MALAM ALI WAZIRIN GWANTU v. ISIYAKU SARKIN YAKI & ORS (2013)

MALAM ALI WAZIRIN GWANTU v. ISIYAKU SARKIN YAKI & ORS

(2013)LCN/6377(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of July, 2013

CA/K/12/2007

JUSTICES

DALHATU ADAMU (PJ) Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

MALAM ALI WAZIRIN GWANTU Appellant(s)

AND

1. ISIYAKU SARKIN YAKI
2. MUSA SARKIN YAKI
3. AHMADU JIRBIN SARKIN YAKI Respondent(s)

RATIO

WHETHER OR NOT THE COURT CAN DRAW INFERENCES FROM THE EXISTENCE OF PROVEN FACTS

Such were legitimate findings and inferences which the Court was permitted to draw, in the circumstances, especially as the evidence of DW2 fully established Respondent’s claim. See the case of KWARA STATE POLYTECHNIC, ILORIN v. SHUTTU (2013) 17 WRN 78 ratio 6: where this Court held, affirming the power of.
“Court to draw inferences in reaching its decisions. In the case of Edokpolor v. Ohenhen (1994) 7 NWLR (Pt. 358) 511; (1994) 7 – 8 SCNJ 500, it was held that a Court will presume the existence of one fact from the existence of proved facts, where such presumption or inference is irresistible, or where there is no other reasonable presumption or inference which fits the facts or situation.”
See also the case of OLORUNKUNLE V. ADIGUN (2012) 6 NWLR (Pt. 1297) 407, held 3, where OKORO, JCA said:
“A Judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences, legitimately drawn from facts in the case, are introduced suo motu. Equally, where a Judge refers to a piece of legislation or rule of Court which assists him to exercise his discretion one way or the other, he cannot be accused of introducing the rule of Court suo motu Ikenta Best (Nig.) Ltd. V. A-G, Rivers State (2008) 22 WRN 1; (2008) 2 SCNJ 152; (2008) 2 – 3 S.C (Pt. 1) 28; (2008) All FWLR (Pt. 417); 2008) 6 NWLR (Pt. 1084) 612 referred to).”PER MBABA, J.C.A.

PROOF OF ROOT OF TITLE IN A CLAIM OF TRESPASS TO LAND

POWER AND RIGHT OF A PARTY IN POSSESSION TO SUE FOR TRESPASS

Put differently, the right and power of one in possession to sue for trespass fails to exist against the owner of a property or one who can prove better title to the property. See the case of SUU V. JOBAK NIG. LTD (2012) 49 WRN 52 at -, where we held:
“In this case Appellant had relied on the right of purchase as per Exhibit 1, to prove his title as well as traditional evidence of his vendor (PW1) who told the Court that he inherited the Land he sold to Appellant from his family, tracing to the founder/original owner-Sule Agbetu. Neither the identity, of the land, nor the root of title was in dispute, as the Respondent had no answer to it. In such circumstances, the law only required the person who could prove a better title to succeed.”
See also the case of ABDULIAHI ALI v. GODDY UGWU (2012) ALL FWLR (Pt. 619) 1078; OKELOLA V. ADELEKE (2004) 13 NWLR (Pt. 890) 307.
In the case of SHUKKA V. ABUBAKAR (2012) 4 NWLR (Pt. 1291) 497, YUKUBU JCA said:
“Trespass to land is founded on exclusive possession of the land in dispute by the party claiming damages for trespass. Where two parties lay claim to being in possession of a disputed land, the law will ascribe possession and/or actual possession of it to the person who proves a better title to it. Trespass in such a situation is at the action of the party who has the title to the land in him. (Armire V. Awoyenu (1972) ALL NLR (Pt. 1) 101; FASORO V. BEYIOKU (1988) 2 NWLR (Pt. 76) 263; OYENEYIN V. AKINKUGBE (2010) 4 NWLR (Pt.1184) 265; EKPAN V. UYO (1986) 3 NWLR (Pt.26) 63; IMAH V. OKUGBE (1993) 9 NWLR (Pt.316) 159; OJUKWU V. OJUKWU (2000) 11 NWLR (Pt. 677) 65 referred to.) (pp.524 – 525, Paras. H-B). PER MBABA, J.C.A.

WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE IN AN ACTION FOR DECLARION OF TITLE TO LAND

Though by law a plaintiff (or counter-claimant) must succeed on the strength of his own case and not on the weakness of the case of the opponent, (See ADFPL V. N.I.W.A. (2012) ALL FWLR (Pt. 611) 1563 held 3), the law is that such plaintiff (counter-claimant) will succeed on minimal of proof and can take advantage of admissions by the Defendant touching on material facts. See UKPO V. IMOKE (2009) 1 NWLR (Pt. 1121) 90 at 144; AGBOOLA V. UBA PLC (2011) ALL FWLR (pt. 574) 74. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant was the plaintiff at the Court below. He filed the suit KDH/KAF/45/98 on 30/9/1998 against the Defendant – JIBRIN SARKIN YAKI (who later died and was replaced by the Respondents) claiming general damages for trespass, in the sum of N75, 000.00, and an order of perpetual injunction from further trespass into a parcel of land, located in North Western outskirt of Gwant Town, which he claimed. In his amended statement of claim, filed on 14/12/2004, the plaintiff claimed in paragraphs 9 and 10, as follows:
“… the sum of N75, 000.00 (seventy five thousand naira) only as general and punitive damages… perpetual injunction restraining the Defendant by themselves or land agents or privies or successors in – title form (sic) any further acts of trespass on the said farm land in dispute” (page 33 of the Records).
Appellant was in possession of the land, at the time of the dispute.
The Respondents, on the other hand, filed a defence and a counter-claim, seeking a declaration of title for them over the disputed land and an order for the Appellant to vacate the land and perpetual injunction.
At the hearing, the Appellant called five (5) witnesses in support of his claim, while the Respondents called three (3).
The Court visited the locus in quo. At the close of the case and addresses by Counsel, the trial Court, in a considered judgment, dismissed the plaintiff’s case and declared title for the Defendants, as per their counter-claim, except in respect of the portion occupied by plaintiff. That was on 29/6/2006, when DAVID S WYOM J; held:
“Judgment is entered in favour of the defendants on their counter-claim in respect of the disputed subject matter as identified by the defendants.
Since it is not disputed by the defendants that the plaintiff had been in possession of portion of the land which he now occupies, that portion shall remain with the plaintiff. The order of perpetual injunction restraining the plaintiff, by himself, agents, privies and successors-in-title whomsoever and howsoever from further trespassing into the disputed farm land is hereby granted.”
(See pages 118 – 119 of the Records),
That is the judgment Appellant appealed against in this appeal, as per the Notice and grounds of appeal, filed on 27/7/2006. He later filed Amended Notice of appeal, with the leave of this Court on 14/1/2010, disclosing 5 grounds of Appeal as follows:
“GROUNDS OF APPEAL
GROUND 1:
The trial judge erred in law and occasion (sic) substantial miscarriage of justice on the plaintiff when he declared title of the disputed land in the Defendants/Counter claimants while the Defendants/Counter claimants did not plead nor prove the boundaries of the disputed land.
PARTICULARS OF ERROR OF LAW
a. It is trite law that a claimant of a disputed land must plead and prove the boundaries of the disputed land.
b. The Defendants/Counter claimants did not plead the boundaries of the disputed land,
c. The Defendant at page 81 of the record of proceedings lines 1 – 3 said “I do not agree with the boundaries as shown by the Plaintiff. The farm land to the East belongs to me. The Ibo man has the building which I sold to him … by the North I share boundary with my senior brother by name Danladi Magaji, by West I am bounded by Adamu Amberon and Boyi Sarkin Yari.”
d. In the judgment at page 111 of the record of Proceedings the trial judge observed “under cross examination DW3 stated that at the time the 1st Defendant gave him a portion of the land to be cultivating he never know how he acquired it. He said he does not know the boundaries of the land in dispute.”
e. In the judgment of the Court, at page 107 line 8 – 11 “Dw1 gave the boundaries of the land as follows; on the North the land is bounded by a Houses and not farms, South is bounded by a stream, East is bounded by a motor Road, of Akwanga Jos, West is bounded by Houses of Anguwan Randa.”
f. In the judgment of Court at page 108 of the record lines 11-14 DW2 said the dispute land is situated in Gwantu and he gave the boundaries of the lands follows, East is bounded by Akwanga to Jos Motor road, South by a river, North is a Primary School, West is bounded by his DW2 farms.”
g. In Page 74 of the record of proceedings line 9-1, DW2 said “the Land in dispute is situating at Numbu….”
GROUND 2:
The trial judge misdirected himself in fact and occasioned substantial miscarriage of justice on the plaintiff when he wrongly evaluated the evidence adduced by the Defendants and reached a perverse decision by entering judgment over the disputed farmland as identified by the Defendants white the evidence of the Defendants contains substantial material contradiction.
PARTICULARS OF ERROR LAW
a. It is a trite Law that a Court has a duty to properly evaluate the evidence led by a party in support of his pleading.
b. It is trite law that a claimant of a disputed land must plead and prove the boundaries of the disputed Land.
c. The Defendants/Counter Claimants did not plead the boundaries of the disputed Land.
d. The Defendants at page 81 of the record of proceedings lines 1 – 5 said “I do not agree with the boundaries shown by the Plaintiff, The farm Land to the east belongs to me, The Ibo Man has the building which I sold to him….. By the North I share boundary with my senior brother by name Danladi Magaji, by West I am bounded by Adamu Amberon and Boyi Sarkin Yaki.”
e. In the judgment at 111 of the record of proceedings the trial judge observed under cross examination DW3 stated that at the time 1st Defendant gave him a portion of the Land to be cultivating he never know how he acquired it. He said he does not know the boundaries of the Land in dispute.”
f. In the judgment of the Court, at page 107 line 8 – 11 DW1 gave the boundaries of the Land as follows; on the North the land is bounded by a Houses and not farms, South is bounded by a stream, East is bounded by a Motor Road, of Akwanga Jos, West is bounded by Houses of Anguwan Randa.”
g. In the judgment of the Court, at page 108 of the record line 11-14 DW1 gave the boundaries of the Land as follows; North is bounded by a Primary School, South ids bonded by a stream, East is bounded by a Motor Road, of Akwanga Jos, West is bounded by Houses of Anguwan Randa.”
h. In page 74 of the record of proceeding lines 9-12 DW2 said “the Land in dispute is situate at Numbu.
GROUNDS 3:
The trial judge erred in law and occasioned substantial miscarriage of justice on the plaintiff when he dismissed his claim and believed his evidence and confirmed title of the portion of the disputed land in the Plaintiff and left some portion of the land in the possession of the Defendants.
PARTICULARS OF ERROR OF LAW
a. It is a trite law that a judgment of a Court can confirm title to a party, dismiss or strike out a claim; not to dismiss the claim and grant the claim over the same subject matter in dispute.
b. In the judgment at page 116 lines 1 – 4 the Court held that “Base on the evidence adduced by the Plaintiff I am left with no alternative than to hold that he has not make (sic) up his case to warrant judgment being entered in his favour and that being the finding of this Court the Plaintiff’s case stands dismissed in its entirely.
c. In the judgment of the Court at page 118 lines 18 – 19 and page 119 line 1 to 2, the Court held that “Since it is not disputed by the Defendants that the Plaintiff has been in possession of portion of the land which he now occupies that portion shall remain with the Plaintiff.”
GROUND 4:
The trial judge erred in law and occasioned substantial miscarriage of justice on the Plaintiff when he dismissed the claim of the Plaintiff and ignored the positive evidence of the Plaintiff’s witnesses and the admission of the Defendants as to the possession of the disputed land by the plaintiff.”
PARTICULARS OF ERROR OF LAW:
a. In the judgment at page 104-106 of the record of proceedings, the Court considered the evidence of the Plaintiff’s witnesses PW2, PW4 and PW5 testified that “…….. the disputed subject matter …….. That it is situated in Gwantu town………It belongs to the Plaintiff … The boundary of the disputed land as North it is bouned by Danlladi Daudu, South by Jibrin Galadima, west by a river and East by Tukura” and it was inherited by the Plaintiff from the Plaintiff’s father over 50 years ago.
b. In the judgment at page 116 lines 1 – 4 the Court held that “Base on the evidence adduced by the Plaintiff I am left with no alternative than to hold that he has not make (sic) up his case to warrant judgment being entered in his favour and that being the findings of this Court the Plaintiff’s case stands dismissed in its entirely.”
c. In the judgment at page 118 – 119 the court entered judgment for the Defendants on their Counter claim by granting title and injunction.
d. In the judgment at page 118 – 119 and 1 – 2 the court held that “since it is not disputed by the Defendants that the Plaintiff has been in possession of portion of the land he now occupies the portion shall remain with the Plaintiff.”
GROUND 5
The judgment is against the weight of evidence.”
Appellant filed his Amended Brief of argument on 26/1/2010, with the leave of Court and distilled three (3) issues for determination, as follows:
“(1) Whether the Lower Court properly evaluated the evidence of the Plaintiff’s witnesses and thereby reached a just and proper decision in dismissing the Plaintiff’s claim.
(2) Whether in the light of the pleadings and the evidence adduced by the defendants the Lower Court was right in entering judgment in favour of the Defendants as per their joint statement of Defence and their Court-claim.
(3) Whether in view of the totality of the evidence before the Court, the Plaintiff is not entitled to judgment.”
The Respondents filed their Brief of argument on 22/11/2010, and the same was deemed duly filed on that date. They distilled a single issue for determination, namely:
“Whether in the entire circumstances of this case, the trial judge properly evaluated the evidence adduced at the trial and reached a just conclusion by dismissing the Appellant’s claim and upholding the counter-claim, in part.”
This Appeal was heard on 18/6/2013, when learned Counsel, on behalf of the parties, adopted their briefs and urged us to hold, as per their respective positions.
Arguing the 1st issue, learned Counsel for the Appellant, BELLO IBRAHIM ESQ., submitted that the Court of Appeal is in a proper position to evaluate the evidence of witnesses at the Lower Court, if it does not involve consideration of the demeanor of witnesses. He relied on the case of AKPAN vs. UBN PLC. (2003) 6 NWLR (pt. 816) 279 at 298; SEISMOGRAPH V. AKPRUOVO (1994) 6 SC 119; FASHANU V. ADEKOYE (1974) 1 ALL NLR (pt. 1) 38; ABUSOMWAN V. MERCANTILE BANK (NIG.) LTD (1987) 3 NWLR (Pt. 60) 196.
Counsel reproduced the evidence of Plaintiff’s witnesses (PW1 to PW5) as appraised by the trial Court and contented that the same were wrongly appraised, because the Court failed to consider and apportion the proper probative value to the evidence, which he said strongly supported and confirmed the Plaintiff’s case; that that, among other things, led to the trial Court’s findings on page 117 lines 13 to 21 and page 118 lines 1 – 10, when he said:
“That the Plaintiff to the best of his (DW3’s) knowledge, has never given part of the disputed land to anybody on loan nor has he been harvesting any of the economic trees thereon, but it has been the defendants. By the above evidence, the defendants relied on traditional history in attempt to defend, and proof (sic) their counter-claim and also act of ownership. The fact that the defendants had been in possession and had been exclusively enjoying the economic trees threes therein, further corroborate the evidence of traditional history led by the first defendant, as DW2.
All these, I must say were facts admitted by the plaintiff’s witnesses under cross examination. By virtue of section 146 Evidence Act the burden of proving ownership against a person in possession lies on the plaintiff who I am afraid was not discharged in this case by him.”
Counsel submitted that there was no where, in the evidence of plaintiff’s witnesses, that they admitted the assertion of the Defendants on their Counter-claim, as held and stressed by the trial Court. Counsel further submitted that the trial Court was under misdirection and misconception, when it held that:
“The Plaintiff’s witnesses, having led evidence under Cross examination adverse to the plaintiff’s case to show that the Defendants are in possession, planted economic trees and are enjoying them, settled third parties on the land unchallenged, sold portion to third parties that are on the land such in the 1940s and litigated with some third parties over parts of the adjacent land, to me are all leading to the truth of Defendants’ ownership and possession of the disputed land.”
Counsel also submitted that the above evaluation of the afore referred piece of evidence does not translate into admission by the plaintiffs; that it does not amount to legally established acts of long possession and ownership; rather, what the above evidence reveals is that the land does not belong to the Defendant, even though he sold it; that, apart from the plaintiff, nobody laid any Claim to the Land other than the Defendant, who is a trespasser; moreso that the plaintiff was in possession of the Land as he and his witness (Magaji Gari Gwantu) gave a space to MTN to erect mast!
Counsel further submitted that the trial judge imported some pieces of statements and made same to be part of the testimony of plaintiff’s witnesses on Cross-examination, when he said:
“…Plaintiff’s witnesses having led evidence under Cross-examination adverse to the plaintiff’s case to show that the Defendants are in possession, planted economic trees and are enjoying them, settled third parties on the land unchallenged sold portion to 3rd parties that are on the land since in the 1940 and litigated with some third parties’ over parts of the adjacent land…” (underlining his).
He submitted that the trial Court even relied on the allegation that the Defendant had litigated over adjacent land with third parties, whereas there was no record of such, Appellant added that the trial Court did not consider the fact that the Defendant did not plead the boundaries of the disputed land in the Counter claim, neither did they admit the boundaries as pleaded by the plaintiff, nor those shown by the plaintiff at the locus in quo.
Counsel urged us to hold that the only valid claim before the trial Court was that of the plaintiff; that the Counter-Claim was imprecise, vague and without boundaries; and that the evidence led by the plaintiff was improperly evaluated, and that led to miscarriage of justice on the plaintiff.
He further said that the findings of the Court as to the portion of land the plaintiff occupied, that since that Defendants did not dispute that, the plaintiff was in possession of same and it remained with the plaintiff, was also evidential of the establishment of the plaintiff’s case,
He urged us to so hold.
On Issue 2, Counsel submitted that the trial judge rightly held on page 116 of the Records of Appeal on the need for the Respondents to prove their case in the Counter-Claim, as per the paragraph 3 (a) of their pleadings, relating to their averment that:
“Evidence shall be led as to its boundaries and acts of features long possession and enjoyment of their various portions, unchallenged,”
That, by so doing in the above averment, the Respondents made the boundaries of the disputed Land an issue before the trial Court; but that the Respondents gave no precise boundaries in support of their Counter-Claim; that contrary to their Claim, the DW1 on page 5 67 -70 of the Records told the Court “The Land was situate in North of Numbu”, that under Cross-examination, said:
“The land is situate at Numbu. On the North, the land is bounded by Houses not farms… the land in dispute belong to the people of Numbu when my father was given the land on loan.”
Thus, Counsel said the Defendants (Respondents), land was not situate in Gwantu Town but in Numbu and belongs to the people of Numbu. Therefore the land in dispute can only belong to the Plaintiff, which land is situate in Gwantu Town. Counsel also referred to the evidence of DW2 and DW3 on the boundaries of the land on pages 74, 79-81, respectively, and said that DW1 gave the boundary to the North of the disputed land as ‘Houses’;
The DW2 said (of same) Primary school; the DW3 said he did not know, and the Defendant said “by the North I share boundary with my senior brother – Danladi Magaji.”
Counsel submitted that “A plaintiff (in this case counter claimants) seeking a declaration of title to land, has primary duty or burden to prove clearly and unequivocally the precise boundaries of the land to which his claim relates.”
ADELUSHOLA VS. AKINDE (2004) 5 SCNJ 235 at 250.
He, particularly, called our attention to the fact the counter-claim did not plead boundaries and that in Defendant’s evidence on page 81 of the Records, he said:
“I do not agree with the boundaries as shown by the Plaintiff. The Farm land to the East belongs to me. The Ibo man has the building which I sold to him… by the North I share boundary with my brother by name Danladi Magaji by West I am bounded by Adamu Amberon and Boyi Sarkin Yaki…”,
While the DW1, as per the findings of the Court on page 107 said:
“On the North the land is bounded by Houses and not farms, South is bounded by a stream, East is bounded by a Motor road of Akwanga – Jos West is bounded by Houses of Akwanga Randa.”
And the DW2 (as per findings of the Court on page 108):
“…the disputed land is situate in Gwantu… East is bounded by Akwanga to Jos Motor road, South by a river! North by a Primary School, West is bounded by his (DW2) farm.”
Counsel urged us to hold that, in view of the above contradictions, in the evidence of Defendants, they failed to establish the boundaries of the disputed land and so could not be said to have proved the counter-claim.
On issue 3, Counsel adopted the Appellant’s argument on issues 1 and 2 above, and urged us to resolve the issue for the Appellant. He urged us to allow the appeal.
Counsel for the Respondent Samuel Atung Esq., (who settled the Brief) argued his lone issue, thus:
He started by urging us to strike out ground 3 of the appeal as no issue was distilled on it, relying on CRBRDA V. SULE (2001) 6 NWLR (Pt. 708) 144
He then said that, because the Respondents had counter-claimed, seeking title, in a case of trespass by the appellant, that title to the land has come to be in issue, and same has to be resolved before any consideration of trespass. He relied on the case of AKPADIAHA V. OWO (2000) 8 NWLR (Pt. 669) 439 at 452- 453:
“Where as in this case a plaintiff claims damages for trespass and injunction and the defendant, alleges that the land belongs to him, the plaintiff in order to succeed, has to prove not only that he was in possession of the land when the trespass was committed on it, but also that his own title to the land in dispute is better than that of the defendant.
This is so because, in the circumstances, title to the land is put in issue. Therefore, in order to succeed, the plaintiff has the burden of proving not only that he was in possession when the alleged trespass was committed by the defendant, but also that his own title to the land in dispute is better than that of the defendant.”
Thus, Counsel submitted that the plaintiff had a duty to prove better title to land by preponderance of evidence; that failure to do so, implied judgment would be given to the Respondents. He relied on the case of ADELEKE V. IYANDA (2001) 6 SCNJ 101 at 120.
He submitted that Appellant failed to prove his root of title, having relied on traditional history; that his case was bound to be dismissed. He relied on the case of KUPOLUYI V. PHILIPS (2001) 13 NWLR (Pt. 731) 736 at 766; DIKE V. OKOLOEDO (1999) 10 NWLR (PT. 623) 359 at 377 – 378.
He submitted that a plaintiff, whose claim for title is founded on traditional history in proof of a claim for declaration of title to land, must plead and establish such facts as:
“(a) Who founded the land;
(b) How he founded the land; and
(c) The particulars of the intervening owners through whom he claims, where therefore the line of succession is not satisfactorily traced and that line of succession has gaps and mysterious linkage or nexus, which are not established, then such line of succession would be rejected. In the instant case, the appellants’ pleadings are plainly defective. They are lacking in all material particulars. They failed to completely state who first acquired the land and how he acquired it. They are also silent on the intervening owners. The result is that the appellants pleaded no facts of traditional history and also led no evidence. The trial Court ought to have dismissed the appellants’ claim …”
See the case of DIKE V. OKOLOEDO (1999) 10 NWLR (Pt. 623).
Following that position of the law, Counsel said, it was therefore not surprising that the trial Court, having admirably evaluated the appellant’s case, came to the inevitable conclusion to dismiss the same, He referred us to pages 112 to 116 of the Record of Appeal, and noted, particularly, the last paragraph of 115 and 1st paragraph of 116.
Counsel stated that since the appellant’s action in the trial Court was for trespass and not declaration of title, to defend the Appellant’s claim, all that the Respondents needed to do was to show that they were in actual possession or that they were entitled to such possession.
He relied on the case of OJOMO V. IBRAHIM (1999) 12 NWLR (Pt. 631) 415 at 423.
Counsel said that the trial Court found, as a fact, that the counter-claim was founded on traditional history and acts of ownership; that it is fairly settled, based on a plethora of authorities, that there are five methods of establishing ownership of land, which are exclusive of each other, such that, where a party pleads two of them, establishing each of them suffices. He relied on the case of ADEOSUN V. JIBESIN (2001) 11 NWLR (Pt. 724) 290 at 306.
The Respondents submitted that Appellant’s feeble attempt to impugn the findings of fact by the trial judge, to the effect that the appellant’s witnesses supported the Respondents’ case, as to acts of ownership, does not hold any water, as the appellant himself, under cross-examination, (as PW3) admitted that there were people with 3 structures on the land and also one person farming in the disputed land and that the Defendant gave them the land!
See page 87 of the Records.
Counsel said that the Appellant made heavy weather of the issue of identity of the land as it relates to the counterclaim.
He submitted that the trial Court, having conducted a visit to the locus in Quo, and during which visit each of the parties identified the boundaries of the land claimed by each, the issue of identity of the land ceased to perplex the Court; that the report of the visit to locus in quo showed clearly that both the Appellant and Respondents were clear on the identity of the land they claimed; consequently, the issue of identity of the land ceased to be of relevance in this appeal. He relied on ODOFIN VS. ONI (2001) 3 NWLR (Pt. 701) 488 at 502 – 503.
Counsel said that, in this case, the trial Court was very careful in his choice of words when he held, in the last paragraph of page 118 of the Records:
“Judgment is entered in favour of the defendants on their counter-claim in respect of the disputed subject matter as identified by the defendants.”
He argued that Appellant had not shown how the above holding of the trial Court affected him or accessioned a miscarriage of justice to him; that what it meant was that the Court gave the Respondents less than what they asked for, which was a declaration of title to the entire land in dispute; that by law the Court can award to a party part of what he asked for, based on evidence. He relied on the case of SIMTON NIG. LTD V. PANIL (2001) 8 NWLR (Pt. 714) 49 at 59.
Counsel further submitted that Appellant did not file any defence to the Counter-claim and did not make any attempt to deny the Counter- claim in his oral evidence in Court; that the legal consequence of that is that the Counter-claim remained unchallenged, and therefore to be established on minimal of proof. UKPO VS. IMOKE (2009) 1 NWLR (Pt. 1121) 90 at 144.
He urged us to resolve the issue in favour of the Respondent, and dismiss the appeal.
RESOLUTION OF ISSUES
The Respondent had observed that Appellant’s ground 3 was not related to any of the issues in this appeal. Appellant’s Amended Notice of Appeal had five (5) grounds of Appeal, but he distilled only three issues for determination, and related none of the issues to any of the 5 grounds of Appeal, formally. The 5 grounds of appeal and the 3 issues have earlier been reproduced in this judgment.
A close look at both (the 5 grounds and 3 issues) would show that the ground 3 of the appeal is hanging and unrelated to any of the issues distilled for determination by the Appellant, In my view, Grounds 1 and 2 of the appeal appear to relate to issue 2; ground 4 to issue 3, and ground 5 to issue 1, (Appellant should not leave the marriage of grounds of appeal to issues to the court, giving the Court extra job of conjecturing which issue should flow from which ground of appeal!)
I shall therefore strike out ground 3 of the appeal, as the same is deemed abandoned by the Appellant, being unrelated to the issues. It is accordingly struck out. See ARIBO V. CBN (2011) 12 NWLR (Pt.1260) 133: AJAOKUTA STEEL CO. LTD. V. ROLE (2012) 53 WRN 37.
It could further be seen that the issues 1 and 3 are all related to evaluation of evidence by the Lower Court as to the case of the Plaintiff, which was dismissed, in part. I shall therefore take them together first, and thereafter, issue 2, which has to do with the decision of the trial Court on the Counter-claim.
Appellant had complained that the trial Court failed to appraise the evidence in favour of the Plaintiff properly, and that the Court wrongly held that the Plaintiff witnesses gave evidence in favour of the defence and admitted facts against the plaintiff; that the Court even imported some statements into the plaintiff’s witnesses evidence, under Cross-examination, when the Court held that:
“Plaintiff’s witnesses.. led evidence, under cross-examination, adverse to the plaintiff’s case to show that the Defendants are in possession, planted economic trees and are enjoying them, settled third parties on the land unchallenged, sold portion to third parties that are on the land since in the 1940s and litigated with some third parties over parts of the adjacent Land..”
Counsel asserted that the plaintiff’s witnesses did not give such testimony.
I think the learned Counsel for the Appellant was unfair to the learned trial judge on that assertion, because, the PW5 (plaintiff’s brother) had told the Court, under cross-examination, that “he did not know who planted the economic trees by the stream and he was aware the Defendant sold some portion of Land to some people and those Lands do not belong to him; that he (PW5) was not around when the Defendant sold the Lands”
He also said, “I have no farm at the disputed Land; I am aware of a case between the Defendant and Jribin Galadima over their portion of Land. It is the same Jibrin Galadima that has land bounded with the undisputed Land (See page 91).
PW1, under Cross-examination, had said:
“I gave evidence in Gwantu Area Court but not in respect of the present disputed farmland. It was between Angulu Ambero v. Garti. It was in respect of palm trees. The palm trees are not in the present disputed farmland, but near it. Angulu was given title to the case in Area Court, Gwantu.
Angulu and defendant are of the same family” (Page 62 of the Record)
PW2 said, under Cross examination:
“The late Chief Gwantu, Usman gave the place where Bala Musa (PW1) and Nuhu Mada built. The Land does not belong to Umaru, the late Chief of Gwantu but his brother. Is more than 20 years that the land was given. The plaintiff did not inform me of anything in respect of the disputed farm land, I am not aware that Danladi Daudu also known as Danladi Magaji, is the elder brother of Jibrin Sarkin Yaki Jibrin Galadima is different with Jibrin Sarkin Yaki, Jibrin Galadima is now dead, I do not know how Jibrin Galadima inherited the farmland, East of the farm is a motor road from Akwanga to Fada Karshi and Jos, I only saw the father of Tanko Tukurah on the farm but do not know how he came by it, I came to testify in view of the communal farming we use to do on the disputed farm.”
(Pages 63 – 64 of the Records)
PW3, (plaintiff) said under Cross-examination.
“There are people with three structures and one person farming in the disputed land. I am told it is the defendant who gave them. I do not know the length of time they have been on the land.” (Page 87)
PW4 (Plaintiff’s brother) said:
“I was not present when the father of the plaintiff deforested the disputed Land …The plaintiff and defendant are Numana by tribe… I have not been to the disputed Land so I will not know if there are economic trees. If there are people with houses and cultivating there I will not know, since I do not go there…”
Thus, even the plaintiff himself and the brothers of the plaintiff (Appellant), who gave evidence, alleging that Appellant inherited the Land, had no firm facts to support their claim; and did not themselves, (apart from Appellant) have land in the area; they admitted the Defendants and members of their family had some Land in the area including adjacent Lands! PW1 admitted previous litigation over some land in the area where the Court granted title to Respondents’ family Angulu Ariber. PW4 admitted Numbu was a tribe and both parties were Numana!
The trial Court was, therefore, not wrong, in my view, in his findings when the held, as he did, on page 118 of the Records:
Such were legitimate findings and inferences which the Court was permitted to draw, in the circumstances, especially as the evidence of DW2 fully established Respondent’s claim. See the case of KWARA STATE POLYTECHNIC, ILORIN v. SHUTTU (2013) 17 WRN 78 ratio 6: where this Court held, affirming the power of.
“Court to draw inferences in reaching its decisions. In the case of Edokpolor v. Ohenhen (1994) 7 NWLR (Pt. 358) 511; (1994) 7 – 8 SCNJ 500, it was held that a Court will presume the existence of one fact from the existence of proved facts, where such presumption or inference is irresistible, or where there is no other reasonable presumption or inference which fits the facts or situation.”
See also the case of OLORUNKUNLE V. ADIGUN (2012) 6 NWLR (Pt. 1297) 407, held 3, where OKORO, JCA said:
“A Judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences, legitimately drawn from facts in the case, are introduced suo motu. Equally, where a Judge refers to a piece of legislation or rule of Court which assists him to exercise his discretion one way or the other, he cannot be accused of introducing the rule of Court suo motu Ikenta Best (Nig.) Ltd. V. A-G, Rivers State (2008) 22 WRN 1; (2008) 2 SCNJ 152; (2008) 2 – 3 S.C (Pt. 1) 28; (2008) All FWLR (Pt. 417); 2008) 6 NWLR (Pt. 1084) 612 referred to).”

Of Course, the plaintiff has the duty to prove his root of title in a claim of trespass to land, where the adverse party claims a declaration of title over the same Land, and where the plaintiff does not admit deriving the right of possession from the adverse party, who claims title to the land. And where the plaintiff founds his claim on traditional history, as done in this case, he has to prove and establish the root of title, tracing it to the original ancestor who deforested the land and how the land, and ownership thereof, devolved to him. See the case of KUPOLUYI V. PHILIPS (2001) 18 NWLR (Pt.731) 736 at 766 – 767, where The Supreme Court held, thus, relying on the case of MOSES OKOYE DIKE AND ORS. V. FRANCIS OKOLOE AND ORS. (1999) 10 NWLR (Pt. 623) 359:
“A plaintiff who seeks declaration of title to land, if he traces his title to a particular person, it is not enough to stop there. He must go further to prove how that person got his own title or came to have the title vested in him, including, where necessary, the family that originally, owned the land In the instant case, it is very clear that the Appellant failed to prove how they came to own the Land in dispute. It is not enough for them to testify only that they own the Land for a long time or time immemorial. They must go to show, from whom the title started and how finally devolved on them.”
-AJIBONA V. KOLAWOLE (1996) 10 NWLR (Pt. 476) 122.
See also the case of DIKE V. OKOLOEDO (1999) 10 NWLR (Pt. 623) 359 at 377 – 375, also cited and relied upon by the Respondent, where, the apex Court, on how to establish by traditional history, held:-
“(a) Who founded the land;
(b) How he founded the land; and
(c) The particulars of the intervening owners through whom he claims,
Where therefore the line of succession is not satisfactorily traced and that line of succession has gaps and mysterious linkage or nexus, which are not established, then such line of succession would be rejected. In the instant case, the appellants’ pleadings are plainly defective. They are lacking in all material particulars. They failed to completely state who first acquired the land and how he acquired it. They are also silent on the intervening owners. The result is that the appellants pleaded no facts of traditional history and also led no evidence. The trial Court ought to have dismissed the appellants’ claim …”
The Respondent submitted that since Appellant’s action was trespass and not declaration of title, all that the Respondent needed to do, to defend the Suit, was to show that they (Respondents) were in actual possession, or they were entitled to possession. They relied on the case of OJOMO vs. IBRAHIM (1999) 12 NWLR (Pt. 631) 415 at 423, where this Court said, in ratio 4:
Trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to retain it and to undisturbed enjoyment of it against all wrong-doers except a person who could establish a better title. Therefore any one other that the true owner, who disturbs his possession of the land can be sued in trespass. (AMAKOR V. OBIEFUNA (1974) 3 SC 67 at 75 referred to.] (P.423, paras, D – E)
Thus, the right of possession of an Appellant and his right/power to sue for trespass exists as long as the true owner or one with better title fails to emerge. Put differently, the right and power of one in possession to sue for trespass fails to exist against the owner of a property or one who can prove better title to the property. See the case of SUU V. JOBAK NIG. LTD (2012) 49 WRN 52 at -, where we held:
“In this case Appellant had relied on the right of purchase as per Exhibit 1, to prove his title as well as traditional evidence of his vendor (PW1) who told the Court that he inherited the Land he sold to Appellant from his family, tracing to the founder/original owner-Sule Agbetu. Neither the identity, of the land, nor the root of title was in dispute, as the Respondent had no answer to it. In such circumstances, the law only required the person who could prove a better title to succeed.”
See also the case of ABDULIAHI ALI v. GODDY UGWU (2012) ALL FWLR (Pt. 619) 1078; OKELOLA V. ADELEKE (2004) 13 NWLR (Pt. 890) 307.
In the case of SHUKKA V. ABUBAKAR (2012) 4 NWLR (Pt. 1291) 497, YUKUBU JCA said:
“Trespass to land is founded on exclusive possession of the land in dispute by the party claiming damages for trespass. Where two parties lay claim to being in possession of a disputed land, the law will ascribe possession and/or actual possession of it to the person who proves a better title to it. Trespass in such a situation is at the action of the party who has the title to the land in him. (Armire V. Awoyenu (1972) ALL NLR (Pt. 1) 101; FASORO V. BEYIOKU (1988) 2 NWLR (Pt. 76) 263; OYENEYIN V. AKINKUGBE (2010) 4 NWLR (Pt.1184) 265; EKPAN V. UYO (1986) 3 NWLR (Pt.26) 63; IMAH V. OKUGBE (1993) 9 NWLR (Pt.316) 159; OJUKWU V. OJUKWU (2000) 11 NWLR (Pt. 677) 65 referred to.) (pp.524 – 525, Paras. H-B)
Appellant’s Counsel had, in the Brief, made a heavy weather of the findings of the Court below, relating to the evidence of the Plaintiff’s witnesses, under cross examination. But the Appellant never, specifically, appealed against any of the findings Counsel complained about. Therefore such arguments go to no issue in the appeal and are discountenanced.
I therefore resolve issues 1 and 3 against the Appellant.
On the issue 2, whether, in the light of the pleadings and evidence adduced by the Defendants, the Lower Court was right in entering judgment for the Defendant as per the counter-claim, Appellant had referred to page 116 of the Records of Appeal, where the learned trial judge, rightly, held that:
“The counter-claim, being a separate independent and distinct action, must be proof (sic) by the counter claimant, before judgment can be obtained on the counter claim, see JERIC NIGERIA VS. UBN PLC (SUPRA) …”
The trial Court had made reference to the paragraph 3(a) of the Defendant’s Joint Statement of Defence (page 19 of the Records), where the counter-claimant pleaded:
“That they are the beneficial owners of the disputed farmland by way of inheritance and duly shared by lawful hair to their late Father Sarkin Yaki.
Evidence shall be led as to its boundaries and acts or features of long possession and enjoyment of their various portions, unchallenged.”
It was Appellant’s submission that the Respondents therefore made the boundaries of the disputed land an issue before the trial Court, but that they gave no precise boundaries in support of their counter-claim. Counsel also relied on ADELUSHOLA V. AKINDE (2004) 5 SCNJ 235 at 250, to say that:
“A plaintiff (in this case counter-claimant) seeking a declaration of title to land has primary duty or burden to prove clearly and unequivocally the precise boundaries of the Land to which his claim relates.”
Appellant’s argument on this issue centered on alleged inability of the Respondents to trace the boundaries of the land.
I have already reproduced the evidence of the Respondents witnesses, relating to the way each of them described the Land. As observed by the Appellant’s Counsel, the Respondents were not uniform in the way each of them described the boundaries of the Land in dispute, at the West. I do not, however, think there was material differences in the way the Defence witnesses described the boundaries of the Land. For instance, the DW3 said:
“The boundaries of the disputed Land, from the South is stream. From North is bounded by Primary School, Gwantu… From East is the motor Road from Akwanga to Jos. West is bounded by another Stream …” (Page 74). On page 71 he had said “West is bounded by my farm after crossing the stream”
DW1 said”
“On the North the land is bounded with Primary School.
South it is bounded with a stream. East is bounded by Motor Road of Akwanga – Jos. West is bounded by Houses of Angwan Randa …” (page 67)
The parties were alleged to have given conflicting description of the boundaries at the locus in quo, but those appeared not to be formal evidence, as no formal conduct of Court proceedings was done at the locus in quo, and so it would be wrong to place strong probative value on the report allegedly taken at the locus in luo on pages 80-81 of the Records, The law is trite and strict on how evidence should be taken, on visit to the locus in quo. See the case of ETUKUDO AND ANOR. V. UDOAKAGHA (2012) LPELR – 9471 (CA). And the visit is only necessary, if the Court feels it will get better grasp of the evidence before him, already adduced in Court. EZEOKEKE V. UGA (1962) 1 ALL WLR (Pt.4) 482; NWANKPU V. EWULU (1995) 7 NWLR (Pt. 407) 269.
The report allegedly made at the locus in quo in this case on pages 80 and 81 of the Record can therefore not be confused with the creditable evidence recorded on the identity and description of the land by the parties, which left nothing in doubt about the identity of the land in dispute, as the parties were agreed on the particular land disputed by them, though they described the boundaries by different terms and features.
The Respondent’s Counsel had argued that each party had clearly identified the boundaries of the land they claimed and so the identity ceased to perplex the trial Court.
He relied on the case of ODOFIN VS. ONI (2001) 3 NWLR (Pt. 701) 488 at 502 – 503.
“…Of course, where both parties are familiar with or know the land in dispute the question of its identity or certainty will cease to perplex the trial Court, so also the appellate Court, and neither party will be allowed to place a clog on the wheel of justice, by mischievously raising the issue of identity in order to becloud what is other wise a piece of land that is well’97known to both parties.”
In this case Respondents’ Counsel submitted that the trial Court was even careful in his selection of words, which showed it was very clear on the identity of the land he based his judgment, when he said:
“Judgment is entered in favour of the defendants on their counter-claim in respect of the disputed subject matter as identified by the defendants.”
In doing so, the trial Court excluded the portion of land which the plaintiff occupied (which it said remained with the plaintiff)!
That none of the parties appealed against that decision, allowing the Appellant to retain the portion of land he occupied/occupies, further shows, the identity of the land on which the judgment was based was clear and known to the parties! In the case of SHUKKA V. ABUBAKAR (2012) 4 NWLR (Pt. 1291) 497 Ratio 2, this Court held:
“A finding against which there is no appeal remains binding and conclusive” per YAKUBU JCA
Appellant’s ground 3 which would have contested that decision of the trial Court, indirectly, was abandoned by the Appellant, as he formulated no issue on it, and the same was struck out.
I do not, therefore, think the Appellant can complain about the identity or certainty of the land in dispute on which the judgment pertained, in the absence of any appeal, by any of the parties, against the decision allowing the Appellant to keep the portion he occupied, while the Respondents were awarded title to the disputed land.
While, the law abhors granting a party what he did not ask for, or more than what he asked for, the law protects an award of part or a portion of what was sought by a party, if the evidence, adduced, permits such rational dispensation by the trial Court, See the case of SIMTON NIG. LTD V. PAMIL (2001) 8 NWLR (Pt. 714) 49.
It is also in evidence that Appellant did not file any defence to the counter-claim of the Respondent. By law, therefore, Appellant did not challenge the averments in the counter-claim relating to how the Respondents had the land, the boundaries thereof and all the other pleadings, which the evidence of DW2 clearly outlined.
Though by law a plaintiff (or counter-claimant) must succeed on the strength of his own case and not on the weakness of the case of the opponent, (See ADFPL V. N.I.W.A. (2012) ALL FWLR (Pt. 611) 1563 held 3), the law is that such plaintiff (counter-claimant) will succeed on minimal of proof and can take advantage of admissions by the Defendant touching on material facts. See UKPO V. IMOKE (2009) 1 NWLR (Pt. 1121) 90 at 144; AGBOOLA V. UBA PLC (2011) ALL FWLR (pt. 574) 74.
I resolve the issues against the Appellant and hold that the Appeal is without merit. It is accordingly dismissed.
Parties to bear their respective costs.

DALHATU ADAMU, J.C.A.: I have read the judgment just delivered by my learned brother Mbaba JCA. I agree with his reasoning and the conclusion he reached that all the issues have been resolved against the appellant and the appeal is therefore without merit. It is accordingly dismissed also by me. The parties are to bear their respective costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my Lord, Honourable Justice Ita George Mbaba, JCA. His Lordship has considered and meticulously resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions therein. I have nothing more to add.

Appearances

Bello Ibrahim Esq., and A.A. Sadeeq Esq.For Appellant

AND

Samuel Atung Esq.For Respondent