard of proof required is on the preponderance of evidence and balance of probabilities. A party in a civil case must prove his/its case on credible evidence of his/its witnesses and is not at liberty in law to make a case or rely on the weakness of the defendant?s case in order to succeed. See Daodu vs. NNPC (1998) 2 NWLR (Pt. 538) 355 and Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65.
Since 1976 when Idundun vs. Okumagba was decided by the Supreme Court, the Courts have held that title to land can be established by traditional evidence; (2) Production of documents of title duly authenticated in the sense that their due execution must be proved; (3) By positive acts of ownership extending over a sufficient length of time; (4) By acts of long possession and enjoyment of the land; (5) By Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be owner of the land in dispute. The law is that the establishment of one of the ways enumerated above is sufficient proof of ownership of the land. See Idundun vs. Okumagba (1976) 9 ? 10 SC 337, Ayoola vs. Odofin (1984) 11 SC 120 and Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31.
The claim of the Appellants is hinged on relief 1 which is declaratory in nature. Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. A declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. It is a requirement of the law that the person seeking the declaratory relief must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. Such declaratory relief is not granted even on admission by the defendant. However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the plaintiff?s title. See Anyanru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR-864 SC page 64 ? 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184.
The law on pleadings is firmly established. And the law is that parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. Evidence which is at variance with the averments in the pleadings goes to no issue. See Buhari vs. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Makinde vs. Akinwale (2000) 1 SC 89 and Allied bank (Nig) Ltd vs. Akubueze (1997) 6 NWLR (Pt. 509) 374.
Learned counsel for the Appellants submitted that the statement on oath of the DW2 was useless because it was signed by him in the counsel?s office. He relied on Ishaq & Ors vs. INEC & Ors (supra). With respect to learned counsel for the Appellants that case is inapplicable to this case because the issue of oath and signature of the witness were raised before the witness adopted the statement on oath and the witness did not adopt the purported written statement on oath.
In the instant matter, Appellants? counsel did not object to the adoption of the written statement on oath. Any written statement without the oath will not satisfy the requirement of the Rules of the Court below, that is the Taraba State Civil Procedure Rules. The written statement on oath of the DW2 is at page 44 ? 49. It speaks for itself. It is not permitted to read into it what is not there. It is shown to have been sworn to at the High Court of Justice Registry Jalingo before the Commissioner for Oaths. See page 49 of the record. There is therefore no basis for the submission of learned counsel for the Appellants that the statement on oath of the DW2 is useless.
Learned counsel for the Appellants further submitted that the Court below erred when it believed the evidence of Respondents? witnesses inspite of contradictions. Although learned counsel for the Appellants submitted that the evidence of DW2 contradicted that of the DW3, he failed to point out the contradictions. I have read the evidence of all three defence witnesses over and over again and could not find even minor discrepancies. There were no contradictions in evidence of defence witnesses to render their defence unreliable.
Learned counsel for the Respondents submitted that the Appellants relied on long possession. That is far from the case of the Appellants. They did not rely on long possession.
Learned counsel for the Respondents also submitted that the Appellants failed to establish how they got the land. This submission too is not supported by the pleadings and evidence of witnesses called by both parties. From the pleadings and evidence of witnesses for both parties it is common ground that a grandparent of the Respondents gave a piece of land to the grandparent of the Appellants. However, both parties are not in agreement as to why the piece of land was given by the grandparent of the Respondents to the grandparent of the Appellants.
Both parties are also not in agreement as to the size of the piece of land given by the grandparent of the Respondents to the grandparent of the Appellants. While the Appellants claim it was a large piece of land, the Respondents say it was not. The burden was on the Appellants to establish that the land given to their grandparent by the grandparent of the Respondents was a large piece of land. On the pleadings and evidence led by them they failed to discharge this burden.
The pleadings and evidence led by the Appellants were in my view scanty. On such scanty pleadings and evidence, I do not see how the Court can grant their declaratory relief. They pleaded for example in paragraph 10 that the 2nd Appellant had been farming on the land unchallenged until 2013 when the Respondents trespassed into part of the land. But in paragraph 16 they pleaded that the Respondents trespassed into the land divided it into two and took the Southern part of land leaving out the other part. PW1 called by the Appellants never mentioned that the Respondents trespassed into the Appellants land. PW2 also called by Appellants merely said that the Respondents trespassed into part of the land. That they entered into a portion of the land. He did not say that the Respondents divided the land. He did not say they took the Southern part of the land. It was only PW3 who mentioned that the land was divided by the Respondents and the Southern part taken by them. Even he too initially stated vaguely that the Respondents trespassed into part of the land. If the Respondents trespassed into the land, why did the PW1 not say so? If the Respondents divided the land into two why did the PW2 not say so? It is not suggested either in the pleadings or evidence why the Respondents divided the land into two and took the Southern part. As shown elsewhere in this judgment, the land was given to the Appellants? grandparent by the grandparent of the Respondents. Under cross-examination, the 2nd Appellant (PW3) stated as follows:
The land given to our great grandfathers is the same land in dispute, not a different land.?
He also stated under cross-examination as follows:
I repeat that when I had a problem with Force Wakili, I informed my father who invited the defendants and their parents to settle between us since they were the ones who gave us the land in exchange of dowry. And they did.?
See page 132 of the record. Force Wakili is DW2. If DW2 had a problem with the Appellants over the land given to their great grandparent by the Respondents? great grandparents and the Respondents helped to settle the dispute there would have been no reason why they would divide the same land and take the Southern part as claimed by the (PW3) the 2nd Appellant.
The Appellants pleaded in paragraph 13 of the amended statement of claim that they were exercising acts of ownership including farming and renting out the land. This pleading is scanty because no person who was rented the land by the Appellants was mentioned by name in the pleadings. PW1 and PW3 who stated that the land was rented out did not mention one person by name to whom the land was given out on rent. No tenant of the Appellants on the land was called to testify.
In paragraph 14 of the amended statement of claim, the Appellants averred that one Mai Nayi in 2011 trespassed into the land and the 2nd Respondent reported him to the police and he was made to demolish the structure he erected on the land. No evidence was led in proof of this pleading.
On the scanty pleadings and unreliable evidence led by the Appellants they were not entitled to the declaration sought. And if that relief failed all the reliefs sought would of necessity collapse with the declaratory relief sought.
Inspite of the scanty pleadings and unreliable evidence adduced by the Appellants, the Respondents put up a robust defence to the effect that the 2nd Appellant tried to expand from the portion of land given to him and even attempted to put tenants on the portion not given to him. When Respondents stopped him from expanding beyond the portion given him and even trying to put tenants there, the 2nd Appellant reported the 2nd Respondent to the Village Head and District Head. Both the village head and the District told the 2nd Appellant that he had no right over the portion of land he tried to encroach on.
I have shown earlier that there were no contradictions in the evidence of the defence witnesses.
Having failed to establish their claim, the Court below rightly dismissed it.
Issue 2 is also resolved against the Appellants and in favour of the Respondents.
Both issues having been resolved against the Appellants and in favour of the Respondents, the appeal should be dismissed.
It is dismissed by me.
Respondents are awarded N100, 000 costs which shall be paid by the Appellants.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, James Shehu Abiriyi, J.C.A.
I agree with His Lordship?s line of reasoning and the conclusion reached by him in the said leading judgment that the appeal is devoid of merit. I equally dismiss the appeal and abide by the consequential orders made in it including that of costs.
SAIDU TANKO HUSSAINI, J.C.A.: I read in advance the lead Judgment just delivered by my Lord, JAMES SHEHU ABIRIYI, JCA with whom I agree that this appeal lacks merit and ought to be dismissed, the appellants having failed to discharge the onus on them to prove their claim before the Court below. The appeal is dismissed. I also abide by the order as to cost.
Appearances:
Martin Milkman, Esq. with him, Ganki Hassan, Esq.For Appellant(s)
Z.A. Ma’aji, Esq. with him, B. A. Dauda-Kura, Esq.For Respondent(s)
