KUVA & ANOR v. WANSA & ANOR
(2022)LCN/16956(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, June 08, 2022
CA/YL/91/2020
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
1. ALBERT KUVA 2. FIDELIS SONVA KUVA APPELANT(S)
And
1. JAURO WANSA 2. IBRAHIM NYAMU (Suing For Themselves And On Behalf Of Badong Family) RESPONDENT(S)
RATIO
THE POSITION OF LAW REGARDING THE DETERMINATION OF CIVIL SUITS IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The law regarding the determination of civil suits is clear and to the effect that a party who is desirous of getting an order or relief from a Court of law has the duty of proving the existence of facts which establishes his entitlement to the grant of that order or relief. The foregoing is what is referred to as burden of proof in the law of evidence. See: UNION BANK v. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC); and ADIGHIJE V. NWAOGU & ORS (2010) LPELR-4941(CA).
Particularly with regards to declaration of title to land, which has at its core the extinguishing of rights which may hold a lot of sentimental value in addition to vast economic significance to persons vying for same, the law is settled that a party seeking declaration for title to land must prove that he is entitled to such grant by adducing cogent and reliable evidence in support of his claim, particularly as to the root of his title. He must rely on the strength of his own case and not on the weakness of the defendant’s case to succeed. This Court in the case of IKE & ANOR v. ANUDIKE & ORS (2018) LPELR-45085(CA) Per ABIRIYI, J.C.A. (Pp. 24-25, Paras. D-B), succinctly stated the general principle applicable to declarative reliefs thus:
“The law is settled that 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 plaintiff or person seeking the declaratory relief. It is the practice that 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 plaintiff must plead and prove his claims 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 SC, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 at 707 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184 CA page 25-26.”
See: KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR-1703(SC); OLATOMIDE & ANOR v. IKUMUYILO & ORS (2019) LPELR-48374(CA); and OLATUNJI & ORS v. AYENI (2019) LPELR-48495(CA).
The Supreme Court in the case of ONOVO & ORS v. MBA & ORS (2014) LPELR-23035(SC), (P. 27, paras. A-E) per OGUNBIYI, J.S.C. reiterated the foregoing in relation to declaration of title to land thus:
“The law is also settled that in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence they are entitled to the declaration sought.’’ PER TUKUR, J.C.A.
METHODS OF PROVING TITLE OF OWNERSHIP TO LAND
The five methods of proving title to land was authoritatively laid down by the Supreme Court in the case of Idundun v. Okumagba and restated by the Supreme Court in the case of DAKOLO & ORS. v. REWANE-DAKOLO & ORS. (2011) LPELR-915(SC) per RHODES-VIVOUR, J.S.C. (Pp. 23-24, paras. F-D) thus:
“There are five ways in which ownership/title to land may be proved. They are: 1. Proof of traditional evidence; 2. Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilising the land beneficially such acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he is the true owner; 3. Proof by production of document of title which must be authenticated; 4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done; 5. Proof of possession of connected or adjacent land, circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may rank also as means of proving ownership of the land in dispute. See: Amajideogu v Ononaku (1988) 2 NWLR pt.78 p.616 Piaro v Tenalo 1976 12 SC p31 Idundun v. Okumagba (1976) 9-10 SC p224 Omoregie v. Idugiemwanye (1985) 2 NWLR Pt.5 p.41” PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Taraba State in SUIT NO: TRSJ/90/16 delivered on 8th June, 2020 by Honourable Justice A.B. Abbare, wherein the Court gave judgment in favour of the Respondents.
The material facts of the case leading to this appeal is that the Respondents as Representatives of the Badong family instituted an action before the lower Court via a writ of summons filed on 19th July, 2016, by which they sought the following:
1. A declaration that the Plaintiffs are entitled to the customary right of occupancy over all that vast land lying and situate at Dibadong Jimlari village, Lau Local Government Area, Taraba State.
2. A declaration that the Defendants are trespassers over the Plaintiffs’ land.
3. An order of injunction restraining the Defendants, by themselves, their servants, workmen agents or otherwise howsoever from further interfering with the Plaintiffs’ ownership of the land.
4. The sum of five million naira against the Defendants as general damages for trespass
5. The cost of filing and prosecuting this suit.
Relevant processes were exchanged, with the Appellants filing statement of defence dated 9th November, 2016 and accompanying processes. Contained in the statement of defence is a counter-claim, via which the Appellants as counter claimants sought:
1. A declaration of title over all that parcel of land situate and lying west of Jimlari village in Lau Local Government Area of Taraba State and bounded to the East by Daband Azumi and Alh. Hadi’s land to the West by Wakli Janwe/Nyashakwa ward/settlement to the North by a footpath which separate their land from Wakili Ame’s land and to the South West by a stream.
2. A perpetual injunction restraining the plaintiffs/defendants and their heirs, agents, assigns, workmen and whosoever claiming through them from further trespass on the defendants’ land.
3. An order of this honourable Court compelling the plaintiffs/defendants to remove any object introduced on the land which do not constitute the natural part of the land.
4. The sum of Six Hundred Thousand Naira (N600,000.00) only being general damages for trespass.
5. The cost of prosecuting this suit.
6. And for such further order or other orders the honourable Court may deem fit to make in the circumstances to meet the justice of this case.
The matter subsequently devolved into a full trial, and after trial had been concluded, in a judgment delivered on 8th June, 2020, the trial Judge held that the Respondents’ evidence was weightier than that of the Appellants, gave judgment in favour of the Respondents and granted their first three prayers. The lower Court further dismissed the Appellants’ counterclaim.
Dissatisfied, the Appellants appealed the judgment via Notice of Appeal dated and filed on 29th July, 2020, with five grounds of appeal.
The Appellants’ Brief of Argument is dated 24th September, 2020, and filed on 25th September, 2020. Appellants’ Reply Brief is dated and filed on 25th November, 2020.
Appellants’ counsel formulated three issues for determination to wit:
1. Whether having regard to the evidence led by both parties at the trial of this case, the learned trial Judge was right by granting title of the land in dispute to the Respondents/Plaintiffs based on ‘’act of long possession and ownership’’ when their root of title was predicated on traditional history as pleaded. (Ground 1)
2. Whether the trial Court was right by holding that the Defendants failed to prove their counter-claim for title to the said parcel of land before dismissing their claim in toto (Grounds 3 & 4)
3. Whether having regard to the totality of the evidence adduced by the parties, the judgment of the trial Court can be justified (Grounds 2 & 5)
The Respondents’ Brief of Argument is dated 23rd October, 2020. Respondents’ counsel distilled a sole issue for determination thus:
Whether going by the circumstances of this case and the evidence on record the judgment of the trial Court declaring title in respect of the disputed land in favour of the Respondents but dismissing the counter-claim of the Appellants was not right? (Grounds 1,2,3,4 and 5)
A calm examination of the issues as presented by counsel on both sides to this appeal reveal that they are substantially the same and adequately capture the controversy in this appeal. I adopt the Respondents` issue for the purpose of convenience in the determination of this appeal.
WHETHER GOING BY THE CIRCUMSTANCES OF THIS CASE AND THE EVIDENCE ON RECORD THE JUDGMENT OF THE TRIAL COURT DECLARING TITLE IN RESPECT OF THE DISPUTED LAND IN FAVOUR OF THE RESPONDENTS BUT DISMISSING THE COUNTER-CLAIM OF THE APPELLANTS WAS NOT RIGHT? (GROUNDS 1,2,3,4 AND 5)
Learned counsel for the Appellants argued that the learned trial Judge was wrong to have granted title to the Respondents predicated on long possession and ownership when by their pleadings and evidence they relied on traditional history to prove title to the land, in line with the settled principle of law to the effect that where a Plaintiff in an action for declaration of title relies on traditional history and also acts of possession and ownership predicated on the traditional history as was done by the Respondents herein, such Plaintiff is not entitled to declaration of title based on acts of ownership where the evidence of traditional history fails. He submitted that both parties at trial traced their root of title by inheritance thus the learned trial Judge’s reliance on acts of long possession and ownership to grant title to the Respondents was wrong and occasioned a miscarriage of justice.
He relied on: Idundun v. Okumagba (1976) 9-10 SC 227; Usung v. Nyong (2010) 2 NWLR Pt 1177; Ezukwu v. Ukachukwu (2004) 7 SCNJ at pp 208-209; Ogungbemi v. Asawu (1986) 3 NWLR 3 (Pt.27) p.161 at 162 Ratio 6; and Nwokorobia v. Nwogu (2009) 10 NWLR (Pt.1150) P.553 at 573.
Learned counsel further argued that the Appellants adduced reasons and evidence at trial explaining why the Respondents were in possession of the land thereby successfully contradicting Respondents’ evidence, which was an agreement under which the parties exchanged land, and the selling of the land at Bayero by the Respondents in 2015 thereby dispossessing the Appellants was the ground upon which the Appellants demanded for their land in dispute.
Counsel submitted that the Respondents failed to establish their root of title to Badong their Grandfather as the founder of the land, as they gave contradictory evidence at trial, such as the testimony of PW4 the grandson of Badong under cross-examination, which contradicted the evidence of PW1, PW2, PW3, PW5 and PW4 himself, in that he testified under cross-examination that contrary to the contents of their depositions on oath, which alleged that Badong first founded and deforested the land in dispute, it was one Mala, his grandfather and Badong’s father that first founded the land at Bayero ward and later migrated to Jimlari to the land in dispute, while Badong inherited the land from Mala, amongst other instances.
He referred to the cases of Ogunjemila v. Ajibade (2010) II NWLR (Pt.1206) pg 559 at 582 paras E-F; and Ogunbiyi v. Ogundipe (1992) 9 NWLR (Pt. 263) P.24 at 40 paras F-H.
Learned counsel argued that the Appellants at trial successfully pleaded and traced their title to Debang Kekang, through inheritance from their parents and Kekang’s title was by a grant made by the Village Head of Jimlari more than a hundred years ago in accordance with the custom and tradition during that era with regards to land acquisition, by uncontroverted testimony of their Witnesses particularly that of the DW1.
He relied on: Sections 135 and 136 of the Evidence Act 2011; Balogun v. Yusuf (2010) 9 NWLR Pt.1200 pg 515 at 537 paras F-G, page 542, paras C-D; Egom v. Eno (2008) 11 NWLR (Pt.1098) p.320 paras C-D; Oko v. Okenwa (2010) 3 NWLR Pt1181, p.406 at 421 paras A-E; and Ogunleye v. Jaiyeoba (2011) 9 NWLR Pt.1252 P.339 at 351-352 paras H-A.
Counsel submitted that the Appellants also proved their entitlement to the land in dispute by Exhibit A (and Exhibit AII the English translation of Exhibit A) which contains the decision of DW3, the District Head of Apawa and his council with jurisdiction over Jimlari Village, where the land in dispute is located which confirmed title on the Appellants after both parties had submitted voluntarily to customary arbitration. Counsel posited that the learned trial Judge ought to have given probative value to the decision of the customary arbitration, which was uncontroverted by the Respondents at trial and in compliance with the principle that where parties consensually submitted themselves to customary arbitration for the resolution of their dispute and the verdict of the arbitration was acceptable to the parties, it would no longer be open to either of the parties to resile from the decision.
He relied on Section 169 of the Evidence Act, 2011; and Benjamin v. Kalio (SC) (2018) 15 NWLR Pt.1641 at 54, paras B-D.
Counsel asserted that the learned trial Judge erred in law by introducing the novel issue of ‘’gift of land inter-vivos’’ which he held that the Appellants failed to establish, as such gift was never in the contemplation of the parties to the case, whose case was predicated on grant of the land to their forbear.
He referred to the case of Adetoye v. FIIR Oshodi (2011) 14 NWLR Pt.1267 at pages 379-380 paras F-A)
Counsel submitted that the lower Court failed to properly evaluate the evidence as presented by the parties before it and make specific findings of facts on pertinent issues that arose during the course of trial, particularly those that arose from the Appellants’ counter-claim, an omission which resulted in miscarriage of justice.
He relied on a number of authorities including: Karibo v. Grend (1992) 3 NWLR Pt.230 page 426 at 440 paras C-D; Hani Akar Ent Ltd v. I.N.M.B Ltd (2011) I NWLR (Pt1228) p.302 at 319-320 paras E-B; and Chukwu v. Amadi (2009) 3 NWLR Pt.1127 P.56 at pages 91-92 paras A-E.
On the other hand, learned counsel for the Respondents argued that a Plaintiff who seeks for declaration of title to land is at liberty to plead or prove more than one method to establish his own root of title to the land he claims and that the Respondents at trial did not pick only traditional history, but also pleaded and/or proved various unchallenged acts of ownership and possession.
He relied on: Essien v. Ekanem (2010) ALL FWLR (Pt.523) 1992 at 1998 R.7; Akulaku v. Yongo (2002) 4 MJSC 137 at 158 C-D, R.4; and Balogun v. Akanji (2005) All FWLR (2005) (Pt.262) 405.
Learned counsel submitted that the Respondents had met the standard of proof of title by traditional history by testimony to the effect that it was the Respondents’ grandfather: Badong who founded the land and deforested it along with his 2 brothers, Mading and Vusoko, from whom the Respondents inherited the land. He pointed out that the area within which the disputed land is situate, that is Dibadong, is named after their grandfather Badong which connotes that the area belongs to Badong and/or his family, and the disputed land has been in the possession of the Badong family from its founding till date. Counsel argued that there was no material contradiction as to the founder of the land in dispute, as made out by the Respondents at trial, and even if there was, the true test of the veracity of the Respondents’ claim ought to be acts of possession and ownership, which the learned trial Judge rightly applied.
He relied on: Anyafulu v. Meka (2014) All FWLR (Pt.731) 1510 at 1523 H-B R.1; and Dada v. Bankole (2008) 5 NWLR (Pt.1079) P.26 at 51G.
Learned counsel also argued that the testimonies of all the Appellants’ Witnesses at trial, all supported the Respondents’ position that the Respondents are grandsons of Badong, that the land in dispute is situate at Dibadong, that Dibadong is the name of a Ward in Jimlari Village, that the 1st Respondent is the current Ward head of Dibadong through inheritance and that it was only in 2015 that the Appellants came to claim ownership of the land in dispute.
Counsel submitted that the Appellants’ explanation for the naming of Diabong after Badong ought to be jettisoned as the Appellants contradicted themselves by stating that Badong died ten years before the creation of the ward, while also stating that he was only made ward head on account of his being the oldest man as at the time the ward was named. He also submitted that the Appellants failed to substantiate their assertion that the Respondents were only on the land based on mutual agreement of the parties.
Counsel argued that the Appellants had the burden of proving that the Respondents were not the owners of the land by virtue of Section 142 of the Evidence Act, 2011, as the Respondents were in possession of the land; and that the Appellants as counter-claimants at trial failed to prove their counter-claim, as the Appellants pleaded two different and conflicting modes of acquisition of the land in dispute, by first tracing their root of title by grant/allocation of the land to their grandfather, before making a u-turn and tracing their root of title by way of deforestation of the disputed land as a virgin land by their grandfather. Counsel further argued that assuming the land was actually granted to the Appellants’ grandfather, the Appellants failed to show whether the Village Head of Jimlarim Ardido Nyamu, who allegedly granted the land to the Appellants’ grandfather had the authority to make such grant.
He relied on Sections 131 (1) and (2), 132 and 133 of the Evidence Act 2011; Anwoyi v. Shodeke (2006) All FWLR (Pt.340) P.1041 at 1055 R.3; Otanma v. Youdubagha (2006) All FWLR (Pt.300) 1579 at 1595; and Odubote v. Okafor (2012) 11 NWLR (Pt.1312) P.419 at 439.
Counsel submitted that Exhibit A1 via which the Appellants relied on to prove customary arbitration which confirmed that the Appellants were the owners of the land in dispute would not avail the Appellants, as customary arbitration is not a method of proving title to land; the date in which the document was made is not ascertainable; and the crucial elements of a valid customary arbitration, which is voluntary submission by parties to the arbitration process was not pleaded nor proved by the Appellants at trial.
He relied on: Awonusi v. Awonusi (2007) All FWLR (Pt.391) P.1642 at 1661; Kalu v. Onwuegbu (2008) All FWLR (Pt.435) P.1713 at 1735A; and Nruama v. Ebuzoeme (2007) All FWLR (Pt.347) P.723 at 740 B-C.
In the reply brief, learned counsel for the Appellants submitted that the case of Essien v. Ekanem (2010) All FWLR (Pt.523) 1992, and similar authorities relied upon by the Respondents is of no moment as the Respondents did not specifically plead acts of ownership and long possession as their root of title other than traditional history as can be gleaned from their statement of claim and having failed to establish their root of title by traditional history are not permitted to migrate to acts of ownership and possession as alternative.
Learned counsel further submitted that the material contradictions in the testimonies of the Respondents as to their root of title, whether Badong founded the land or inherited it from Mala ought to have been resolved in favour of the Appellants by the learned trial Judge.
RESOLUTION OF THE ISSUE
The law regarding the determination of civil suits is clear and to the effect that a party who is desirous of getting an order or relief from a Court of law has the duty of proving the existence of facts which establishes his entitlement to the grant of that order or relief. The foregoing is what is referred to as burden of proof in the law of evidence. See: UNION BANK v. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC); and ADIGHIJE V. NWAOGU & ORS (2010) LPELR-4941(CA).
Particularly with regards to declaration of title to land, which has at its core the extinguishing of rights which may hold a lot of sentimental value in addition to vast economic significance to persons vying for same, the law is settled that a party seeking declaration for title to land must prove that he is entitled to such grant by adducing cogent and reliable evidence in support of his claim, particularly as to the root of his title. He must rely on the strength of his own case and not on the weakness of the defendant’s case to succeed. This Court in the case of IKE & ANOR v. ANUDIKE & ORS (2018) LPELR-45085(CA) Per ABIRIYI, J.C.A. (Pp. 24-25, Paras. D-B), succinctly stated the general principle applicable to declarative reliefs thus:
“The law is settled that 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 plaintiff or person seeking the declaratory relief. It is the practice that 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 plaintiff must plead and prove his claims 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 SC, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 at 707 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184 CA page 25-26.”
See: KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR-1703(SC); OLATOMIDE & ANOR v. IKUMUYILO & ORS (2019) LPELR-48374(CA); and OLATUNJI & ORS v. AYENI (2019) LPELR-48495(CA).
The Supreme Court in the case of ONOVO & ORS v. MBA & ORS (2014) LPELR-23035(SC), (P. 27, paras. A-E) per OGUNBIYI, J.S.C. reiterated the foregoing in relation to declaration of title to land thus:
“The law is also settled that in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence they are entitled to the declaration sought.’’
The five methods of proving title to land was authoritatively laid down by the Supreme Court in the case of Idundun v. Okumagba and restated by the Supreme Court in the case of DAKOLO & ORS. v. REWANE-DAKOLO & ORS. (2011) LPELR-915(SC) per RHODES-VIVOUR, J.S.C. (Pp. 23-24, paras. F-D) thus:
“There are five ways in which ownership/title to land may be proved. They are: 1. Proof of traditional evidence; 2. Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilising the land beneficially such acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he is the true owner; 3. Proof by production of document of title which must be authenticated; 4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done; 5. Proof of possession of connected or adjacent land, circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may rank also as means of proving ownership of the land in dispute. See: Amajideogu v Ononaku (1988) 2 NWLR pt.78 p.616 Piaro v Tenalo 1976 12 SC p31 Idundun v. Okumagba (1976) 9-10 SC p224 Omoregie v. Idugiemwanye (1985) 2 NWLR Pt.5 p.41”
Appellants’ main grouse with the decision of the lower Court is predicated on the contention that the lower Court permitted the Respondents to resile from their chosen method of proof of their entitlement to declaration of title over the land in dispute, that is traditional history, when that method seemed not to favour the Respondents and went ahead to grant the Respondents title based on a different method of proof, that is acts of long possession/ownership. The position being championed by the Appellants is not altogether strange, in line with the fact that although the methods of proof enumerated above are not mutually exclusive concepts, where a party pleads only one method of proof, he is not allowed to cross over to a method that was not pleaded because he has perceived that with the way the direction of trial is going, his chosen method of proof is likely to fail.
Appellants’ attack on the lower Court’s judgment under this head must however of necessity fail, on two grounds, the first being that it cannot not be said that the Respondents did not plead long possession as proof of title. Paragraph 15 of the Respondents’ statement of claim avers as follows: ‘’The Plaintiff avers that they were on the land in dispute peacefully, it is just last year January, 2015 the defendants start laying claim on the land in dispute.’’ Paragraphs 20 and 23 also contain averments that show acts of ownership/long possession in the siting of the graves of the Respondents’ grandfathers and fathers, and a shrine on the land.
Furthermore, a careful evaluation of the facts of the case at trial and on appeal in conjunction with the decision of the learned trial Judge reveals that what was presented to the lower Court was a situation where both parties to the action were relying on traditional history to prove their entitlement to title over the same parcel of land and the versions of ownership from both sides of the opposing divide was vastly different. What the learned trial Judge did was to apply evidence of incidents of recent acts of ownership, in order to decide which version of events he would go with, which was the proper thing to do in the circumstances.
The Apex Court in the case of ANUONYE WACHUKWU AND ANOR V AMADIKE OWUWANNE AND ANOR [2011] 46 NSCQR 1(SC), pages 39-40, made pronouncements on how a trial Court ought to approach similar circumstances thus:
‘’Traditional history being of the nature it is -not documented- it usually boils down to the oath of the plaintiff and his witnesses against that of the defendant and his witnesses and the Court is called upon to decide as to which of the versions of traditional history it prefers. To do this, the Court usually evaluates the evidence side by side any documentary evidence available and acts of possession by the parties in recent memory, it is after evaluating these pieces of evidence that the Court where possible decides on which version is preferable and why. Once the Court believes the traditional evidence/history of the plaintiff as to the founding of the land in disputes, it means that the plaintiff has succeeded in establishing his claim to title of the land disputed and has to succeed.’’
See: Are v Ipaye (1990) NWLR (Pt.132)298 (SC)
The evidence of traditional history as presented by the Respondents before the lower Court was cogent and compelling and convinced the learned trial Judge as to its veracity. The lower Court then went on to confirm its belief by a visit to the locus in quo to confirm recent acts of ownership and this Court finds no reason to interfere with such procedure and decision. Appellants’ position on contradiction in the testimonies of some of the Respondents’ Witnesses holds no water, as they are not material, in that they do not constitute enough grounds to reject the Respondents’ traditional history, which by its nature is subject to human failings of inaccurate recollections of events. Respondents’ traditional history traces firmly their root of title to their Grandfather Badong and answers all the questions required to be answered by traditional history as per who founded the land, how he founded the land and how the land passed from him to the persons currently claiming through him. The purported customary arbitration as contained in Exhibit A was rejected by the learned trial Judge on the ground that it was not signed by the parties, hence the crucial element of consent of the Parties was missing (‘’consensus ad idem’’) and I have no reason to set aside such sound finding.
See: OGUNDOYIN & ORS v. EWENLA (2017) LPELR-43218(CA); AJAYI & ORS v. AKAWA & ANOR (2018) LPELR-44933(CA); and ANAGBADO v. FARUK (2016) LPELR-41634(CA).
In my view, the trial was properly conducted and the learned trial Judge drew proper inferences from the evidence placed before him in Court and on visit to locus in quo resulting in a sound judgment. This is indeed the primary duty of the trial Judge who was physically present at the time evidence was adduced.
See: ALALADE & ORS v. ODODO & ORS (2019) LPELR-46888(CA); and OGUNDE v. ABDULSALAM (2017) LPELR-41875(CA).
In summation, the sole issue nominated for determination is resolved against the Appellants. The appeal lacks merit and same is hereby dismissed.
The judgment of the lower Court delivered on 8th June, 2020 in Suit No: TRSJ/90/2016 is hereby affirmed.
Parties to bear their respective costs of prosecuting the appeal.
CHIDI NWAOMA UWA, J.C.A.: I read before now, the draft copy of the judgment delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking in merit.
I also dismiss the appeal for lacking in merit and affirm the decision of the lower Court delivered on 8th June, 2020 in Suit No. TRSJ/90/2016.
I abide by the order made by my learned brother in the leading judgment as to costs.
I am in agreement with the reasoning and conclusion therein, and adopt the judgment as mine. I have nothing extra to add.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance, the lead judgment of my learned brother, Jamilu Yammama Tukur, JCA, where the facts giving rise to this appeal, and the issues in contention have been set out and determined. I am in agreement with the reasoning and conclusion therein, and I adopt the judgment as mine. I have nothing extra to add.
Appearances:
F. A. Nyaro Esq. For Appellant(s)
H. H. Zaka Esq For Respondent(s)