MAGAJI & ANOR v. DAMBO & ORS
(2022)LCN/17059(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Monday, April 11, 2022
CA/S/107/2018
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
1. ADAMU MAGAJI 2. BAWA MAGAJI (On Behalf Of Themselves And Family) APPELANT(S)
And
1. HARUNA DAMBO 2. HARUNA NOMA RIKUBU 3. MAIGANGA SAIDU 4. GARBA BARMO RESPONDENT(S)
RATIO
THE POSITION OF LAW ON HEARSAY EVIDENCE
Hearsay evidence is evidence which is given by a witness who relates not what he or she knows personally but what others have said and is therefore dependent on the credibility of someone other than the witness. Such evidence as a rule is generally inadmissible under the rules of Evidence Act, Section 38 of the Evidence Act except as provided in the Act. See Santuraki Hassan Vs. Vixen Ent. Nigeria Ltd (2015) LPELR-40357 (CA). Thus, evidence of traditional history is admissible evidence as constituting an exception to the rule which prohibit the admissibility of hearsay evidence.
See: Section 66 of the Evidence Act, read together with Section 38, Section 66 of the Evidence Act provides thus;
“Where the title or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is admissible.”
The issue before the trial Court is over the ownership of the piece of land in dispute. As between the Appellants and the Respondents, who is/are the owners of the land in dispute? That is the question before the trial Court. In their bid to prove their case, the Appellants led evidence of traditional history through witnesses called by them. It is this evidence of these set of witnesses that the trial Court has jettisoned as incredible contradictory and inadmissible hearsay Such conclusion arrived at by the trial Court is wrong given the provisions of Section 66 of the Evidence Act, 2011.
Indeed, oral evidence of traditional history is admissible in a claim for declaration of title to land founded on family or communal traditions. See: Igbojimadu Vs. Ibeabuchi(1998) 1 NWLR (Pt.533) 179; Ewo Vs. Ani (2004) 3 NWLR (Pt.861) 611; Oyekola Vs. Ajibade (2004) 17 NWLR (Pt.902) 356; Nwokidu Vs. Okanu (2010) 3 NWLR (Pt. 1181) 362.
Thus, the trial Court unarguably, cannot be correct when it declared such evidence as “inadmissible hearsay.”
The law recognizes and accepts evidence of traditional history which is evidence of hearsay upon hearsay because it deals with events which occurred long ago and the history of which has been handed down from father to son or from generation to generation. It is evidence as to rights alleged to have existed beyond the time of living memory. See the case(s) of Alade V. Awo (1975) 4 SC 215, 223, 224; Okonkwo V. Okonkwo(2004) 5 NWLR (Pt.865) 87; Olaleye Vs. Adejumo (2005) 10 NWLR (Pt. 933) 429; Elegushi Vs. Oseni (2005) 14 NWLR (Pt. 945) 348. PER HUSSAINI, J.C.A.
THE POSITION OF LAW WHEN A COURT IS CONFRONTED WITH A CLAIM FOR DECLARATION OF TITLE TO LAND
When a Court is confronted with a claim for declaration of title to land, what is upper most in the mind of the Court is to see or find whether the person seeking such declaratory relief has led satisfactory evidence to prove;
(i) The identity of the land he claims. See; Dada vs. Dosunmu (2006) 18 NWLR (Pt. 1010) 134
(ii) The root of his title to the land in question.
Those are the two main hurdles a Claimant must surmount if a declaratory order of title must be made in his favour. See Odiche V. Chibogwu. (1994) 7 NWLR (Pt. 354) 78
This has to be so, not only because the burden of proof lies on him as ordained by law but, in addition, he must succeed on the strength of his own case and not to rely on the weakness of the defence case save where the defence supports the case of the Claimants. See; Matanmi Vs. Dada (2013) 2 SCNJ (Pt.11) 616, 622; Atanda Vs. Ajani (1989) LPELR-589 (SC); Kodilinye Vs. Mbaniefo Odu (1936) 2 WACA 337; Ofodite Vs. Ikedife (2015) LPELR-40712 (CA).
Talking about the identity of the land in dispute, the Claimant must, necessarily show to the Court and clearly too, the area of land to which the claim relates to which the declaration can be attached, the dimension of the land, the boundaries and other features. See; Momoh & Ors Vs. Umoru & Ors (2011) LPELR-8130 (SC); Gbadamosi Vs. Dairo (2007) 3 NWLR (Pt.1021) 282; Dada Vs. Dosunmu (2006) 18 NWLR (Pt.1010) 134.
However, this duty only arises on the Claimant to prove the identity of the land he claims where the Defendants made it an issue in his defence by specifically disputing the area, location or size of the land as described by the Claimant in his statement of claims. See the decision of the Supreme Court in Anyawu Vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 (SC); Nwobodo Ezeudu Vs. Isaac Obiagwu (1986) 2 NWLR (Pt. 21) 208, 220. Where therefore the identity of the land in dispute is not in dispute, the Claimant would have been absolved from the duty of proving the identity of the land. Akinterinwa Vs. Oladunjoye (2000) 6 NWLR (Pt.659) 92. In that regard, the Claimants have scaled the first hurdle. PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): By way of the Writ of Summons filed along with the Statement of claim at the High Court of Justice of Kebbi State on 27/9/2017, the Claimants as the Appellants, sought a variety of reliefs against the Defendants, now Respondents, to wit:-
1. An order of declaration that the land in dispute described in paragraph 21 of the Statement of claim belong to the Claimants for themselves and the family.
2. An order of perpetual injunction restraining the defendants by themselves, privies, assigns, agents, successors in title, representatives, from further encroaching on the land and from further asserting the title on the land as theirs.
3. The sum of N50,000.00 as the cost of this action as dictated by the Rules of the High Court below.
The Originating processes were filed and served on the Defendants now respondents. The Respondents in turn upon the receipt of those papers originating the action now filed their defence and denied the claim, hence the case proceeded into trial during which the Claimants and the Defendants respectively, elicited evidence through their witnesses.
Given the pleadings and evidence led, the case presented by the parties can be summarized thus;
For the Claimants, they are the owners of the land in dispute which the Respondents now occupy that they inherited same through their father one Magaji who cultivated the land during his lifetime and upon his demise the land devolved on them. The land in dispute and other adjoining lands, according to the Claimants, was a virgin forest which their grandfather deforested and he was first to cultivate the land. After the death of their grandfather by the name, Kondokaya, their father inherited the land and it was at that time Respondents’ grandfather, by name Maikidi approached their father for the use of the land for grazing purpose and their father obliged them. Defendants’ grandfather, it was contended, had been displaced from their original place of abode and therefore sought refuge with them at Zamare. Defendants’ Grandfather, it was alleged, had earlier … been given a portion of land to build their houses. The portion of land in dispute is not where the Respondents’ grandfather built their houses but the land given to them for farming and grazing. The Claimants gave the description of the location of the land in dispute as being situate at Ripolo, Zamare in Yauri and contended that it is only of recent that the Respondents now lay adverse claims to ownership of the land to which they are customary tenants since the land in dispute was given to them (the Respondents) on loan hence the suit instituted against them for the recovery of this land.
As indicated before the claim was denied. By their pleading and evidence, the Respondents aver that the land in dispute belong to them having inherited same through their grandfather, Maikidi who is also the father of the 2nd and 4th Respondents. They claimed that Maikidi was the first to settle on the land in dispute while the Appellants’ grandfather Kondokaya, joined them at a later date. They claim that they have been in possession of the land in dispute for about 50 years and neither the Appellants nor their parents ever lay claim to ownership of the land until of recent.
I can observe that by their statement of defence, at pages 26-29 of the record, the Defendants/Respondents pleaded and lay adverse claim of ownership to the land in dispute, they have not filed a counter-claim as is required of them by the Rules of the High Court below.
Be that as it may, the parties at the trial led evidence and at the close of evidence and counsel’s final addresses on the 14/02/2018 at page 77 of the record, the Court adjourned proceedings for Judgment.
In the considered judgment delivered on the 14th March, 2018, the Federal trial Court of Kebbi State had reason to dismiss the suit of the claims in the following words:-
“In my view the quality of the evidence of the witnesses who testified for the claimants was virtually rendered incredible, contradictory and inadmissible hearsay as a result of cross examination as I have earlier found. I am therefore satisfied that the claimants failed to produce prima facie proof that the land in dispute belonged to them and it was borrowed to the Defendants or their father. The Plaintiff did not successfully discharge the initial burden of proof on them with credible evidence and therefore, the onus does not shift to the Defendants and in the circumstances the Court is not obliged to look at their case. See Okolidium V. Eneonnu (2009) 38 NSCQR 878 at 900. I therefore find no merit in the Claimants’ case and it is hereby dismissed.”
The Appellants have appealed to this Court against that judgment and order vide the notice of appeal, dated the 7th June, 2018 and filed the same date. However, by the amended notice of appeal granted with the leave of Court on 27/9/18, the Appellants have appealed to this Court on five grounds. Briefs of argument were filed and exchanged upon the record of appeal being transmitted to this Court and adopted at the hearing on 18/01/2022.
Issued identified in the Appellants’ granted Brief of argument filed on 17/11/2020 but deemed on 6/10/2021 are at pages 3-4 of the said amended brief thus:-
(i) Was the Court correct in law to have held that the Appellants kept silent for 20 years of use and occupation of the disputed property by the Respondents? (Decoded from ground 1 of the amended ground of appeal).
(ii) Was the Court below correct in law to have held that the quality of the evidence of witnesses for the Appellants were rendered incredible, contradictory and inadmissible hearsay as a result of cross–re- examination? (Decoded from ground 2 of the amended grounds of appeal).
(iii) Was there a failure of the Court below to consider whether the Appellants have proved their entitlements to the disputed land through any of the recognized ways of proof of ownership of land? (Decoded from ground 3 of the amended grounds of appeal).
(iv) Was the decision of the Court below correct in law? (Decoded from grounds 4 & 5 of the amended grounds of appeal).
Respondents in the brief of argument filed on their behalf on 3/11/2021 identified 4 issues which are similar to those of the Appellants, namely;
1) Whether the lower Court was correct to have held that the Appellants kept silent for 20 years of use and occupation of the disputed property by the Respondents (this is culled from ground 1 of the grounds of appeal).
2) Whether the lower Court was correct in law to have held that the quality of the evidence adduced at the trial Court by the Appellants were tendered incredible contradictory and inadmissible hearsay as a result of cross-examination (this is culled from ground 2).
3) Was there a failure of the Court below to consider whether the Appellants have proved their case through any of the recognized ways of proving ownership of land? (This is culled from ground 3).
4) Whether the decision of the lower Court was correct in law (this is culled from grounds 4 & 5).
I have indicated before now that the parties have in their briefs of argument raised identical issues for determination. Having however given thought to those issues, I am of the view that issue No.1 can stand on its own while issue Nos. 2, 3 and 4 so far as they relate to the question whether or not the Appellants have proved their case at all, can be collapsed into just one (1) issue as issue No. 2 thus: –
“Whether the Appellants as the Claimants have led credible evidence to entitle them to an order for declaration of title to the land in dispute?”
It follows therefore that the two (2) issues I need to address in this appeal are these:-
1) Was the Court correct in law to have held that the Appellants kept silent for 20 years of the use and occupation of the disputed property by the Respondent?
2) Whether the Appellants as the Claimants at the trial Court have led credible evidence to entitle them to an order of declaration of title to the land in dispute?
In arguing issue No.1 learned counsel for the Appellants referred us to the record of judgment at page 102 lines 25–30 where the Court below in its finding, held that if at all the land in dispute belong to the Appellants, they should not have remained silent and allow the Respondents to live or occupy the land for 20 years. Learned Appellants’ counsel argued that this finding by the Court below was misleading. He referred us to the evidence of P.W.2, PW3, PW4 and PW5 upon cross-examination where they asserted that the land in dispute was given to Respondents’ grandfather on loan and for which reason the Respondents came into possession and remained on the land. The problem, argued the learned Appellants’ counsel, arose when the Respondents now laid adverse claim to ownership of the land in dispute which led to this suit being filed at the Court below.
Given those facts, learned Appellants’ counsel argued that the trial Court could be right when it held that the Respondents were in possession of the disputed land for 20 years without disturbance of the Appellants. Learned Appellants’ counsel further buttressed their argument by reference to the earlier holding in which the Court below at page 101 lines 7-12 held that Appellants’ cause of action only arose or accrued about 3 years before (and not 20 years) when the Respondents lay claim of ownership to the land in dispute. We were urged to hold that the finding made at page 102 lines 25-30 and at page 103 lines 1-2 by the Court below with reference to the evidence of PW1, that the Respondents have been on the land for 20 years, was ill-conceived and same should be ignored. We were urged to resolve this issue in favour of the Appellants.
Arguing issue No.1 per contra for the Respondents, their counsel made reference to the evidence of PW1–PW5 who said that the Respondents have lived on the land for 20 years and for the fact that the Respondents have been in possession of that land for that period of time, justify the finding made at the Court below. We were urged to resolve issue No.1 in favour of the Respondents.
As part of the reasons for dismissing the case for the Appellants, the trial Court in its judgment held at pages 102 lines 25-30 and at page 103 lines 1-2 thus:
“…The PW1 Bawa Magaji said under cross-examination that; ‘it is true the Defendants entered into the land in dispute without our consent. They have entered into the land for about 20 years now’ the question now is if the land actually belonged to the Claimants as stated by PW1 in his evidence in chief, why did they keep silent for 20 years when the Defendants were said to have entered into the land without consent? The effect of the answer will certainly render the evidence of the PW1 incredible on the matter…”
Given that finding, the trial Court held that the evidence of PW1 and PW2 given under cross-examination were contradictory to the other in that whereas, PW1 stated in his evidence that the Respondents entered their land without consent, PW2 on the other hand said that the Respondents entered into the land in dispute by force. It was on the basis of that finding the Court also held that the evidence of PW1 and PW2 was not credible. The Court further found it difficult to believe if indeed the Appellants are the owners of the land and loaned the land to the Respondents but kept mute over the years without exerting their ownership for 20 years. Before I go any further, I should observe here with reference to the Appellants’ statement of claim is whether that fact was made or pleaded as to suggest that the Respondents entered the land in dispute without the consent of the Appellants. Or with force, a fact which the trial Court made heavy, weather of to disbelieve the evidence of PW1 and PW2. The Respondents did not also plead those facts in their statement of defence. If at all those witnesses gave evidence to that effect, stating that the Respondents’ entry on the land in dispute was by force or without the consent of the Appellants, then that piece of evidence should go to no issue and same ought to be discountenanced. See ABC Ltd Vs. Gwagwada (1994) LPELR-204 (SC), Alahassan Vs. Ishaku (2016) LPELR-40083 (SC).
Therefore, any finding of fact by a trial Court to which there is no pleading is useless. It is worthless and the same cannot be the basis for the decision of Court in the instant case on appeal, the Court below disbelieved PW1 and PW2 on account of the fact that they contradicted themselves whereas the facts over which the two witnesses allegedly contradicted themselves were not pleaded by either the Appellants or the Respondents in their respective statements.
The question for consideration under issue No.1 is whether the Respondents who were said to have been on the land in dispute for about 20 years remained so on the land to the knowledge and acquiescence of the Appellants?
Given the evidence of PW1, PW3, PW4 and PW5, that question must be answered in the negative in favour of the Appellants;
PW2 in his evidence (statement on oath) at page 12 of the record paragraph 17 stated thus;
“17: – That 3 years ago the Defendant began to assert ownership to the piece of land and as such claimants requested from the Defendants their land but the Defendants refused…..”
Giving evidence under cross-examination PW2 said at page 69 lines 15-17 of the record thus: –
“It is not true to say that the Defendants entered the land by force. The Defendants are now in possession of the land in dispute for about 20 years now.”
PW3 in his remark under cross-examination acknowledged the fact that the land in dispute was loaned to the father of the Respondents. See page 70 lines 8-9 and page 70 lines 17-20 of the record, PW4 and PW5 gave similar evidence in their evidence under cross-examination at pages 71-72 of the record.
Therefore, the question that the Appellants had kept mute over the years spanning the period of 20 years that the Respondents have been in occupation or possession of the land in dispute does not arise.
The trial Court nonetheless relied on this fact, a fact which is a non-issue, to dismiss the case/claim of the Appellants without considering the case on the merits. In any case, I find it incongruous the stance taken by the Court below viewed against the backdrop of an earlier finding made by the same Court in the same judgment at page 101 lines 7-22 of the record where the trial Court held thus:
“…It will be seen that in paragraph 8 and 12 of the Statement of claims it was averred by the Claimants to the effect that the land was borrowed to the Defendants and only in paragraph 20 it was alleged as follows;
“20. The Claimants avers that 3 years the Defendants began to lay claim of ownership on the land and the Claimants reminded them that they (the Defendants) were only borrowed that piece of land that it has never been theirs but the Defendants insisted.”
Thus the Claimants have asserted that the wrong which gave rise to their right of action accrued only 3 years ago when the Defendants began to lay claim of ownership over the land which was allegedly borrowed to them. In the circumstances, the action cannot be said to be defeated by a plea of limitation of time provided in Section 3 of the Limitation Law of Kebbi State, 1996. More so under the rules of pleadings and the principle of Evidence, a Defendant who wants to raise the defence of Statute of Limitation, must plead that defence. See Ketu Vs. Onikoro (1984) 10 SC 265 at 267. In this case, it is not pleaded and therefore cannot be granted even if were applicable. The objection therefore fails and the issue is resolved against the Defendant…”
The trial Court clearly contradicted itself when it dismissed Appellants’ claim without reference to that finding referred to above.
It is understandable why the Appellants at the beginning did not proceed to take action against the Respondents whom they believed were lawfully living on the land in dispute as tenants until recently when the Respondents made adverse claims to ownership of the land in dispute. Given the facts and evidence on record which the trial Court has a duty to consider and evaluate but which it failed to has led to the erroneous conclusion that it did when it dismissed the case of the Appellants. If properly considered and evaluated, the trial Court would have come to the conclusion that the Appellants had not slept over their rights to warrant the finding made by the trial Court. Issue No.1 in effect, it resolved in favour of the Appellants and against the Respondents.
With this conclusion I have arrived at, over issue No.1, I now proceed to issue No. 2 and the question is;
Whether the Appellants as Claimants at the trial Court have led credible evidence to entitle them to an order of declaration of title to the land in dispute?
This question or issue covers issue Nos. 2, 3 and 4 identified by both the Appellants and Respondents in their respective briefs of argument. In dealing with this question one cannot help but re-evaluate the evidence on the printed record which the trial Court failed to do in the exercise of its primary duties. However, there is need first, to give a sum up of the arguments of counsel on both sides on this very important question. Section 15 of the Court of Appeal Act, 2004 permits this Court to do so, to re-evaluate evidence on the printed record.
In arguing issue No.2 as identified by me, the learned Appellants’ counsel has faulted the manner the trial Court went about to assess only the evidence of the Appellants witnesses given under cross-examination without a corresponding assessment of their evidence in chief and yet dismissed the case of the Appellants on account of the evidence of witnesses being incredible, contradicting and inadmissible hearsay. Learned Appellants’ counsel has submitted; that there is nothing contradictory in the evidence of Appellants’ witnesses, substantial enough to warrant the finding made against the Appellants since what the trial Court considered to be contradiction were only minor discrepancies in their evidence. It is argued for the Appellants that the trial Court did not state or evaluate how the evidence of witnesses called by the Appellants became hearsay evidence in reference of page 104 of the record. It is argued that the Appellants relied on traditional history evidence as well as acts of possession spanning over a long period of time to establish their root of title. He argued that evidence of Traditional history is by its nature hearsay evidence which the law allows as admissible. He referred us to Section 66 of Evidence Act, 2011 and a number of decided cases.
He argued further that the evidence extracted from Appellants’ witnesses which the Court held were contradictory, were indeed irrelevant and not being material to the case, given the fact that those facts were not pleaded. Relying on the case of Punch Nig. Ltd Vs. Eyitene (2002) FWLR (Pt.125) 678, 701 (Ratio 4). Learned counsel argued that evidence elicited from a party by his opponent during cross-examination cannot be used against the party if the material fact relating to the evidence was not pleaded. He further referred us to the decision in Owena Bank Plc Vs. Olatunji (2002) FWLR 529, 288 ratio 22, among others.
Learned counsel for the Appellants further submitted that the failure of the trial Court to consider whether or not the Appellants have proved their case by any of the required methods for establishing title had occasioned a miscarriage of justice. He argued that by dint of the traditional history evidence, acts of possession by the Appellants, spanning a long period of time, the Appellants have proved their case so far as the evidence of traditional history over the acquisition of land in dispute, how the land devolved into the Appellants and how the Defendants/Respondents were given the land on loan was not contradicted.
He argued further and submitted that even if it is assumed that the Respondents are in possession of the disputed land, their possession cannot supplant the actual owners of the land in their right of ownership as is the case with the Appellants. Given the evidence on record for the Appellants, it was argued that the decision handed out at the trial Court was wrong. Arguing per contra, the learned Respondents’ counsel submitted that the trial Court was right when he dismissed the case of the Appellant based on the contradictory evidence of witnesses called by them under cross-examination. He referred us to the evidence of PW1 and PW2 in particular at pages 68 and 69 of the record and to the claims in Orekpan Vs. Amadi (1993) 11 SCNJ 68. On the questions whether the Appellants had proved their case at all, it was argued that they did not, given the standard set by law. He referred to Obadeeke Nnubia V. AG Rivers State & 2 Ors (2009) 4 NSCQR Para A-D. The Learned counsel to the Respondents argued that the Appellants did not lead evidence to establish the identity of the land in dispute, neighbours to the land, the extent and size of the land, the root of title. He relied onNwogo Vs. Njoku (1990) 3 NWLR (Pt.140) 570, 586. He argued further stating that the person who relied on traditional history must plead and lead evidence to prove:-
(a) Who founded the land
(b) How the land was founded
(c) Particulars of intervening owners, in reliance on Balaje V. Yaya (2015) WRN 29, 44, it was argued that the pleading in the Statement of Claim was not supported by evidence hence the pleaded facts go to no issue. He relied on Obulor V. Oboro (2001) 4 SCNJ 2 and Olarewaju V. Afri Bank Nig. Plc (2001) 2 SCNJ 492. He argued finally stating that the Appellants did not prove their case. We were urged to dismiss their appeal and affirm the decision of the trial Court.
Resolution of issue No.2
In addressing issue No.1 the question arose as to whether the trial Court could dismiss the case of the Appellants, particularly on the alleged contradictory nature of the evidence of witnesses for the Appellants given under cross-examination, whereas the point upon which the Court based that finding or decision was not pleaded at all. That same point has dovetailed into issue No.2 in that the Court below found that the evidence of the witnesses called by Appellants witnesses were not only contradictory but were hearsay evidence and these, have rendered such evidence as “inadmissible hearsay”.
Hearsay evidence is evidence which is given by a witness who relates not what he or she knows personally but what others have said and is therefore dependent on the credibility of someone other than the witness. Such evidence as a rule is generally inadmissible under the rules of Evidence Act, Section 38 of the Evidence Act except as provided in the Act. See Santuraki Hassan Vs. Vixen Ent. Nigeria Ltd (2015) LPELR-40357 (CA). Thus, evidence of traditional history is admissible evidence as constituting an exception to the rule which prohibit the admissibility of hearsay evidence.
See: Section 66 of the Evidence Act, read together with Section 38, Section 66 of the Evidence Act provides thus;
“Where the title or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is admissible.”
The issue before the trial Court is over the ownership of the piece of land in dispute. As between the Appellants and the Respondents, who is/are the owners of the land in dispute? That is the question before the trial Court. In their bid to prove their case, the Appellants led evidence of traditional history through witnesses called by them. It is this evidence of these set of witnesses that the trial Court has jettisoned as incredible contradictory and inadmissible hearsay Such conclusion arrived at by the trial Court is wrong given the provisions of Section 66 of the Evidence Act, 2011.
Indeed, oral evidence of traditional history is admissible in a claim for declaration of title to land founded on family or communal traditions. See: Igbojimadu Vs. Ibeabuchi(1998) 1 NWLR (Pt.533) 179; Ewo Vs. Ani (2004) 3 NWLR (Pt.861) 611; Oyekola Vs. Ajibade (2004) 17 NWLR (Pt.902) 356; Nwokidu Vs. Okanu (2010) 3 NWLR (Pt. 1181) 362.
Thus, the trial Court unarguably, cannot be correct when it declared such evidence as “inadmissible hearsay.”
The law recognizes and accepts evidence of traditional history which is evidence of hearsay upon hearsay because it deals with events which occurred long ago and the history of which has been handed down from father to son or from generation to generation. It is evidence as to rights alleged to have existed beyond the time of living memory. See the case(s) of Alade V. Awo (1975) 4 SC 215, 223, 224; Okonkwo V. Okonkwo(2004) 5 NWLR (Pt.865) 87; Olaleye Vs. Adejumo (2005) 10 NWLR (Pt. 933) 429; Elegushi Vs. Oseni (2005) 14 NWLR (Pt. 945) 348.
Having said as above the next question I should address, still under issue No.2, is whether the Appellants proved their case at all and if they did was the Court below not in error in dismissing the case of the Appellants?
Learned Appellants’ counsel addressing this point has referred us to the five (5) different methods by which title to land can be established and he submitted that in this case, the Appellants have led evidence to prove their title by three (3) of the five (5) recognized methods. He argued that the Appellants led: (1) Evidence of traditional history, (2) Evidence of possessive acts of ownership extending over a sufficient length of time (3) evidence of proof of possession of connected or adjacent land in circumstance making it probable that the Appellants, who are the owners of such connected or adjacent land are in addition the owners of the land in dispute but that the Court below failed to consider whether the Appellants have established their title before handing out its judgment in favour of the Respondents.
It is argued from the Appellants that by the sheer fact that the Appellants are in possession and exercise acts of possession and enjoyment of the land, raises a presumption under Section 35 of Evidence Act, that they are the owners of the land. He relied on the decision of Okwaraonobi Vs. Mbadugha (1998) 7 NWLR (Pt. 558) 471. With respect to traditional evidence, learned Appellants’ counsel referred us to the pleadings and evidence of witnesses called by the Appellants as to who founded the land, how the land was founded and how the same land devolved into the Appellants. He argued that the Appellants’ traditional history evidence was not impeached by the Respondents especially on the issue of the land being loaned to the Respondents. The Court below, he argued, ought to have believed and acted on the Appellants’ traditional history evidence to give them judgment. In addition to evidence of traditional history, it is also argued that Appellants led evidence of possessive acts of ownership extending over a significant length of time. Further to that, it was argued for the Appellants that by the evidence led by them of the possession of connected or adjacent land to the land in dispute; it is probable that the Appellants in addition, are the owners of the land in dispute. The Court below, it was argued failed to answer any of those questions before it entered judgment against the Appellants.
Learned Appellants’ counsel urged us to step into the shoes of the trial Court and evaluate those evidences which the trial Court failed to discharge in the performance of its primary duties and give judgment in favour of the Appellants, relying on the decision in Rev. King Vs. State (2016) LPELR-40046 (SC). Learned Appellants Counsel without necessarily conceding that the land in dispute is in possession of the Respondents, argued that assuming it to be so, the Appellants who are the true owners of the land cannot be divested of their title merely because the Respondents are in possession of the disputed land. We were referred to decisions in Registered Trustees of the Apostolic Faith Mission Vs. James (1987) 3 NWLR (Pt.61) 556; Nwaeseh Vs. Nwaeseh (2000) 3 NWLR (Pt. 649) 391; Yusuf V. Adegoke (2007) 11 NWLR (Pt.1043) 332; Olubodun V. Lawal (2008) 17 NWLR (Pt. 1115) 1. In the face of the failure of the trial Court to evaluate the evidence adduced by the Appellants so as to ascertain whether or not the Appellants have proved their ownership of the land in dispute by any of the methods recognized for proving title to land, we were urged to hold that the trial Court cannot in those circumstance be correct. Further contended that the same Court equally failed to evaluate the evidence of the Respondents who laid adverse claims of title to the land in dispute to ascertain whether the Respondents are entitled to their claim.
Learned Appellants’ counsel recalled how the Court below dismissed Appellants’ case merely because of some perceived contradictions in the evidence of witnesses called by them. He argued that if such contradiction exists at all, it cannot be the basis for holding that the Appellants have failed to prove their root of title. In reference to Section 35 Evidence Act, it was argued that by the mere acts of possession and enjoyment of the land in dispute by the Appellants, the same was evidence of Appellants’ ownership of the land. We were equally referred to Section 143 of Evidence Act and the decision in Amaefuna V. Okoli (2014) LPLRN-23755 (CA) and the submission by the Appellants is that it is for the Respondents to now prove that the Appellants are not the owners of the land they are shown to be in possession and this not having been proved, the trial Court was wrong to enter judgment against the Appellants. We were urged to allow this appeal and enter judgment in the favour of Appellant over their claim at the trial Court and set aside the judgment of the trial Court.
It is not unexpected that the Respondents argued to the contrary. In the brief of argument filed for the Respondents on the 3rd November, 2021, their counsel argued the case at pages 6-9 of the brief and attempted to justify the stance or the findings arrived at by the Court below particularly on the question whether the trial Court was right in dismissing the claim of the Appellants. Learned Respondents’ counsel acknowledged the findings of the trial Court to the effect that the evidence led by the Appellants at the trial Court was full of contradictions and in that regard the Appellants did not lead credible evidence hence the trial Court justifiably dismissed the case of the Appellants. It is further argued for the Respondents that the Appellants failed to prove the identity of the land claimed neither did they prove the root of their title notwithstanding traditional method of acquisition was pleaded by them. It is argued for the Respondents that issues pleaded but where no evidence was led is ineffectual and go to no issue. He relied on Obulor & Anor Vs. Oboro (2001) 4 SCNJ 2 and Olarewaju V. Afri Bank Nig. Plc (2001) 7 SCNJ 493. We were urged to hold that the Appellants did not prove their claim to warrant an order being made for a declaration of title in their favour.
Resolution of Issue No.1
When a Court is confronted with a claim for declaration of title to land, what is upper most in the mind of the Court is to see or find whether the person seeking such declaratory relief has led satisfactory evidence to prove;
(i) The identity of the land he claims. See; Dada vs. Dosunmu (2006) 18 NWLR (Pt. 1010) 134
(ii) The root of his title to the land in question.
Those are the two main hurdles a Claimant must surmount if a declaratory order of title must be made in his favour. See Odiche V. Chibogwu. (1994) 7 NWLR (Pt. 354) 78
This has to be so, not only because the burden of proof lies on him as ordained by law but, in addition, he must succeed on the strength of his own case and not to rely on the weakness of the defence case save where the defence supports the case of the Claimants. See; Matanmi Vs. Dada (2013) 2 SCNJ (Pt.11) 616, 622; Atanda Vs. Ajani (1989) LPELR-589 (SC); Kodilinye Vs. Mbaniefo Odu (1936) 2 WACA 337; Ofodite Vs. Ikedife (2015) LPELR-40712 (CA).
Talking about the identity of the land in dispute, the Claimant must, necessarily show to the Court and clearly too, the area of land to which the claim relates to which the declaration can be attached, the dimension of the land, the boundaries and other features. See; Momoh & Ors Vs. Umoru & Ors (2011) LPELR-8130 (SC); Gbadamosi Vs. Dairo (2007) 3 NWLR (Pt.1021) 282; Dada Vs. Dosunmu (2006) 18 NWLR (Pt.1010) 134.
However, this duty only arises on the Claimant to prove the identity of the land he claims where the Defendants made it an issue in his defence by specifically disputing the area, location or size of the land as described by the Claimant in his statement of claims. See the decision of the Supreme Court in Anyawu Vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 (SC); Nwobodo Ezeudu Vs. Isaac Obiagwu (1986) 2 NWLR (Pt. 21) 208, 220. Where therefore the identity of the land in dispute is not in dispute, the Claimant would have been absolved from the duty of proving the identity of the land. Akinterinwa Vs. Oladunjoye (2000) 6 NWLR (Pt.659) 92. In that regard, the Claimants have scaled the first hurdle.
It is on this premise I have to revert to the pleadings i.e. the statement of claim and the statement of defence for the Appellants and the Respondents respectively to see if the identity of the land in dispute is in issue.
In the statement of claim (pages 3-6 of record), the Appellants aver at paragraph 4 thus;
4: – The Claimants aver that they are the owner of a piece of land lying and situate in Ripolo Zamare Kebbi State.
The Appellants were more specific when they described the land in dispute at paragraph 23 thus:-
23: – The Claimants aver that the land in dispute has the following boundaries; West bounded by Ware Manya; North bounded by Alkali Hache; East bounded by Bawa Magaji (2nd Claimant); South bounded by Adamu Girci.
Except for paragraph 1, 2 and 3 of the statement of claim which the Respondents as defendants have admitted in their statement of defence (pages 26-29 of the record), the Respondents have denied all other facts contained in the statement of claim including paragraphs and 23 of the statement of claim. However, at paragraph 3 of the statement of Defence, is the averment which suggests to me that the land in dispute is well known to the Respondents. The Respondents aver at the said paragraph 3 thus: –
“3: – In furtherance of the denial, the Defendants avers that the land in dispute belongs to them and they derived their title through inheritance from their late grandfather Maikidi (grandfather to 1st and 3rd Defendant while a father to 2nd and 4th Defendants) who is now death (sic).”
Given the said paragraph 3 of the statement of defence along with paragraphs 8, 13, 17 and 20 among others, of the statement of defence, the land in dispute is known to the Respondents. See: Akinterinwa Vs. Oladunjoye (supra). They (Respondents) have not joined issues with the Appellants over the location or the identity of the land claimed by the Appellants. There is no counter-claim or counter-action over that land. Where the land in dispute between the parties is in respect of one and the same piece or portion of land in that case, the identity of the land in dispute is well known to the parties. To this extent, I am of the view that the land in dispute is known to the Respondents hence the Appellants are no longer obliged to prove the identity or location of the land which the parties have all identified. It is taken as having been established hence learned counsel for the Respondents cannot be correct in his assertion in their brief that the Appellants failed to scale this first hurdle. That is not correct.
Having come to the conclusion that the parties on both sides are at ad idem on the issue of the identity of the land in dispute, the Claimant must of course, in other to succeed in his claim also prove his root of title.
In the bid to prove his case, the Appellants and Claimants at the trial Court called evidence of five (5) witnesses. Their evidence can be seen at pages 68-72 of the record of Appeal. These witnesses also adopted their respective statements on Oath.
However, the Respondents through their counsel in their Court has argued, that the Appellants have failed to lead proper evidence to support their claim as to how the land in dispute devolved unto them as pleaded in their statement of Claim and for which reason they are not entitled to judgment.
I need to look at the pleadings again. In particular, I need to look at the facts pleaded in the statement of claim and relate it to the evidence led in support thereof so as to ascertain the truth or otherwise of the submission made by the learned counsel for the Respondents.
At paragraphs 4, 5, 6, 7, 8, 10 and 11 among others of the statement of claim the Appellants pleaded certain facts which tend to trace the root of title of the Appellants, among other facts pleaded. It is averred thus: –
4. The Claimants aver that they are the owner of a piece of land lying and situate in Ripolo Zamare Kebbi State
5. The Claimants aver that the land in dispute was first deforested by their grandfather Kondokaya who was the first to settle on the land in dispute over 80 years now
6. The Claimants further aver that their grandfather Kondokaya after the deforestation worked on the land in dispute for some years before his death and after his death the land devolved on Magaji the father of the Claimants
7. The Claimants aver that after the land devolved on their father Magaji he worked on it together with his sons the Claimants before the 1st Defendants grandfather Maikidi approached the Claimants’ father for a piece of land in other to keep his cattle which the Claimant father agreed to borrow him to keep his cattle as long as he be of good behavior
8. The Claimants aver that their father had earlier given the Defendants’ father land to build house close to the house of the 2nd Claimant but that the Claimants maintain the surrounding land for their faming activities so since the Defendants grandfather could not have where to keep his cattle he requested that the Claimants’ father should please borrow him a piece of land so that he can keep his animals and the Claimants’ father gave him a portion to keep his cattle now the land in dispute
10. The Claimants aver that the Gikapa was not enough for Maikidi’s growing family so he approached the Claimants’ father for a piece of land which led to the Claimants’ father giving him the piece of land in paragraph 8
11. The Claimants aver that the area their grandfather acquired when he arrived Zamare is a vast land which the family is still working using as farm land out of which some portion are given to some people to build houses only, while they (the Claimants) maintain the surroundings for farming activities.”
As indicated earlier, five (5) witnesses gave evidence in support of the claim; including their evidence vide the statement on oath adopted by them at the trial Court.
Bawa Magaji who gave his evidence as PW1 stated in his statement on oath at paragraphs 4, 5, 6 and 7 at page 18 of the record thus: –
“4: – That the land in dispute is situate at Ripolo, Zamare, Yauri, Kebbi State.”
“5: – That the land in dispute is portion out of a vast land inherited by father Magaji who in turn inherited same from his father Kondokaya and after the death of Magaji our father, the land devolved on us the children.”
“6: – That my grandfather Kondonkaya was the 1st to deforest the land in dispute as one of the 1st settlers in that community over 80 years ago now.”
“7: – That my grandfather deforested the land when it was a virgin land when no one has worked on it and after his demise the land devolved on Magaji his son who happens to be our father.”
Evidence of PW3, Adamu Magaji is along the same line. See page 14 read with page 70 of the record of Appeal. Ditto, the evidence of PW4 at pages 22-24 of record, the evidence of PW5 at pages 8-10 of the record. PW5 has testified as a boundary neighbour to the Claimants while PW2 acknowledged the overlordship of the Claimants/Appellants as the owners of the land in dispute. He lives and farm on the portion of the land given to him by the Appellants through their ancestors.
The claim of the Appellants, given the evidence of witness called by them is founded on the history of the acquisition or the founding of the land in dispute. This is commonly known and called, Traditional history evidence and this is allowed in law. The evidence adduced through PW1, PW3, PW4 and PW5 clearly support the averments contained in the statement of claim as it relates to the founding of the land in dispute. In a claim for declaration of title to land under customary law, the Claimant, who relies on Traditional history evidence is bound to plead and lead evidence as to who founded the land to which his claim relate, how it was founded. He must also plead and lead evidence of intervening owners of the same land over the years. See Balaje Vs. Yaya (2015) 39 WRN 29, 44. Also reported in (2015) LPELR-25630 (CA); Uchendu Vs. Ogboni (1999) 5 NWLR (Pt. 603) 337; Eze Vs. Atasie (2000) 6 SC (Pt.1) 214.
I am satisfied that the Appellants led that evidence in line with their pleadings in the statement of claim hence learned counsel for the Respondents cannot be right to assert that the Appellants failed to lead evidence to the claim to traditional history pleaded in the statement of claim.
One of the methods recognized for establishing of ownership or title to land, is proof by Traditional History evidence. The others are proof:
i. By the production of documents of title duly authenticated in the sense that their due execution must be proved.
ii. By positive acts of ownership extending over a sufficient length of time.
iii. By acts of possession and enjoyment of land; and
iv. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be in addition by the owner of the land in dispute. See Nkado Vs. Obiano (1997) 5 NWLR (Pt.503) 31, 34; Nkwo V. Iboe (1998) 7 NWLR (Pt.558) 354; Chukwu V. Diala (1999)6 NWLR (Pt.608) 674; Inwelegbu Vs. Ezeani (1999) 12 NWLR (pt. 630) 266; Adesanya Vs. Aderonmu (2000) 6 SC (Pt.11) 18; Adeosun V. Jibesin (2001) 14 WRN 106, 108.
The Appellants mainly relied on evidence of Traditional history to sustain their case even though at other times, they fall back on other methods as enumerated above. It is worthy of mention though that the evidence of traditional history elicited in support of the claim was never impeached by Defendants/Respondents, the fact of the 1st founding of the land in dispute by one Kondokaya said to be the grandfather of the Appellants was not impeached. The fact that his son, Magaji inherited the land from his father, who founded the land, was also not impeached. The fact the Appellants inherited the land from their father, Magaji, was also not impeached. The fact that the land in dispute is part of a larger expanse of land originally acquired by the Appellants’ grandfather has not been materially contradicted by the Respondents. The fact that it was the Appellants’ father who also allocated another portion of their farmland to Respondents’ father/grandfather to build the houses where they now live in was also not contradicted. The fact that the Appellants continue to cultivate the land in and surrounding those houses has not been denied. PW5 testified as a boundary witness. He shares boundary with the land in dispute but said in his evidence, that the Claimants/Appellants own the land in dispute. His evidence was not impeached.
PW2 is the allottee of the land where he cultivates. Appellants’ ancestors gave that land to him along with others. One of those who benefitted as allottees of land in that area, he said, were the Respondents’ ancestors, in terms of the land now in dispute among other lands. Again this witness was not contradicted in his evidence.
Given further the evidence of the witnesses to the Appellants, the land in dispute is surrounded by other lands including the land of PW5, which lie to the North or West; the land of Appellants which lie to the East down or up to Zamare Road. The land on which the Respondents have their houses but which the Appellants or their Grandfather still cultivate, belongs to the Appellants. All these put together raises the presumption in favour of the Appellants that they are also the owners of the land in dispute. See Okwaraonobi Vs. Mbadugha (1998)7 NWLR (Pt.558) 471. Section 35 of the Evidence Act also refers. Appellants’ case is that the land in dispute was allocated to Respondents’ parents, not as absolute gift but on loan but the Respondents have now turned around to claim the land as their property. Given the evidence of traditional history elicited for the Appellants, I am inclined to believe the case put up by them and disbelieve the Respondents who in any case, did not counter-claim for title even though in possession or occupation of the land in dispute, but mere possessory right of another cannot displace the title of the true owner of the land. Section 143 of Evidence Act must be invoked in favour of the Appellants. I resolve issue No.2 also in favour of the Appellants. This appeal in effect succeeds and the same is allowed hence the judgment delivered at the High Court of Kebbi State on 14/3/2018 in Suit No. KB/YR/HC/11CV/2017 is set aside and in its place is entered this judgment granting the claim of the Appellants at the trial Court.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in advance, the lead judgment of my learned brother, S. T. Hussaini, JCA. I fully agree with the reasonings and conclusion of His Lordship that this appeal has merits and ought to be allowed. My learned brother very ably and meticulously dealt with all the issues in this appeal and that leaves no room for me to add anything.
I abide by all the consequential orders of my learned brother.
MOHAMMED DANJUMA, J.C.A.: I have the privilege to read in draft, the lead judgment of my learned brother S. T. HUSSAINI JCA. I agree with the reasoning and conclusion that this appeal succeeds and same is allowed. The judgment delivered by the High Court of Kebbi State on the 14th March, 2018 in suit No.: KB/YR/HC/11CV/2017 is hereby set aside.
Appearances:
Ibrahim Abdullahi, (SAN), with him, Shamsu A. Dauda, Esq. For Appellant(s)
Nura Sahabi, Esq, with him, Amadu Zumaru, Esq, Faruk Abdullahi, Esq, J. S. Ten, Esq, and M. Z. Abdullahi, Esq. For Respondent(s)