KIRADINGING v. WADATHAYEDA (2020)

KIRADINGING v. WADATHAYEDA

(2020)LCN/14123(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, April 22, 2020

CA/YL/77/19

RATIO

PROPERTY LAW PRACTICE: PROOF OF ROOT OF TITLE

It is trite that in a land dispute where a party pleads and traces his root of title to a particular person or family, for the party to succeed, he must establish how the person or family through whom he claims derived his or its title to such land. The claimant would not only plead and establish his title to the land, he must plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute simply because no one can give out what he does not have (nemodat quod non habet). If the person from whom he derived his title has a valid title to such land then he would lawfully pass on such title to anyone else. If the title of the person through whom he claims is faulted, then the claimant would have no valid title passed unto him. See, SANYAOLU VS. COKER (1983) 1 SC 168; UGO VS. OBIEKWE (1989) 1 NWLR (PT. 99) 566 and OKAFOR EGBUCHE VS. CHIEF IDIGO (1934) 11 NLR 140. In the present case, the Respondent as claimant at the trial Area Court claimed through traditional history, alleging that he inherited the land in dispute from his late father. The question is: did the Respondent as the complainant at the trial Court prove through traditional history how his father through whom he claims acquired the land in dispute? The PW1 (William Arabo) in his evidence in chief testified that he did not know the owner of the land in dispute but, that both parties were farming on the land at the same time. From a question put by the court whether he knew the land in question, the PW1 stated that he did not know the land, pages 21 – 22 of theprinted records of appeal. The PW2 (Ayuba Wadathayeda) a brother to the Respondent alleged that the land in dispute belonged to his late father, his family and that of the Appellant farmed on the land at different times and there had been local arbitration by the village head and the District head respectively who confirmed that the land belonged to the Appellant. The PW1 gave evidence that their father was born at Nzalang and was buried there when he died, not on the land in dispute even though he testified that his father had planted panila trees on the land in dispute and had ruins of their old house on the land. The witness did not know whom the Respondent left the land with when he migrated to Gashala Nzugubu. The PW3 (Hassan Adamu) only gave evidence that his father farmed on the land for a year only. It is clear that from the evidence adduced by the Respondent’s witnesses PW1 – PW3, no evidence was given as to who founded the land, how he founded it, apart from the fact that the Respondent at a time farmed it before he migrated to Gashala Nzugubu, there was no other connection as to how his late father acquired the land. On the other hand, the Appellant’s witnesses gave clearer and more concise evidence concerning the land in dispute. The DW1 (Ibrahim Mamudu) gave evidence that when the appellant was getting married he was given the land in dispute by his father and he assisted in clearing it and had farmed on the land for about fifty (50) years. He gave evidence that the Respondent’s father came from another village called Nzalang, while the Appellant’s father was the village head and had always farmed on the land family members farmed on the adjoining lands; pages 24 – 25 of the printed records of appeal. The DW2 (Umaru Jauro) also testified that the father of the Appellant farmed on the land until he gave it out to the Appellant when he was getting married, he used to help with the ploughing of the farm. It is noteworthy that the Appellant as the Defendant at the trial Court did not counter claim, the burden on the claimant (now Respondent) was therefore heavier to prove his title to the land in dispute. The then defendant (Appellant) had no duty at all to prove his title to the same land in dispute. See, GODWIN C. ONOVO & ORS VS. FERDINAND MBA & ORS (2014) LPELR – 23035 (SC) P. 73, PARAS. B – D; (2014) 14 NWLR (PT. 1427) P. 391; ADEKANBI VS. JANGBON (2007) 24 WRN 45 at 57; ELIAS VS. DISU (1962) ALL NLR (PT. 1) 214 at 220 (1962) 1 SC NLR 361 and ADEMOSUN & ANOR VS. EKUN (2017) LPELR – 43229 (CA) P. 15, PARAS. B – D. The defendant’s duty is only to defend. PER CHIDI NWAOMA UWA, J.C.A.

PROPERTY LAW PRACTICE: ESTABLISHING TITLE TO LAND

It is trite that where a party traces his title to a person he must establish how the person came to have title vested in him. See, NWADIOGBU & ORS VS. NNADOZIE & ORS (2001) LPELR – 2088 (SC) PP. 20 – 21, PARA. C, ORBIAM & ORS VS. ADAMA & ORS (2018) LPELR – 45886 (CA) P. 28, PARAS. A-B and ABEJE VS. ALADE (2011) ALL FWLR (PT. 593) 1969 at 1989.
All that the Respondent did at the trial Court was to plead that the land in dispute belongs to him, that he inherited the land from his late father and that he had farmed on it before his migration to Gashala Nzugubu. The Respondent made out that his father farmed on the land over the years but, there was no evidence led to show how his late father came about to own the land since it is in evidence that he came from a different village of Nzalang where he was buried on his demise. There was no evidence to establish the title of the Respondent’s late father therefore the Respondent’s claim cannot succeed. See, ADOLE VS. GWAR (2008) LPELR – 189 (SC) PP. 20 – 21, PARAS. E-A, ALLI VS. ALESINLOYE (2000) 4 SC NJ 264 at 282 – 283, ODOFIN VS. AYOOLA (1984) 11 SC 42; MOGAJI VS. CADBURY (1985) 2 NWLR 393 at 395 and 430 and AJANI VS. LADEPO (1986) 3 NWLR (PT. 28) 276. The Respondent not having proved the root of title of his late father through whom he claimed he cannot rely on acts of possession in proof thereof. See, CHIEF OYELAKIN BALOGUN VS. OLADOSUN AKANJI (1988)1 NWLR (PT. 70) 301, EHIMARE VS. EMHONYON (1985)1 NWLR (PT. 2) 177 at 183 and NGENE VS. IGBO & ANOR (2000) LPELR – 1987 (SC) PP. 29 – 30, PARAS. E-A. As I stated earlier in this judgment, none of the Respondent’s witnesses stated how the Respondent’s father got the land in dispute. No evidence was led to show that the Respondent’s father founded the land and how he founded it, clearing and farming on it is not enough because he could have been given virgin land to farm on by the Appellant’s father. The Respondent’s failure to establish how his father acquired the land in dispute is fatal to his case. The Respondent did not prove his claim at the trial Court to warrant the lower Court granting him title over the land in dispute. The evidence adduced by the parties at the trial Court if put side by side, there is no doubt that, the evidence of the Appellant as Defendant far outweighed that of the Respondent. There was no basis for the lower Court to have declared title in favour of the Respondent. The Respondent did not establish his claim at the trial Court. At pages 83 – 84 of the printed records of appeal, the lower Court rightly stated the position of the law as to the burden of proof where a declaration of title is sought by the plaintiff to the effect that it lies on the plaintiff and where the plaintiff fails, he is not entitled to judgment.
Further, the lower Court also found that the plaintiff in proof of his title should adduce credible, convincing and unequivocal evidence in support of his case, in this case I am of the humble view that the Respondent as complainant failed to do so. See, YUSUF VS. ADEGOKE & ANOR (2007) LPELR – 3534 (SC) P. 26, PARAS. C-F, ODOFIN VS. AYOOLA (1984) 11 SC 72 at PAGE 105 and OKORIE & ORS VS. CHIEF UDOM & ORS (1960) SC NLR 326. The lower Court also rightly held that the plaintiff must succeed on the strength of his case and not on the weakness of the defence, page 83 of the printed records of appeal and also acknowledged the position of the law that where there is no counter claim, the defendant is only to defend and nothing more. Therefore there was no basis for the lower Court to have declared title in favour of the Respondent who merely stated that he farmed on the land in dispute which he made out that he inherited from his late father without evidence to back up his late father’s title to the land in dispute. With respect to the lower Court, the lower Court knew and stated the true position of the law but failed to apply it in the present case. The Respondent’s witness PW2 also gave evidence to the effect that in the past, there had been local arbitrations by the village and the district heads who declared title in favour of the Appellant. The trial Court at pages 85 – 86 of the printed records of appeal identified the role of the Court to find out where there is conflicting evidence of tradition, which of the two is more probable. Also, that evidence of traditional history usually forms the bedrock as to how the claimant and his predecessors came upon the land and that evidence of first settlement is a method of acquiring title. At page 87 of the printed records of appeal, the lower Court was therefore wrong to have held that:
“the trial Area Court erred by its failure to properly evaluate the evidence before her. If it had properly evaluated the evidence adduced before her it would have come to a different conclusion. . . . . this is a case where this Honourable Court is bound to interfere with the perverse findings of the trial Area Court in its evaluation of the evidence adduced”. PER CHIDI NWAOMA UWA, J.C.A. (

DUTY OF COURT: DUTY OF COURT TO EVALUATE EVIDENCE BEFORE IT

“It is settled law that it is the duty of the trial Court to evaluate the evidence and to make findings of facts put together in any issue before the Court for determination in a civil case. Evidence is assessed and evaluated by holding the evidence called by both sides to the conflict on an imaginary balance and weighing them together. The result is that whichever outweighs the other ought to be accepted and acted upon. See, the case of IRIRI VS. ERHURHOBARA (1991) 2 NWLR (PT. 173) 252; BABA VS. NCATC (1991) 5 NWLR (PT. 192) 388”.
See also, AYUYA & ORS VS. YONRIN & ORS (2011) LPELR – 686 (SC) PP. 26 – 27, PARAS. D-A, AWOYALE VS. OGUNBIYI (1986) LPELR – 662 (SC) PP. 12 – 13, PARA F and MKPINANG & ORS VS. NDEM & ORS (2012) LPELR – 15536 (SC) PP. 13 – 14, PARAS. F – B.
I hold that the lower Court was wrong to have interfered with the findings of the trial Court which were not perverse. The trial Area Court properly evaluated the evidence adduced before the Court and its decision ought to stand. The sole issue as reformulated is resolved in favour of the Appellant. PER CHIDI NWAOMA UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

ISA KIRADINGING APPELANT(S)

And

BABANG WADATHAYEDA RESPONDENT(S)

RATIO

ESTABLISHING ROOT OF TITLE TO LAND

ESTABLISHING A TITLE TO LAND WHERE A PERSON TRACES HIS TITLE TO A PERSON

DUTY OF COURT TO EVALUATE EVIDENCE BEFORE IT

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Adamawa State High Court, sitting in its Appellate jurisdiction delivered by Waziri, J. on 30th July, 2018 in which the Appeal was allowed. The Appellant at the lower Court is the Respondent herein, while the Respondent at the lower court is the Appellant herein.

The background facts are that the matter originated from Gaya Area Court of Adamawa State (hereafter referred to as the trial Court) where the Respondent as complainant instituted a civil claim for a declaration of title in respect of the disputed farmland, claiming that the farmland belonged to his father which he inherited on his demise. It was alleged that upon his migration to Gashala Nzugubu, the Appellant started farming on the land, on his return, he asked the Appellant to surrender the land to him, the Appellant refused and made out that his father gave the land to the Respondent’s father to live and cultivate on. The Respondent instituted the action to claim the farmland from the Appellant.

At the trial, the Respondent called three witnesses (PW1 –

PW3) while the Appellant called two witnesses. At the trial, the Court visited the disputed farmland where it elicited further evidence from the parties. In its judgment delivered on 18/5/17, title was declared in favour of the Appellant. The Respondent appealed to the lower Court that subsequently set aside the judgment of the trial Court and declared title in favour of the Respondent hence this appeal.

The Appellant formulated the following two issues for the determination of the appeal thus:
1. “Whether the lower Court, sitting in its appellate jurisdiction correctly allowed the appeal, set aside the judgment of the trial Court and declared title over the land to the Respondent. (Distilled from ground 1 (one) of the Appellant’s Grounds of Appeal).
2. Whether the lower Court was right when it embarked upon evaluation of the evidence, which had been properly evaluated by the trial Area Court.” Distilled from ground 2 (two) of the Appellant’s Grounds of Appeal.

The Respondent on their part adopted the two issues formulated by the Appellant in response.

In arguing the appeal, the learned counsel to the

Appellant Salihu Adamu Esq. adopted and relied on his brief of argument filed on 12/7/19 deemed properly filed on 9/10/19 as his argument in this appeal in urging us to set aside the decision of the lower Court and affirm the decision of the trial Court. In arguing his issue one, it was submitted that the trial Court was right to have dismissed the claim of the plaintiff (herein Respondent), having failed to establish title to the land in dispute to warrant the trial Court granting the reliefs sought. It was submitted that the lower Court failed to properly evaluate the evidence adduced by the Appellant’s (as defendant) witnesses who testified that the land was first cleared by the defendant (Appellant herein) who had been farming on the land for about fifty (50) years. It was argued that from the records of Court, the plaintiff’s (now Respondent) witnesses at the trial did not prove the traditional history of how the Respondent or his father acquired the land in dispute. It was submitted that the learned counsel to the Respondent had argued that the Respondent’s father cleared the forest that became a farmland, it was submitted that this

information was from the question put to the PW2 by the trial Court under cross examination and was not part of the Respondent’s evidence.

Further, that where traditional history is relied upon to prove title, the plaintiff must plead and establish the following facts:
(i) Who founded the land
(ii) How he founded it.
(iii) The particulars of the intervening owners through whom he claims down to him.
See, ANYAFULU VS. MEKA (2014) VOL. 57 (PT.) NSC QLR 190, OWOADE VS. OMITOLA (1988) 1 NWLR (PT. 77) 413 at 413. It was submitted that the decision of the lower Court is not supported by evidence but, rather on speculations, which must therefore be set aside. See, ADEWOLE VS. ATT. GEN. & C.J. ONDO STATE (2015) ALL FWLR (PT. 766) 405. It was submitted that it is not the function of the lower Court to have substituted its views on facts for those of the trial Court where the trial Court had evaluated evidence and ascribed probative value to such evidence having seen, heard and assessed the witnesses. See, AKINYELE VS. BADAGRY LOCAL GOVERNMENT (2015) ALL FWLR (PT. 764) at PAGE 112.

In arguing his issue two, it was submitted that

the trial Court properly evaluated the evidence of the parties before arriving at its decision and no miscarriage of justice was occasioned for the lower Court to have embarked on re-evaluating the evidence. See, OJO VS. OYEREYIN (2015) ALL FWLR (PT. 785) at PAGE 25 and EBBA VS. OGODO (1984) 1 SC NLR 372.

In response, the learned counsel to the Respondent Augustine Sambo Esq. relied on his brief of argument filed on 8/11/19 as his argument in this appeal in urging us to affirm the judgment of the High Court with costs against the Appellant. In arguing the first issue, it was submitted that at the trial Court, the Respondent pleaded traditional history to the effect that the parcel of land in dispute was originally that of his father, which he founded. See, OHIAERI VS. AKABEZE (1992) 2 NWLR (PT. 221) PAGE 5. It was submitted that at the visit to locus in quo at the trial Court, the Respondent claimed that the portion in dispute was given to his father and that after his father’s demise, the Respondent and his brothers continued to farm on the land. It was the contention of the Respondent that his father first settled on the land in dispute which he

also inherited from his father. The learned counsel to the Respondent made out that it was not clear whether the land was given to the Respondent’s father on pledge or a gift. It was submitted that the issue of gift or pledge was not properly ventilated as the parties were not represented by counsel at the trial.

It was argued that where a Defendant makes out that a plaintiff was in possession of the land in dispute on the basis of a pledge, the onus is on the said defendant to prove the pledge. See, EBEVUHE VS. UKPAKARA (1996) 7 NWLR (PT. 460) PAGE 254 and ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) PAGE 799. Further, that the lower Court rightly held that without a successful counter claim the trial Court ought not to have declared title in favour of the Appellant. See, ABISI VS. EKWEALOR (1993) 6 NWLR (PT. 302) PAGE 643. It was submitted that the evidence of the Respondent at the trial Court was more probable that he inherited the land from his father and was not informed that the land was on pledge, redeemable on his demise as opposed to the evidence of the Appellant. Further, that questions put to witnesses by a judge and answers thereto

form part of the evidence before the Court. See,OTEJU VS. OLUGUNA (1992) 8 NWLR (PT. 262) PAGE 767. We were urged to discountenance the submission of the learned counsel to the Appellant that questions put to the PW2 during cross examination do not form part of the evidence of the Court. It was submitted once again that the lower Court was right to have declared title of the disputed land to the Respondent.

In arguing issue two, it was submitted that it is the duty of the trial court to adequately evaluate evidence and make appropriate findings of facts in respect of all the issues arising and material to the determination of a case. See, T.A. O. WILSON VS. A.B. OSHIN (2000) 2 SCN QLR (1215) at 1240, A.R. MOGAJI & ORS VS. MADAM RABIATU ODOFIN (1978) 4 SC PAGE 91 at 93 and ADESOJI AREGBESOLA VS. OLAGUNSOYE OYINLOLA (2011) 9 NWLR (PT. 253) PAGE 458 at 480. It was submitted that the lower Court had the power to evaluate the evidence adduced at the trial Court. See, LORAKPEN BEGHA VS. MKEMTRA (2000) 4 NWLR (PT. 652) PAGE 193 at 211 – 217 and ANYAFULU VS. MEKA (2014) VOL. 57 (PT. 1) NSCQLR PAGE 190. It was argued that both parties claimed title by

traditional history and that the claim of the Respondent was more probable which made the lower Court re-evaluate the evidence adduced at the trial and declared title in favour of the Respondent.

Further, that the evidence of the Appellant’s witnesses contradicted that of the Appellant while the appellant’s witnesses testified that the Appellant had been farming on the land in dispute for about fifty (50) years, the Appellant testified that the portion claimed by the Respondent was given to the Respondent’s father who later migrated to Gashala Nzugubu and on his return the Respondent returned to the land. It was argued that the onus was on the Appellant to prove that the land was on pledge to the Respondent’s father. Also, that the appellant did not counter claim and title ought not to have been declared in his favour by the trial Court. It was re-argued that questions put to a witness at the trial form part of the records of Court. See, OTEJU VS. OLUGUNA (1992) 8 NWLR (PT. 262) PAGE 766 – 767 PARAS. H – H. It was concluded that the lower Court was right to have re-evaluated the evidence adduced at the trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I have examined the two issues formulated by the Appellant for the determination of the appeal which were adopted by the Respondent. I would recouch the two issues into a sole issue thus:
Whether the lower Court sitting in its appellate jurisdiction was right to have allowed the appeal and declared title of the land in dispute to the Respondent herein upon re-evaluation of the evidence adduced at the trial Area Court?

no valid title passed unto him. See, SANYAOLU VS. COKER (1983) 1 SC 168; UGO VS. OBIEKWE (1989) 1 NWLR (PT. 99) 566 and OKAFOR EGBUCHE VS. CHIEF IDIGO (1934) 11 NLR 140. In the present case, the Respondent as claimant at the trial Area Court claimed through traditional history, alleging that he inherited the land in dispute from his late father. The question is: did the Respondent as the complainant at the trial Court prove through traditional history how his father through whom he claims acquired the land in dispute? The PW1 (William Arabo) in his evidence in chief testified that he did not know the owner of the land in dispute but, that both parties were farming on the land at the same time. From a question put by the court whether he knew the land in question, the PW1 stated that he did not know the land, pages 21 – 22 of theprinted records of appeal.

The PW2 (Ayuba Wadathayeda) a brother to the Respondent alleged that the land in dispute belonged to his late father, his family and that of the Appellant farmed on the land at different times and there had been local arbitration by the village head and the District head respectively who confirmed

that the land belonged to the Appellant. The PW1 gave evidence that their father was born at Nzalang and was buried there when he died, not on the land in dispute even though he testified that his father had planted panila trees on the land in dispute and had ruins of their old house on the land. The witness did not know whom the Respondent left the land with when he migrated to Gashala Nzugubu. The PW3 (Hassan Adamu) only gave evidence that his father farmed on the land for a year only. It is clear that from the evidence adduced by the Respondent’s witnesses PW1 – PW3, no evidence was given as to who founded the land, how he founded it, apart from the fact that the Respondent at a time farmed it before he migrated to Gashala Nzugubu, there was no other connection as to how his late father acquired the land. On the other hand, the Appellant’s witnesses gave clearer and more concise evidence concerning the land in dispute. The DW1 (Ibrahim Mamudu) gave evidence that when the appellant was getting married he was given the land in dispute by his father and he assisted in clearing it and had farmed on the land for about fifty (50) years. He gave

evidence that the Respondent’s father came from another village called Nzalang, while the Appellant’s father was the village head and had always farmed on the land family members farmed on the adjoining lands; pages 24 – 25 of the printed records of appeal. The DW2 (Umaru Jauro) also testified that the father of the Appellant farmed on the land until he gave it out to the Appellant when he was getting married, he used to help with the ploughing of the farm.

It is noteworthy that the Appellant as the Defendant at the trial Court did not counter claim, the burden on the claimant (now Respondent) was therefore heavier to prove his title to the land in dispute. The then defendant (Appellant) had no duty at all to prove his title to the same land in dispute. See, GODWIN C. ONOVO & ORS VS. FERDINAND MBA & ORS (2014) LPELR – 23035 (SC) P. 73, PARAS. B – D; (2014) 14 NWLR (PT. 1427) P. 391; ADEKANBI VS. JANGBON (2007) 24 WRN 45 at 57; ELIAS VS. DISU (1962) ALL NLR (PT. 1) 214 at 220 (1962) 1 SC NLR 361 and ADEMOSUN & ANOR VS. EKUN (2017) LPELR – 43229 (CA) P. 15, PARAS. B – D. The defendant’s duty is only

to defend.

Further, on the evidence at the trial Court’s visit to the locus in quo, from questions put to the Respondent’s witness DW2 in respect of the ownership of the adjoining lands to the land in dispute, the DW2 did not know those that owned the adjoining pieces of land whereas the Appellant testified that he and members of his clan owned the adjoining farms and gave the portion now in dispute to the Respondent’s father to farm on before he left it and migrated to Gashala Nzugubu. At pages 27 – 28, the trial Court put the question thus:
COURT TO COMPLAINANT: Who is the owner of the farmland beside that of the defendant?
ANSWER: I don’t know.
COURT TO DEFENDANT: Who is the owner of the farmland beside the one you are claiming?
ANSWER: It belongs to our clan and it was given to one Bitrus from Uvu by my father up to the stream and some women from Gashala Mamudu, equally also at the Western side it belongs to our clan and it is the wives of our children and some of my elders that are farming there and the other portion shown by the complainant it was given to his father and after the death of his father

the complainant and his brother continue to farm there and later they migrated to Gashala Nzugubu then our family took over the land for over 35 years it is members of our family that are farming there and now he came back to claim the land saying that the farmland belongs to his father.

From the above evidence given by the Appellant at the locus in quo, it is clear that the Appellant’s father gave the portion of land in dispute to the Respondent’s father to farm on, which he later abandoned and migrated to Gashala Nzugubu and the Appellant’s family took their farm land back and made use of same over the years. The Appellant’s father gave him that particular portion when he got married. The Appellant’s family also farmed the adjoining portions of land. In summary of his case at the trial Court, the Respondent simply stated that the disputed land belongs to his late father and that he had been farming on the land after his father’s death. The respondent said nothing about how his father acquired the land and from whom his father acquired the land having come from a different clan and community Nzalang where he was buried

when he died while the land in dispute is in a different clan of Babau where the Appellant’s father was the village head.

On the other hand the Appellant in summarizing his case at pages 28 – 29 of the records of appeal stated thus:
“The land we are disputing on belongs to me because it was given to me by my father. That the father of complainant came from Nzalang and it was my father who gave him the land to farm on it. That after the death of the complainant’s father, then complainant continue to farm on the land and later they migrated to Gashala Nzugubu. That the whole land in dispute belongs to our clan call Boliva clan. When Wadatheyada dies he was taken back to his village call Nzalang and it was there that he was buried. That after the complainant has migrated to Gashala Nzugubu members of our family continue to farm on the land for over 35 years and it is only now that he came back to claim the land given to his father, if the complainant won’t let him sue Usman Sajo and Usan Kirchiding they are the Head of our family because in (sic) the youngest in the family.”

From the above, it is clear that the

Appellant’s father gave the Respondent’s father the land to farm on. When the Respondent’s father died he was buried at his village Nzalang. The Respondent farmed on the land for a while before migrating to Gashala Nzugubu while the Appellant’s family took over the land which was later given to the Appellant. The Appellant’s family continued to farm on the land for over 35years until the Respondent returned to claim the land. At pages 31 – 32 of the printed records of appeal the trial Court accurately reviewed the evidence of the witnesses on both sides and the evidence of the parties at the visit to locus in quo. After considering the evidence on both sides the trial court held thus:
“…it is prove (sic) that the land claim by the complainant was given to his father by the defendant father because after the death of the complainant’s father he was taken back to his place of origin where he was buried also PW1 told the Court that he don’t know the actual owner of the said farmland and PW2 also told the Court that he don’t know whom was the land intrusted (sic) to became he was in the Army and

he was not around when the defendant requested for the land from the complainant to farm on it. Both the eastern side and the western side belong to the family of the defendant and they are the one using the farm land and also the father of the defendant was the village head of Babau were the land in dispute is.”

The above finding of the trial Court cannot be faulted. From the evidence adduced at the trial Court the land in dispute was given to the Respondent’s father to farm on by the father of the Appellant. When the Appellant’s father died he was buried in his village not on the land in dispute, after which the Respondent abandoned the land and migrated to Gashala Nzugubu. While the Appellant’s family continued farming on the land in dispute for over thirty five (35) years before the Respondent returned to claim the land. The Respondent as complainant failed to establish his title over the land in dispute. The witnesses called by the Respondent PW1 – PW3 did not help matters. These witnesses did not know much about the land. The PW1 did not know the land in dispute, therefore he was not in a position to give any useful

evidence in respect of the Respondent’s title, the PW2 was in the Army and did not know who farmed on the land, the PW3 only stated that his father farmed on the land in dispute for a year and left. None of the three witnesses that testified on behalf of the Respondent gave evidence as to how the Respondent’s father got to the land in dispute.

The learned counsel to the Respondent had submitted that what was not clear at the trial Court was whether the land in dispute was an outright gift or pledge to the father of the Respondent. By this argument, it is acknowledged by the Respondent’s learned counsel that the Respondent’s late father acquired the land in dispute from the late father of the Appellant who was the Babau village head. Since the Respondent claimed title, the onus was on him to prove whether the land in dispute was out rightly given to him or pledged and unredeemed by the Appellant’s late father. The learned counsel to the Respondent erroneously argued that the Appellant should have proved that the land in dispute was pledged to the Respondent’s father. It was not the duty of the Appellant to prove any

pledge, he did not allege any pledge and did not counter claim. The Respondent who failed to prove how his late father got to the land, failed to discharge the onus on him to have proved the title of his father through whom he claimed.

Respondent’s late father therefore the Respondent’s claim cannot succeed. See, ADOLE VS. GWAR (2008) LPELR – 189 (SC) PP. 20 – 21, PARAS. E-A, ALLI VS. ALESINLOYE (2000) 4 SC NJ 264 at 282 – 283, ODOFIN VS. AYOOLA (1984) 11 SC 42; MOGAJI VS. CADBURY (1985) 2 NWLR 393 at 395 and 430 and AJANI VS. LADEPO (1986) 3 NWLR (PT. 28) 276. The Respondent not having proved the root of title of his late father through whom he claimed he cannot rely on acts of possession in proof thereof. See, CHIEF OYELAKIN BALOGUN VS. OLADOSUN AKANJI (1988)1 NWLR (PT. 70) 301, EHIMARE VS. EMHONYON (1985)1 NWLR (PT. 2) 177 at 183 and NGENE VS. IGBO & ANOR (2000) LPELR – 1987 (SC) PP. 29 – 30, PARAS. E-A. As I stated earlier in this judgment, none of the Respondent’s witnesses stated how the Respondent’s father got the land in dispute. No evidence was led to show that the Respondent’s father founded the land and how he founded it, clearing and farming on it is not enough because he could have been given virgin land to farm on by the Appellant’s father. The Respondent’s failure to establish how his father acquired

the land in dispute is fatal to his case. The Respondent did not prove his claim at the trial Court to warrant the lower Court granting him title over the land in dispute. The evidence adduced by the parties at the trial Court if put side by side, there is no doubt that, the evidence of the Appellant as Defendant far outweighed that of the Respondent. There was no basis for the lower Court to have declared title in favour of the Respondent. The Respondent did not establish his claim at the trial Court. At pages 83 – 84 of the printed records of appeal, the lower Court rightly stated the position of the law as to the burden of proof where a declaration of title is sought by the plaintiff to the effect that it lies on the plaintiff and where the plaintiff fails, he is not entitled to judgment.
Further, the lower Court also found that the plaintiff in proof of his title should adduce credible, convincing and unequivocal evidence in support of his case, in this case I am of the humble view that the Respondent as complainant failed to do so. See, YUSUF VS. ADEGOKE & ANOR (2007) LPELR – 3534 (SC) P. 26, PARAS. C-F, ODOFIN VS. AYOOLA (1984) 11 SC

72 at PAGE 105 and OKORIE & ORS VS. CHIEF UDOM & ORS (1960) SC NLR 326. The lower Court also rightly held that the plaintiff must succeed on the strength of his case and not on the weakness of the defence, page 83 of the printed records of appeal and also acknowledged the position of the law that where there is no counter claim, the defendant is only to defend and nothing more. Therefore there was no basis for the lower Court to have declared title in favour of the Respondent who merely stated that he farmed on the land in dispute which he made out that he inherited from his late father without evidence to back up his late father’s title to the land in dispute. With respect to the lower Court, the lower Court knew and stated the true position of the law but failed to apply it in the present case. The Respondent’s witness PW2 also gave evidence to the effect that in the past, there had been local arbitrations by the village and the district heads who declared title in favour of the Appellant.

The trial Court at pages 85 – 86 of the printed records of appeal identified the role of the Court to find out where there is conflicting

evidence of tradition, which of the two is more probable. Also, that evidence of traditional history usually forms the bedrock as to how the claimant and his predecessors came upon the land and that evidence of first settlement is a method of acquiring title. At page 87 of the printed records of appeal, the lower Court was therefore wrong to have held that:
“the trial Area Court erred by its failure to properly evaluate the evidence before her. If it had properly evaluated the evidence adduced before her it would have come to a different conclusion. . . . . this is a case where this Honourable Court is bound to interfere with the perverse findings of the trial Area Court in its evaluation of the evidence adduced”.

I am of the humble but, firm view that the lower Court was wrong to have held the above view. On the other hand, the trial Court properly evaluated the evidence adduced at the trial Court; having also seen and heard the witnesses was in a better position to evaluate the evidence put forward by the parties and rightly did so. The lower Court had no basis to have interfered with the findings of the trial Area Court, which was not

perverse. A perverse decision simply means persistent error different from what is reasonable or required, against the weight of evidence, where a trial judge took into account matters which ought not to have been taken into account or where the judge shuts his eyes to the obvious. The evaluation done by the trial Court cannot be rightly said to have come under these categories of decision of perverseness. See, ATOLAGBE VS. SHORUN (1985) LPELR – 592 (SC) P. 31, PARAS. C-D; (1985) 1 NWLR (PT. 2) P.360. In the case of MBINA & ORS VS. ENYA & ORS (2017) LPELR – 43532 (CA) PP. 14 – 15, PARAS. F-B in this Court, his lordship, Adah, JCA in line with the stated position of the Apex Court in respect of the trial Courts’ duty to evaluate evidence held thus:
“It is settled law that it is the duty of the trial Court to evaluate the evidence and to make findings of facts put together in any issue before the Court for determination in a civil case. Evidence is assessed and evaluated by holding the evidence called by both sides to the conflict on an imaginary balance and weighing them together. The result is that whichever

outweighs the other ought to be accepted and acted upon. See, the case of IRIRI VS. ERHURHOBARA (1991) 2 NWLR (PT. 173) 252; BABA VS. NCATC (1991) 5 NWLR (PT. 192) 388”.
See also, AYUYA & ORS VS. YONRIN & ORS (2011) LPELR – 686 (SC) PP. 26 – 27, PARAS. D-A, AWOYALE VS. OGUNBIYI (1986) LPELR – 662 (SC) PP. 12 – 13, PARA F and MKPINANG & ORS VS. NDEM & ORS (2012) LPELR – 15536 (SC) PP. 13 – 14, PARAS. F – B.
I hold that the lower Court was wrong to have interfered with the findings of the trial Court which were not perverse. The trial Area Court properly evaluated the evidence adduced before the Court and its decision ought to stand. The sole issue as reformulated is resolved in favour of the Appellant.

In sum, I hold that the Respondent as the complainant failed to prove his claim before the trial Area Court therefore, the lower Court ought not to have reversed its decision. The appeal is meritorious and it is hereby allowed. In consequence the claim of the Respondent at the trial Area Court stands dismissed not having been proved.
I award costs of N50,000.00 (Fifty Thousand

Naira) against the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA. I agree entirely with my learned brother that the appeal lacks merit and should be dismissed.

My learned brother has dealt exhaustively with the issue for determination.
For the reasons contained in the lead judgment which I adopt as mine, I too dismiss the appeal.
I abide by all other orders in the lead judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Salihu Adamu, Esq. For Appellant(s)

Augustine Sambo, Esq. For Respondent(s)