MAMMAN & ORS v. TUKURA & ORS (2021)

MAMMAN & ORS v. TUKURA & ORS

(2021)LCN/15081(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, March 17, 2021

CA/MK/111/2015

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

DANGANA MAMMAN 2. SANI SULE 3. ISAAC E. UDOFIA (TRADING UNDER THE NAME & STYLE OF UVIA VENTURES) APPELANT(S)

And

MANASSEH A. TUKURA 2. CALEB A. TUKURA 3. ZEPHANIAH ANYITOMIZAYI TUKURA (SUING FOR THEMSELVES AND AS REPRESENTATIVES OF THE FAMILY OF TUKURA ANYITOMIZAYI MWAMWAWE OF KURAPE VILLAGE, KARU L.G.A NASARAWA STATE) RESPONDENT(S)

RATIO

HOW IS A CIVIL CLAIM DETERMINED

Generally, a civil claim is determined on the preponderance of evidence and the burden of proof oscillates, see the case EYA & ORS V. OLOPADE & ANOR (2011) LPELR-1184 (SC) wherein the apex Court held thus: “The law is trite that civil suits are decided on preponderance of evidence and balance of probabilities. See Elias v. Omo-Bare 1982 5 SC. 25, Odulaja v. Haddad 1973 11 SC. 357, and Woluchem v. Gudi 1981 5 SC. 291.”Per MUKHTAR, J.S.C See also the following cases OBULOR & ANOR V. OBORO (2001) LPELR-2196(SC); APENA & ANOR V. AILERU & ANOR (2014) LPELR-23305. And UNION BANK V. RAVIH ABDUL &CO. LTD (2018) LPELR-46333(SC) wherein the apex Court held thus: “… This is because in civil suits, unlike criminal cases, the burden of proofs keeps oscillating among the parties. The Evidence Act 2011 says it all in Sections 131-134. For the purpose of burden of proof in civil suit, the Act states thus: 131. “(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Per BAGE, J.S.C See also the cases of OKOYE & ORS V. NWANKWO (2014) LPELR-23172(SC) and BULET INT’L (NIG) LTD & ANOR V. OLANIYI & ANOR (2017) LPELR-42475 (SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW REGARDING WAYS BY WHICH TITLE TO LAND MAY BE PROVED

There are 5 settled ways of proving title to land namely: i. Traditional evidence ii. Production of title documents iii. Acts of selling, leasing, renting out all or any part of the land or farming on it, or a portion of it. iv. Acts of long possession and enjoyment of the land v. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See the following cases AJIBOYE V. ISHOLA (2006) LPELR-301(SC); ODUNUKWE V. OFOMATA & ANOR (2010) LPELR-2250(SC); OWHONDA V. EKPECHI (2003) LPELR-2844(SC) and THOMPSON & ANOR V. AROWOLO (2003) LPELR-3240(SC). A Claimant is expected to plead and prove just one of the methods to succeed; he could also prove more than one method. PER YARGATA BYENCHIT NIMPAR, J.C.A.

BURDEN PLACED ON A PARTY SEEKING A DECLARATORY RELIEF

It is trite that a declaration is not made on the admission of the opposite party or on default of pleadings. A party seeking a declaratory relief must present evidence that satisfies the Court before such an order can be made, see the case of ALIUCHA & ANOR V. ELECHI & ORS (2012) LPELR-7823 (SC) wherein the apex Court held thus: “…the law is indeed well settled that in such claims for declaratory reliefs … the onus remains on the petitioners to prove and establish their claims on their own evidence without relying on the weakness of the case of the Respondents. See Nwokidu v. Okanu (2010) 3 NWLR (Pt.1181) 362; Ekundayo v. Baruwa (1965) 2 All NLR 211 and Dantata v. Mohammed (2000) 7 NWLR (Pt.664) 176.” Per MOHAMMED, J.S.C. And the case of OGUNYEMI & ORS V. SONEYE & ANOR (2018) LPELR-44877(CA) wherein the Court held thus: “…Thus, for a party seeking a declaratory relief to succeed, he has to adduce sufficient cogent and credible evidence which must satisfy the Court that he is entitled to the relief. Declaratory reliefs are therefore not granted in the absence of evidence, not even on the admission of the advisory. Generally therefore, the Plaintiff or Claimant who seeks the declaratory relief must rely on the strength of the evidence adduced by him, although in deserving circumstances, the weakness of the Plaintiff’s case may serve to strengthen the claim. See Umesie v. Onuaguluchi & Ors (1995) 9 NWLR (pt. 421) 515; Onovo & Ors v. Mba & Ors (2014) 14 NWLR (pt.1427) 391; Ogolo v. Ogolo (2006) 5 NWLR (pt. 972) 163 and Okonkwo & Ors v. Okonkwo & Ors (2010) 14 NWLR (pt. 1213) 228. See also Obawole & Anor v. Williams & Anor (1996) 10 NWLR (pt. 477) 146.” Per TSAMMANI, J.C.A
See also the cases of DUMEZ (NIG) LTD V. NWAKHOBA & ORS (2008) LPELR-965 (SC) and MOHAMMED V. WAMMAKO & ORS (2017) LPELR-42667(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER THE PLAINTIFF MUST ESTABLISH THE PROOF OF HIS GRANTOR’S ROOT OF TITLE, WHERE THE VALIDITY OF HIS GRANTOR’S TITLE HAS BEEN CHALLENGED

… he must establish the root of his title, see the case of ALLI & ANOR V. ALESINLOYE & ORS (2000) LPELR-427(SC) wherein the apex Court held thus: “…as a plaintiff in the suit, must not only establish his title to such land, he must also satisfy the Court as to the title of the person or source from whom he claims. He cannot totally ignore the validity of his grantor’s title where this has been challenged and concentrated only on his own title to such land as he would not have acquired a valid title to land if in fact his grantor at all material time has no title thereto. See Mogaji and others v. Cadbury Fry (Export) Ltd. (1985) 2 NWLR (Pt. 7) 393. “Per IGUH, J.S.C And the case of TERIDOM (NIG) LTD V. CAMP LAVET (NIG) LTD & ORS (2018) LPELR-43893(CA) wherein the Court held thus: “… The position of the law is that once a party pleads and traces his root of title to a particular person, and that averment is challenged, he must establish how that person from who he claims his root of title came to have title invested on him. That means, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land; Adesanya v Aderonmu (2000) LPELR-145(SC), (2000) 6 SC (PT 11) 18; Anukam v Anukam (2008) 1-2 SC 34; Nneji v Chukwu (1996) 10 NWLR (PT 478) 265; Odofin v Ayoola (1984) LPELR-2227(SC); Ngene v Igbo (2000) 4 NWLR (PT 651) 131, (2000) LPELR-1987(SC). Ayanwale vs. Odusami (2011) LPELR-8143 (SC)… Accordingly, the plaintiff, to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case the defendant did not concede the ownership of the land by the plaintiffs grantors but expressly denied the same. See Mogaji & Ors v. Cadbury Fry (Export) Ltd.(1985) 2 NWLR (pt. 7) 393.” The Appellant, from these judicial pronouncements, was expected to plead and adduce evidence of details of his root of title.” Per OTISI, J.C.A See the following: NGENE V. IGO & ANOR (2000) LPLER-1987(SC) and ANUKAM V. ANUKAM (2008) LPELR-500(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER EVIDENCE HAS TO BE PRESENTED IN SUPPORT OF THE PLEADING

Evidence has to be presented in support of the pleading, because on its own, pleadings are not evidence and cannot be used to prove a claim, see HELP (NIG) LTD V. SILVER ANCHOR (NIG) LTD (2006) LPELR-1361(SC) where the apex Court said: “It must be said that pleadings in themselves cannot constitute evidence. Mere averment without evidence in proof of the facts pleaded is no proof of the facts averred therein when they have not been admitted. See Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 610 and Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578 at 590. If a party to an action fails to or does not lead evidence in support of the averments in his pleading, the averments would be taken as having been abandoned.” Per KATSINA-ALU, J.S.C. And also FCDA V. NAIBI (1990) LPELR-1262(SC) which held: “I think it is necessary to refer to some well settled and now trite principles of pleadings in order to resolve this matter. Pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding his general traverse. See Hutchful v. Biney (1971) I All N.L.R. 268; UDC v. Ladipo (1971) I All N.L.R. 102; J.O.O.Imana v Robinson (1979) 3-4 S.C.1 at 9-10. It is also settled that in some cases, such as cases of demurrer, the defendant need not lead any evidence. He is in such a case taken to accept all the facts as established by the plaintiff but perhaps relies on some point of law. See Fadare v Attorney-General of Oyo (1982) 4 S.C.1.”Per NNAMANI, J.S.C See the following cases IWUEKE V. IMO BROADCASTING CORPORATION (2005) LPELR-1507(SC); OFEM & ORS V. USANG (2017) LPELR-43606(CA) and ADDEH V. ONAKOMAIYA (2016) LPELR-41644(CA). PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW ON THE DUTY OF THE PLAINTIFF TO CLEARLY IDENTIFY THE LAND HE CLAIMS

… the general rule is for the Plaintiff to clearly identify the land he claims and he can do this in two ways, either by oral evidence or by a survey plan, see OGUN V AKINYELU (2004) LPELR-2319(SC). However, where no party is claiming lack of knowledge of the land in dispute and where both sides are clear about the land in dispute and not ignorant of the location, the burden on the Claimant is discharged, see ATANDA V ILIASU (2012) LPELR-19662(SC) which held thus: “Generally, a Plaintiff’s claim for declaration of title to land and/or injunction pursuant to claim for damages consequent upon trespass by the Defendant succeeds only where the identity of the land in respect of which the reliefs are sought is certain. However, where the identity of the land is not in issue in the sense that parties know exactly the identity of the land, the subject-matter of the dispute between them, the requirement that the plaintiff and or parties prove(s) the identity of the land ceases to be a necessity. See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 42 352 SC Okonkwo v. Adigwu (1985) 1 NWLR (pt. 4) 694. Maberi v. Alade (1987) 2 NWLR (Pt. 55) 101.” PER RHODES-VIVOUR, J.S.C
See also the following: OGUN V. AKINYELU & ORS (2004) LPELR-2319(SC) and ADELUSOLA & ORS V. AKINDE & ORS (2004) LPELR-120(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW REGARDING THE STANDARD OF PROOF REQUIRED WHERE ALLEGATION OF CRIME IS DIRECTLY IN ISSUE IN ANY CIVIL OR CRIMINAL PROCEEDINGS

The Appellants in their pleadings, statement of defence, averred that Exhibit MT is a forgery. The law requires a party to go beyond pleadings and to prove such allegation. The allegation being criminal is required to be proved beyond reasonable doubt as stipulated by Section 135 of the Evidence Act, 2011 and as Ogunbiyi, JSC said in AGI V PDP & ORS (2016) LPELR-42578(SC) thus: “The law is well settled that where allegation of crime is directly in issue in any civil or criminal proceedings, it must be proved beyond reasonable doubt and the onus of proof is on the person who asserts. See Section 135(1) and (2) of the Evidence Act. See also Omoboriowo v. Ajasin (1984) 1 SC NJ 108; Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544 and Arebi v. Gbabiyo (2008) 2 LR ECN 467 at 489.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

MEANING OF FORGERY

Forgery by every definition is a criminal allegation and it was defined in NGADI V FRN (2018) LPELR- 43636(CA) as follows: “By the definition of forgery, it includes making a false document or writing and altering a genuine document or writing in any material part, either by subtraction or addition that includes of date, attestation, seal or other material matter.” Per GARBA, J.C.A (as he then was). PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHEN WILL AN APPELLATE COURT INTERFERE WITH EVALUATION OF EVIDENCE DONE BY THE TRIAL COURT

The law is settled that the Appellate Court would ordinarily not interfere with evaluation of evidence done by the trial Court; the primary duty of evaluation of evidence is that of the trial Judge who had the opportunity of seeing the witnesses in the witness box as they testified in chief and under cross examination. However, the Appellate Court will interfere where the evaluation is not properly done and where the decision is perverse. A perverse decision simply means persistent in error, different from what is reasonable or required and against weight of evidence. A decision may be perverse where the trial Judge took into account matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious, see ATOLAGBE V SHORUN (1985) LPELR-592(SC); ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588(SC) and STATE V. AJIE (2000) LPELR-3211(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering The Leading Judgment): This Appeal is against the decision of the High Court of Nasarawa State No. 2 sitting at New Karu delivered by HON. JUSTICE ROSE G. SOJI on the 30th September, 2014 wherein the lower Court entered judgment against the Appellants. The Appellants being dissatisfied with the judgment, filed a Notice of Appeal dated 15th December, 2014 setting out 3 grounds of Appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. The suit commenced by a writ of summons and a statement of claim issued on 11th day of April, 2011 and the Plaintiffs amended their joint statement of claim on the 27/3/2012. The Defendants filed their joint statement of defence and also joined the 3rd Appellant who later filed a counterclaim. The Plaintiffs filed a reply to his counterclaim. The Plaintiffs claim in their amended statement of claim against the Defendants jointly and severally as follows:
a. A DECLARATION that the Plaintiffs are the customary owners of all the vast piece of land in dispute being and situate at Gbezebidnakpa, Kurape

village along Kurape-Rafin Kwara Road, Karshi Development Area, Karu LGA Nasarawa State measuring about 16.66 Hectares of land.
b. AN ORDER of perpetual injunction restraining the Defendants, their agents, servants, privies, workman or as however so described from entering and/or doing anything or authorizing the doing of anything on the land in dispute being the Plaintiffs’ land.
c. A DECLARATION that the 1st & 2nd Defendants not being the owners of the above referred disputed land, cannot pass a valid title to the 3rd Defendant (Nemo dat Quot non habet).
d. AN ORDER setting aside and or declaring null and void the sale of the Plaintiffs’ land situate Gbezebidnakpa, Kurape village along Kurape-Rafin Kwara Road, Karshi Development Area, Karu LGA Nasarawa State measuring about 16.66 Hectares by the 1st and 2nd Defendants to the 3rd Defendant.
e. N2,000,00.00 (Two Million Naira) as General Damages for trespass.
f. N2,000,00.00 (Two Million Naira) as Special Damages for trespass.

The Counterclaim of the 3rd Appellant was also dismissed as the 3rd Appellant failed to prove same in any way known to law. The 1st and 2nd

Defendants from whom the 3rd Defendant purportedly bought the land and other surrounding lands in issue did not counter claim and could not establish how they got their title to any part of the land issue.

Issues were joined in pleadings and the matter went to full trial with parties calling witnesses in proof of their respective pleading. After full consideration, the Court below entered judgment against the Appellants, thus the appeal.

The Appellants’ brief settled by SAMBO I. VONGJEN, ESQ., is dated 21st day of January, 2019 and filed on the 22nd day of January, 2019 but deemed on the 24th January, 2019 and it distilled 3 issues for determination as follows:
1. Whether given the pleadings and the evidence adduced by the Plaintiffs the trial lower Court properly evaluated evidence and was right in entering judgment declaring title in their favour.
2. Whether trial lower Court did not err in law and misdirected itself when it held that the Plaintiffs proved their case to be entitled to judgment for declaration of title.
3. Whether the trial Court was not perverse in its findings and/or judgment against the Defendants (now Appellants).

The Respondents’ Brief settled by C. J. ONUEGBU, ESQ., is dated 9th April, 2019 and filed on the same day. It was deemed on the 21st of April, 2019 and 1 issue was formulated by the Respondent, thus:
Considering the facts before the Court and the evaluation of evidence in the matter, whether the lower Court was not right to have entered judgment in favour of the Plaintiffs/Respondents

APPELLANTS’ SUBMISSION
ISSUE ONE
The Appellants argued that in civil cases, the burden of proof is on the preponderance of evidence and more particularly where the Plaintiff seeks declaration of title to land, the Plaintiff must succeed on the strength of his own case and not the weakness of the Defendant’s case, except where it supports his case, citing AJIBOYE V. ISHOLA (2006) 5 JNSC (PT. 20) 655 and ADEDEJI V. OLOSO (2007) 4 JNSC (PT. 40) 405. It is trite that he who asserts must prove and until a Plaintiff discharges the burden or the onus placed on him by law and in practice, the burden does not shift to the Defendant, relied on OJO V. GHARORO (2006) 5 SCJN (PT.17) 86. They argued that it is settled law that there are

five ways of proving title to land to wit:
i. Traditional evidence
ii. Production of title documents duly authenticated
iii. Acts of selling, easing, renting out all or any part of the land or farming on it, or on a portion of it.
iv. Act of long possession and enjoyment of the land.
v. Proof of possession connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

The Appellants cited the following case AJIBOYE V. ISHOLA (2006) 5 JNSC (PT. 20) 655; IDUNDUN V. OKUMAGBA (2002) 20 WRN 127; ALADE V. AWO (1975) 4 S.C. 215; NWOKOROBIA V. NWOGU (2009) 50 WRN 1; ODUTOLA V. SANYA (2008) ALL FWLR (PT. 400) 780 in support. The Appellants submits that a plaintiff can succeed upon proving any one of the ways, in this case by traditional history, relied on JIWUL V. DIMLONG (2003) 9 NWLR (PT. 824) 154; ONANUBI V. OGUNFOLU (2009) ALL FWLR (PT. 496) 1926. Also, the Appellants submits that in discharging the burden of proof, the Plaintiff must prove by credible evidence the precise land in respect of which he seeks such declaration with

certainty and not by mere conjecture, as held in OTANMA V. YOUDUBAGHA (2006) 5 JNSC (PT. 17) 161; OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PT. 95) 26; ADESANYA V. ADERONMU (2000) 9 NWLR (PT. 672) 370; AYANRU V. MANDILAS (2007) 4 SCNJ 388 AT 392.

The Appellants argued also that the following were the issues that emerged from the totality of the evidence and the visit to the locus in quo; thus:
1. The Plaintiff alluded to the fact that the land in dispute was rented to the 1st Defendant’s father sometime in 1990’s after they were resettled to give way for the FCT.
2. It is a fact which can be judicially noticed of that resettlement for the acquisition of land for the FCT was done in the 1980’s and the Respondent alleged that Plaintiffs failed to lead evidence to show how the 1st and 2nd Defendant trespassed the other adjoining land, since the total area sold by the 1st and 2nd Defendants adds up to only 9.13 Hectares
3. That the Plaintiffs failed to call boundary witnesses but at the visit, those who shared boundary with the 1st and 2nd Defendants testified. That the Plaintiff failed to prove that any portion of land in dispute was rented to the 1st Defendant’s father as Exhibit MT is clearly a made-up document.

The Appellants submits that the Respondents made a lame assertion that the 1st Appellant/Defendant is a customary tenant to them by virtue of a forged tenancy agreement which is without basis. That the Plaintiffs did not plead the facts with respect to boundary features nor called any of the boundary witnesses. Also, PW2 who is the Village/District Head told the Court that he did not sign the witness statement subscribed to him, the Plaintiff who could not execute an Agreement with the 1st Defendant wants to impress on the Court that they had such agreement with his children. They submitted that it is trite that facts admitted need no further proof and in the absence of a reply at the instance of the Plaintiffs at the lower Court, the new issues raised in the joint statement of Defence and Counterclaim are deemed admitted. Cited PUNCH (NIG) LTD V. JUMSUM (NIG) LTD (2010) 36 WRN 93; NDAYAKO V. DANTORO (2004) 28 WRN 1; ADEKUNLE V. ROCKVIEW HOTEL LTD (2004) 4 NWLR (PT. 862) 161. The Appellant states that the Respondents have a duty to deny the material averments that

state the contrary on such material facts. They argued that every general traverse is bad and incurable as far as it does not join issues as held in PUNCH (NIG) LTD V. JUMSUM (NIG) LTD (2010) 36 WRN 93 and the lower Court failed to properly evaluate the pleadings and evidence adduced at the trial in making its findings. Most devastating to the Plaintiffs’ case is the fact that no relief for forfeiture of the purported customary tenancy with the 1st Defendant which they want the lower Court to believe that there was a Tenancy relationship created by Exhibit MT. This makes their evidence of no probative value. The law does not permit evidence which is of no probative value to be relied or acted upon by a party, or the Court as held in OKOKO V. DAKOLO (2006) 6 JNSC (PT. 21) 54; ROCKONOH PROPERTY LTD V. NITEL PLC (2001) 7 SC (PT. 3) 154. The Appellants avers that the Plaintiff never alluded to the existence of the parcels land which belongs to Laraba or Ladi Gado as ever sharing boundary with the land in dispute, this was a calculated attempt to mislead the Court and to circumvent the course of justice. On the other hand, the Defendants alluded to and led

justifiable evidence as to those persons they share boundary with correctly. On the strength of this authorities OTANMA V. YOUDUBAGHA (2006) 5 JNSC (PT. 17) 161; OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PT. 95) 26; ADESANYA V. ADERONMU (2000) 9 NWLR (PT. 672) 370; AYANRU V. MANDILAS (2007) 4 SCNJ 388 AT 392, the Plaintiff’s case deserves to and liable to be dismissed by the lower Court and the Appellants urge this Honourable Court to resolve issue one in their favour.

ISSUE TWO
The Appellants contends that the lower Court erred in law and misdirected itself in finding that the Respondents were entitled to judgment by shifting the burden of proof from the Respondents to the Appellants. The joint Statement of Claim showed the Respondents could not lead evidence as to boundary witnesses and boundary features nor showed how they became owners of the land but led evidence of long genealogy without more. The trial Judge relied on fabricated tenancy agreement to unjustifiably enter judgment for the Plaintiffs. That even Exhibit MT did not show the size of the land given to the 1st Appellant as tenant and who signed as witness(es) for the purported

tenant. The Appellants submits that the 1st Appellant denied the said document and stated that he did not sign Exhibit MT and was never contradicted under cross-examination (See P. 572 of records). Also that, the Respondent failed to call any of their purported witnesses to Exhibit MT. The lower Court formed an opinion about a witness; PW2 (Habu Diye) who did not testify at all because he said he never signed the witness statement on oath (see p. 604-606 of records). That Exhibit MT is not a conclusive document as the site plan which the lower Court relied upon heavily to substitute for evidence was capriciously made (See p. 353 of record). The Court cannot make a case for a party against his opponent; it can only act on admissible evidence and no more. The Appellant urge the Court to resolve issue 2 in favour of the Appellants.

ISSUE THREE
The Appellants argued that it is trite that an Appellate Court will not readily interfere with such finding of facts, except such findings are shown to have been founded by the trial Court upon the application of wrong principles of law or where it erroneously evaluates the evidence or reaches a wrong conclusion

which is not supported by evidence on record or even when it evaluated the evidence but came to a wrong conclusion on the established facts. Citing OLANIYAN V. FATOKI (2013) 37 WRN 36; ERINLE V. ALUKO (2014) 9 WRN 77; OGUNLEYE V. ONI (1990) 2 NWLR (PT. 135) 745; YARO V. AREWA CONSTRUCTION LTD & ORS (2007) 16 NWLR (PT. 1063) 333; AKEREDOLU V. AKINREMI (1989) 3 NWLR (PT. 108) 164; OKO V. NTUKIDEM (1993) 2 NWLR (PT.274) 124 and FAGBENRO V. AROBADI (2006) 19 WRN 104 in support. When a decision in law is said to be perverse, it occasions a miscarriage of justice and the Appellate Court is empowered to re-evaluate the evidence adduced at trial and draw inferences from it as in the instant case. The Appellants relied on OLANIYAN V. FATOKI (2013) 37 WRN 36; ASANIKE V. AKINLEYE (2014) 6 WRN 107; YARO V. AREWA CONSTRUCTION LTD & ORS (2007) 16 NWLR (PT. 1063) 333; AKEREDOLU V. AKINREMI (1989) 3 NWLR (PT. 108) 164. The Appellants alleged that the trial Court just reproduced the evidence and the addresses of Counsel to the parties and entered judgment in favour of the Respondents. They also state that their contention is that, if the trial Court had properly

evaluated the evidence and ascribed probative value to them, it ought to have found for and entered judgment for the Appellants. The Appellants urge this Court to hold that this appeal succeeds in its entirety and enter judgment for the Appellants by setting aside the judgment of the lower Court and also granting the 3rd Appellant’s Counterclaim.

RESPONDENTS’ SUBMISSION
ISSUE ONE
The Respondents argued that it is the duty of the Respondents to defend the judgment appealed against as held in ADEFULU V. OYESILE (1989) 5 NWLR (PT. 122) 377; C.R.S.W.B V. N.C. ENG. LTD (2006) 13 NWLR (PT. 998) 589; FASAKIN V. SIWOKU (2009) 16 NWLR (PT. 1167) 305. The Respondents argued that the whole appeal is replete with misleading facts about the judgment of the lower Court and the obvious position of laws on the issues considered before the trial Court. It is trite that a party is not allowed to change his case as he wishes at any stage of the hearing as held in I.M.N.L. V. PEGOFOR IND. LTD (2003) 15 NWLR (PT. 947) 1. What the Appellants did in their brief is to change the entire case canvassed at the lower Court before the Court of Appeal which the

apex Court discourage such attitude. The main issue canvassed by the Appellants is “whether the lower Court was not perverse in entering judgment against the Appellants in the light of the pleadings and evidence before it”. The Respondents submitted that the issue for determination distilled by the Appellants did not challenge the lower Court’s verdict. The Respondents submits that to that effect, there is really no appeal against the judgment of the lower Court. The law is now settled that where an Appellant fails to appeal against crucial point which is capable of still sustaining the lower Court’s judgment, the appeal would be of no use. Relied MAKINDE V. ADEOGUN (2009) 1 NWLR (PT. 1123) 575; OKONOBOR V. D.E. & S. TRANS CO. LTD (2010) 17 NWLR (1221) 181.

The Respondents also argued that the learned Counsel to the Appellants erred in law and misdirected himself in making their submissions, the Appellants could not state where the error in law came from and how the judgment would have been otherwise if such was alternatively applied on that issue and the others. The Respondents argued that assuming without conceding that the

learned trial Judge was wrong in any aspect of the judgment, such an error has not occasioned any miscarriage of justice to the Appellants. The law is settled that it is not every error in the judgment of a Court that will lead to its reversal on an Appeal. It is only those errors that occasion a miscarriage of justice that may result in a reversal by a higher Court, citing the case of OGBOMOR V. THE STATE (1985) 1 NWLR (PT.2) and BAKARE V. APENA (1986) 4 NWLR (PT. 33). The trial Court has discharged its duty of determining the issues of title properly and in line with the applicable laws. The Respondents proved their entire case within the provisions of the laws by laying bare, all facts relevant in the circumstance. The learned trial Judge was right therefore to give this pragmatic judgment. He relied on the cases of NGIGE V. OBI (2006) 14 NWLR (PT. 999) 1; A.G. OYO STATE V. FAIRLAKES HOTEL LTD (1988) 5 NWLR (PT. 92) 1; OGUNBIYI V. ISHOLA (1996) 6 NWLR (PT. 452) 12. The Respondents states that where a ground of appeal complains of an error in law and misdirection at the same time, such a ground is incompetent and ought to be struck out as held in DALI UFAYO V. DALYOP DATIRI

(2008) 6 NWLR (PT. 1083) 225; AMOJAINE V. EGVEGU (1996) 1 NWLR (PT. 424) 341; BI-ZEE BEE HOTEL LTD V. ALLIED BANK (NIG) LTD (1996) 8 NWLR (PT. 465) 176. The Respondents respectfully submits that the present appeal of the Appellants lack merit and ought to be dismissed on the ground that having not adduced any evidence in support of the counter claim to title in the main suit or successfully challenged the title of the Respondents, the Appellants are not entitled to formulate any fresh evidence and issues for determination to hang on the claims for title, as any issue so formulated has nothing to hang again. Citing FEDERAL CAPITAL DEVELOPMENT AUTHORITY V. NAIBI (1990) 5 SCNJ 186 in support. If the Defendant does not give evidence in support of his pleadings, the averments are taken as having been abandoned for they stand as no more than mere averment which have not been supported. An appeal is not a retrial, relied HONIKA SAWMILL (NIG) LTD V. HOFF (1994) 2 SCNJ 86. An Appellant must not be allowed to retry his matter afresh on appeal. It is also obvious that the Respondents had by known methods established ownership and title to the land by

traditional evidence, Acts of ownership, numerous and positive acts extending over a length of time as to warrant the inference of ownership, cited ATANDA & 3 ORS V. AJANI & 4 ORS (1989) 3 NWLR (PT. 111); IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227; FATOKI V. BARUWA (2012) 14 NWLR (PT. 1319) 1. The Respondents urge the Court to dismiss the appeal and uphold the judgment of the lower Court.

RESOLUTION
Upon a careful consideration of the Notice of Appeal, the Record of Appeal and the briefs of learned Counsel for the parties, I am inclined to adopt the sole issue donated by the Respondents for determination in this appeal. The three issues put forward by the Appellants can conveniently be resolved under the sole issue because evaluation of evidence runs through all the issues and the challenge is arising from the trial Court’s alleged failure to evaluate evidence.

preponderance of evidence and balance of probabilities. See Elias v. Omo-Bare 1982 5 SC. 25, Odulaja v. Haddad 1973 11 SC. 357, and Woluchem v. Gudi 1981 5 SC. 291.”Per MUKHTAR, J.S.C
See also the following cases OBULOR & ANOR V. OBORO (2001) LPELR-2196(SC); APENA & ANOR V. AILERU & ANOR (2014) LPELR-23305.
And UNION BANK V. RAVIH ABDUL &CO. LTD (2018) LPELR-46333(SC) wherein the apex Court held thus:
“… This is because in civil suits, unlike criminal cases, the burden of proofs keeps oscillating among the parties. The Evidence Act 2011 says it all in Sections 131-134. For the purpose of burden of proof in civil suit, the Act states thus: 131. “(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Per BAGE, J.S.C
See also the cases of OKOYE & ORS V. NWANKWO (2014) LPELR-23172(SC) and BULET INT’L (NIG) LTD & ANOR V. OLANIYI & ANOR (2017) LPELR-42475 (SC).

The claim before the trial Court was for title to land. There are 5 settled ways of proving title to land namely:
i. Traditional evidence
ii. Production of title documents
iii. Acts of selling, leasing, renting out all or any part of the land or farming on it, or a portion of it.
iv. Acts of long possession and enjoyment of the land
v. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See the following cases AJIBOYE V. ISHOLA (2006) LPELR-301(SC); ODUNUKWE V. OFOMATA & ANOR (2010) LPELR-2250(SC); OWHONDA V. EKPECHI (2003) LPELR-2844(SC) and THOMPSON & ANOR V. AROWOLO (2003) LPELR-3240(SC).
A Claimant is expected to plead and prove just one of the methods to succeed; he could also prove more than one method.

The Respondents before the trial Court pleaded 4 methods and called 5 witnesses while the Appellants as Defendants called 3 witnesses. The trial Court’s summary of their testimonies is at pages 588-595 of the record of appeal. The trial Judge found for the Respondents. The Appellants contends that it was in error.

From the flow of the Appellants arguments, they challenged the Respondents’ assertion that the 1st Appellant was a customary tenant through his father and the validity of Exhibit MT. The Appellants also contended that there was no reply to their Counterclaim. Let me resolve this aspect at this stage. It is trite that a declaration is not made on the admission of the opposite party or on default of pleadings. A party seeking a declaratory relief must present evidence that satisfies the Court before such an order can be made, see the case of ALIUCHA & ANOR V. ELECHI & ORS (2012) LPELR-7823 (SC) wherein the apex Court held thus:
“…the law is indeed well settled that in such claims for declaratory reliefs … the onus remains on the petitioners to prove and establish their claims on their own evidence without relying on the weakness of the case of the Respondents. See Nwokidu v. Okanu (2010) 3 NWLR (Pt.1181) 362; Ekundayo v. Baruwa (1965) 2 All NLR 211 and Dantata v. Mohammed (2000) 7 NWLR (Pt.664) 176.” Per MOHAMMED, J.S.C.

And the case of OGUNYEMI & ORS V. SONEYE & ANOR (2018) LPELR-44877(CA) wherein the Court held thus:
“…Thus, for a party seeking a declaratory relief to succeed, he has to adduce sufficient cogent and credible evidence which must satisfy the Court that he is entitled to the relief. Declaratory reliefs are therefore not granted in the absence of evidence, not even on the admission of the advisory. Generally therefore, the Plaintiff or Claimant who seeks the declaratory relief must rely on the strength of the evidence adduced by him, although in deserving circumstances, the weakness of the Plaintiff’s case may serve to strengthen the claim. See Umesie v. Onuaguluchi & Ors (1995) 9 NWLR (pt. 421) 515; Onovo & Ors v. Mba & Ors (2014) 14 NWLR (pt.1427) 391; Ogolo v. Ogolo (2006) 5 NWLR (pt. 972) 163 and Okonkwo & Ors v. Okonkwo & Ors (2010) 14 NWLR (pt. 1213) 228. See also Obawole & Anor v. Williams & Anor (1996) 10 NWLR (pt. 477) 146.” Per TSAMMANI, J.C.A
See also the cases of DUMEZ (NIG) LTD V. NWAKHOBA & ORS (2008) LPELR-965 (SC) and MOHAMMED V. WAMMAKO & ORS (2017) LPELR-42667(SC).

Therefore, the absence of a reply cannot automatically inure to the 3rd Appellant a declaratory order.

And furthermore, he must establish the root of his title, see the case of ALLI & ANOR V. ALESINLOYE & ORS (2000) LPELR-427(SC) wherein the apex Court held thus:
“…as a plaintiff in the suit, must not only establish his title to such land, he must also satisfy the Court as to the title of the person or source from whom he claims. He cannot totally ignore the validity of his grantor’s title where this has been challenged and concentrated only on his own title to such land as he would not have acquired a valid title to land if in fact his grantor at all material time has no title thereto. See Mogaji and others v. Cadbury Fry (Export) Ltd. (1985) 2 NWLR (Pt. 7) 393. “Per IGUH, J.S.C And the case of TERIDOM (NIG) LTD V. CAMP LAVET (NIG) LTD & ORS (2018) LPELR-43893(CA) wherein the Court held thus:
“… The position of the law is that once a party pleads and traces his root of title to a particular person, and that averment is challenged, he must establish how that person from who he claims his root of title came to have title invested on him. That means, he must not only establish his own title, but

he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land; Adesanya v Aderonmu (2000) LPELR-145(SC), (2000) 6 SC (PT 11) 18; Anukam v Anukam (2008) 1-2 SC 34; Nneji v Chukwu (1996) 10 NWLR (PT 478) 265; Odofin v Ayoola (1984) LPELR-2227(SC); Ngene v Igbo (2000) 4 NWLR (PT 651) 131, (2000) LPELR-1987(SC). Ayanwale vs. Odusami (2011) LPELR-8143 (SC)… Accordingly, the plaintiff, to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case the defendant did not concede the ownership of the land by the plaintiffs grantors but expressly denied the same. See Mogaji & Ors v. Cadbury Fry (Export) Ltd.(1985) 2 NWLR (pt. 7) 393.” The Appellant, from these judicial pronouncements, was expected to plead and adduce evidence of details of his root of title.” Per OTISI, J.C.A

See the following: NGENE V. IGO & ANOR (2000) LPLER-1987(SC) and ANUKAM V. ANUKAM (2008) LPELR-500(SC).
Where the Claimant’s root of title is defective, the claim for title cannot stand, therefore the success of the counter claim made by the 3rd Appellant will depend largely on the 1st and 2nd Appellants confirmation of title.

And also FCDA V. NAIBI (1990) LPELR-1262(SC) which held:
“I think it is necessary to refer to some well settled and now trite principles of pleadings in order to resolve this matter. Pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding his general traverse. See Hutchful v. Biney (1971) I All N.L.R. 268; UDC v. Ladipo (1971) I All N.L.R. 102; J.O.O.Imana v Robinson (1979) 3-4 S.C.1 at 9-10. It is also settled that in some cases, such as cases of demurrer, the defendant need not lead any evidence. He is in such a case taken to accept all the facts as established by the plaintiff but perhaps relies on some point of law. See Fadare v Attorney-General of Oyo (1982) 4 S.C.1.”Per NNAMANI, J.S.C
See the following cases IWUEKE V. IMO BROADCASTING CORPORATION (2005) LPELR-1507(SC); OFEM & ORS V. USANG (2017) LPELR-43606(CA) and ADDEH V. ONAKOMAIYA (2016) LPELR-41644(CA).

The principle that general traverse is bad and does not join issues can apply partially to the claims where the reliefs sought are

declaratory and where the Claimant must present cogent and convincing evidence that is believed by the trial Judge. Declaratory reliefs are not granted on admission.

On the failure to claim for forfeiture by the Respondents, the Appellants missed the point. The claim made by the Respondents was reproduced earlier and it was a claim founded on traditional history for declaration of title. If the trial Court finds it proved, the reliefs shall be granted. There is no rule or law that demands that a Claimant must ask for forfeiture where the pleadings include customary tenancy before his claim for declaration of title can be granted where proved. When a declaratory order is made will it not have the effect of compelling the Appellant to give up possession?

On the exact location of the land in dispute, the general rule is for the Plaintiff to clearly identify the land he claims and he can do this in two ways, either by oral evidence or by a survey plan, see OGUN V AKINYELU (2004) LPELR-2319(SC). However, where no party is claiming lack of knowledge of the land in dispute and where both sides are clear about the land in dispute and not ignorant of the

location, the burden on the Claimant is discharged, see ATANDA V ILIASU (2012) LPELR-19662(SC) which held thus:
“Generally, a Plaintiff’s claim for declaration of title to land and/or injunction pursuant to claim for damages consequent upon trespass by the Defendant succeeds only where the identity of the land in respect of which the reliefs are sought is certain. However, where the identity of the land is not in issue in the sense that parties know exactly the identity of the land, the subject-matter of the dispute between them, the requirement that the plaintiff and or parties prove(s) the identity of the land ceases to be a necessity. See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 42 352 SC Okonkwo v. Adigwu (1985) 1 NWLR (pt. 4) 694. Maberi v. Alade (1987) 2 NWLR (Pt. 55) 101.” PER RHODES-VIVOUR, J.S.C
See also the following: OGUN V. AKINYELU & ORS (2004) LPELR-2319(SC) and ADELUSOLA & ORS V. AKINDE & ORS (2004) LPELR-120(SC).

In this case, PW1 in his statement on oath described the land in dispute as situate at Gbezebidnakpa, in Kurape village along Kurape-Rafin Kwara, Karshi Development Area of Karu Local Government Area of

Nasarawa State. The said description and size was not challenged by the Appellants. It can thus be taken that they agreed with the said description of the land and its location, in the absence of a dispute or traverse.

Therefore, the sudden challenge of identity of the land in dispute is untenable and must be discountenanced. The 1st Respondent also at paragraph 30 of his Statement on Oath as PW1 said he knows the boundary of the land and boundary neighbours which he named as follows:
i. Late Chekwanyigna Shaha represented by Shaye Chikwanyigna of Kurape village.
ii. Late Bawu (Bawa) Sarkin Namun Kurape represented by Gabriel and his brothers Peter Bawa (Bawa) Sarkin Noman Kurape.
iii. Late Gachewi (Gache) represented by his only son who is also late Yusuf and now represented by also his son Stephen Yusuf Gache of Kurape village.
iv. Angulu Diye and brother Habu Diye who is also the Village/ District Head of Kurape.
v. Kwangye Gnami Zhnawi represented by his children Habila and Jezhi Gnami all of Kurape village”.

He was not cross examined on this piece of evidence. The Respondents tendered two documents (Pages 352-360 of the record of appeal) one of which is the contentious Exhibit MT tendered by PW1- Manasseh Tukura pursuant to paragraph 18-20 of PW1’s statement on Oath which says:
“18. At the village/district head’s Palace, the 1st defendants apologized and consented to document the position of the plaintiffs family and the 1st defendant dated 06/01/2009 is before the Court.
19. We recently followed it up when we documented same with the 1st defendant and his children after he tried to deny our ownership of same few years ago.
20. That following the above referred, the 1st defendant and some members of the family representing the Dangana Maman family execute a tenancy agreement with the Plaintiffs; the said agreement is before the Court.”

Exhibit MT was made at the Palace of the Village Head/District Head of Kuraape on the 6/1/2009, it was between the Respondents and the 1st Appellant and in the presence of elders, it was signed by parties. The document was admitted in evidence without objection. The argument of the 1st Appellant’s Counsel is that the 1st Appellant denied signing the document and no witness signed for him.

The law is that oral evidence cannot contradict a document, see UGWUEGEDE V. ASADU & ORS (2018) LPELR-43717(SC) where the apex Court held thus:
“It is settled that oral evidence cannot be allowed to add to or subtract from or alter or contradict a written document. See Section 132(a) of the EVIDENCE ACT, NNUBIA vs ATTORNEY – GENERAL, RIVERS STATE (1999) 3 NWLR (PT. 593) 82; B.O.N. LTD vs. AKINTOYE (1999) 12 NWLR (Pt.63l) 392; U.B.N PLC VS OZIGI (1994) 3 NWLR (PT.333) 385; and KOIKI VS MAGNUSSON (1999) 8 NWLR (Pt.615) 492. See also the case of AGBAKOBA VS INEC (2008) 18 NWLR (Pt.1119) 489 at 539 paras. D-H.” Per BAGE, J.S.C
See also the case of ASHAKACEM V. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541(SC) which held:
“The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible. This unusual but allowable exception

to the general rule was well explained in this Court in the case of Awolaja & Ors v Seatrade G.B.V. (2002) LPELR – 651.
See also the case of ADENLE V. OLUDE (2002) 18 NWLR (PT. 799) 413.
Furthermore, as an exception to the general rule that an unsigned document is worthless, an unsigned document by one party can still be binding on both under certain conclusions but in this case there is a signature or a contraption against the 1st Appellant’s name and the mere lack of witnesses’ signature on the part of the 1st Appellant cannot nullify the document. There is evidence that he signed, see the evidence of PW1. The fact remains that the matter was tabled before the village head and it was resolved that the 1st Appellant should leave the land for the Respondents. Retracting the content of the document can only caution the trial Judge to seek for other pieces of evidence that will corroborate the content of the said Exhibit and the trial Judge dutifully did that. To say the site plan was capriciously made is rather unfortunate because that is casting aspersion on not only the Respondents but the village head and elders of the

village. The document was not privately made by the Respondents, it was the product of a meeting duly held at the palace. Since the Appellants alleged that there was no evaluation of evidence, pursuant to the authority of AMADI V. ORISAKWE (2005) 1 SC (PT. 1) 35 at 41, the Court can compare the signature on Exhibit MT and the signature of the 1st Appellant on any other document in the Court’s file, such as the document attached to the Writ of Summons at pages 114-116 dated 6th of January, 2009 which emanates from the meeting held at the palace of the Village Head. See also the case of TOMTEC NIGERIA LTD V. FHA (2009) LPELR-3256(SC) and Section 101 of the Evidence Act, 2011. The document was valid for evaluation and the trial Court was right in ascribing value to it in arriving at judgment.

LPELR-42578(SC) thus:
“The law is well settled that where allegation of crime is directly in issue in any civil or criminal proceedings, it must be proved beyond reasonable doubt and the onus of proof is on the person who asserts. See Section 135(1) and (2) of the Evidence Act. See also Omoboriowo v. Ajasin (1984) 1 SC NJ 108; Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544 and Arebi v. Gbabiyo (2008) 2 LR ECN 467 at 489.”

Forgery by every definition is a criminal allegation and it was defined in NGADI V FRN (2018) LPELR- 43636(CA) as follows:
“By the definition of forgery, it includes making a false document or writing and altering a genuine document or writing in any material part, either by subtraction or addition that includes of date, attestation, seal or other material matter.” Per GARBA, J.C.A (as he then was).

The Appellants did not even come close to proving the criminal allegation of forgery in respect of Exhibit MT. Failure to so prove means the averment that Exhibit MT is a forgery remains unproved criminal allegation and is discountenanced.

Can the findings made by the trial Judge fit in the description of a perverse decision quoted above? Before we answer that question we have to understand what evaluation of evidence connotes in law. Evaluation of evidence is said to entail the trial Judge examining all evidence before him before making his findings. This is done by putting all

the evidence on an imaginary scale to see which side appears to outweighs the other. See MOGAJI V. ODOFIN 1978 4SC 91. The procedure of evaluation was given by the apex Court in the case of ANEKWE & ANOR V NWEKE (2014) LPELR-22697(SC) thusly:
“… the evaluation of evidence involves the consideration of each set of evidence given by the parties, the determination of the credibility of the respective witnesses and the ascription of probative value to the evidence evaluated. This fundamental principle has long been laid down by this Court in the case of Mogaji V. Odofin (1978) 3 – 4 SC page 65 at 67 wherein Fatayi-Williams reading the lead judgment said:- “In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of

witnesses called by each party but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:- a. Whether the evidence is admissible: b. Whether it is relevant; c. Whether it is credible; d. Whether it is conclusive; and e. Whether it is more probable than that given by the other party. Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he has accepted.” In the result, their Lordships in the foregoing authority did not therefore allow the judgment to stand because the learned trial judge failed to have followed the fundamental principles of procedure in the case. The same principle governing the evaluation of evidence was also applied in the cases of Lagga V. Sarhuna (2008) 16 NWLR (pt. 1114) 427 and Bassil V. Fajebe (2001) 11 NWLR (pt. 725) 592 at 608 – 609. In the earlier case for instance, this Court, at page 460 had the following to say:-

“Now in evaluating any piece of evidence placed before it by parties, a Court of law is bound to consider the totality of the evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. In stressing the point further, I seek to emphasize that the very direction in which the pendulum tilts is the course of justice. Therefore, the onus is on the Judge, as an adjudicator and umpire to act objectively in the process of arriving at a just evaluation of the evidence for purpose of achieving the ultimate end result. The determinant factor as to which evidence a Court accepts or rejects is not dependent on the quantum or quantity of witnesses called but rather by the quality or probative value of the evidence by the witnesses. See the case of Sha (jnr) V. Kwan (2000) 8 NWLR (Pt. 670) 685 at 705.” Per OGUNBIYI, J.S.C.

The Appellants argued that the trial Judge merely reproduced the evidence and addresses of Counsel and just entered judgment for the Respondents. I most respectfully find this a very unfair remark about the trial Judge in how the Court arrived at the judgment appealed against. Every Judge has his style and there is no one settled style of judgment writing. There are however features that every judgment should possess, see IHEMEREMADU & ORS V OKPECHI & ORS(2018) LPELR-44767(CA) wherein my learned brother LOKULO-SODIPE J.C.A had this to say:
“Judgment writing being an art, needs the peculiar and personal dexterity of the Judge who is the “artist”. No two artists convey exactly the same painting from an assigned object. So too, no two Judges write judgment using exactly the same house style and the same coloration, and all that. Each Judge has his own peculiar style and once the judgment contains the major attributes of a good judgment, an appellate Court will not interfere. Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules

in the field of mathematics. A Judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial Judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of counsel, if counsel are in the matter, reactions of the Judge to the arguments and the final order, an appellate Court cannot hold that the judgment is not properly written.”
The components of a judgment were named in the case of AG FEDERATION & ORS V ABUBAKAR & ORS (2007) LPLER-3 (SC) wherein the apex Court said:
“…judgment writing is an art by itself in which every individual has his own peculiar style and method. There is no particular form a judgment should take. But all that is required of a good judgment is that it must contain some well known constituent parts. Some of such constituent parts which a good judgment must contain, in case of a trial Court, include: (1) the issues or questions to be decided in the case; (2) the essential facts of the case of each party and the evidence led in support; (3) the resolution of the issues of fact and law raised in

the case; (4) the conclusion or general inference drawn from facts and the law as resolved; and (5) the verdict and orders made by the Court: See Ogba v. Onwuzo (2005) 14 NWLR (Pt.945) 331, (2005) 6 SC (Pt.1) 41 at 49. The above requirements however, need not be stated expressly in every judgment and they need not all be present in every case. It follows therefore that a judgment will not per se be set aside on proof that one or more of the above ingredients of a good judgment are missing unless it is shown that such omissions resulted in total miscarriage of justice.” Per AKINTAN, J.S.C.

Looking at the judgment appealed against at pages 586- 611 of the record of appeal, I find that the trial Judge reviewed the evidence on each side, submission of learned Counsel in urging the Court to find for them respectively and formulated 2 issues for determination which encompasses the issues donated by each side. The learned trial Judge considered the pleadings proved by evidence before the trial Court and reviewed the law on the subject matter of the claim, land. After the general review of the evidence, the trial Judge at pages 602 summarized the evidence of the

Respondents in proof of the various ways of proving title in land which was believed. At pages 602-603 is a review of boundary evidence and report of visit to locus in quo including findings most important is that boundary evidence is believed and it was not challenged. The trial Judge further considered the defence of the Appellants and arrived at the findings which culminated in the final judgment granting reliefs sought by the Respondents. The record of appeal at pages 604 presents what the trial Judge said as follows:
“It is my considered view that the plaintiffs were able to confirm to this Court during visit the boundary witnesses both those who testified and those who did not testify in line with their pleadings and evidence which the 2nd defendant confirmed.
It, therefore, goes to prove that the evidence of boundary witnesses is credible, worthy to be relied upon.
It is noted that the Defendants did not name any boundary witness in their statement on oath or pleadings but during inspection, they name some. In law, any evidence given outside pleadings goes to no issue and so I find and hold. In any case, those pieces of unsworn

evidence prove to me that the Plaintiffs are not making a mere or fictitious claims that they have a land in that area since there are boundary witnesses.
It is my findings that the Plaintiffs have supported pleadings in paragraph 32 of the Amended Joint Statement of Claim by the boundary witnesses called i.e. PW 2, 4 & 5 and I belief their evidence as it remained unchallenged.
The Plaintiffs pleaded in paragraphs 6, 18, 19, 20, 21, & 22 of the amended joint statement of claim that their late father Tukura Anyitomizayi Mwamwawe gave the land in issue to the 1st Defendant’s father by name Mamman (Ada Zaki) who was a close friend of their father on free rent as customary tenant for farming after being re – settled by Federal Government. These averments are supported by the evidence of PW 1 in paragraphs 5, 14, 15, 16, 17, 18, 19 & 20 in his witness deposition on oath, PW 3 in paragraphs 4, 11, 12, 13, 14, 15, 16 & 17, PW 4 in paragraph 6 and PW5 in paragraph 3.
On the other hand, the 1st and 2nd Defendants denied the Plaintiffs’ claim in paragraphs 1, 2, 3, 9, 10 & 11 of the Joint Statement of Defence and

alleged fraud or forgery on the part of the Plaintiffs as regards Exhibit MT. The Defendants testified in paragraphs 2, 3, 8, 9, 10, 11, 12, 13 & 14 of DW 1, paragraphs 2, 3, 6, 8, 9, 10 & 11 of PW 2 and paragraph 6 of the DW 3 of their witness deposition on oath in support of the denial in their pleadings.
I find from the evidence of the PW 4 in paragraphs 3 & 6 that he knows Tukura Anyitomizayi Mwamwawe and his farm land near their own at Gbezebidnakpa and that the said land was given to Maman (Ada Zaki) to farm.
To my mind, the PW 4 has corroborated the evidence of the 1st & 2nd Plaintiffs who testified as PW 1 & PW 3 as to how the 1st Defendant came to be on the land in issue. I belief the evidence of PW 1, 3, & 4 as against that of the DW 1 & 2 who simply denied that they are not tenants.
It is my view that Exhibit MT was prepared to back up the transaction between the parents of the parties as a security and this is in line with the case of OYENEYIN VS AKINKUGBE (2010) 4 NWLR PT. 1184 AT 284 RATIO 3. I do not agree with the arguments of the Defendants’ Counsel that the agreement was made in contemplation of this suit in view of the above decision of the Apex Court.

I have taken a critical look at the Exhibit MT. And I do find that the Plaintiffs endorsed same. Also the District Head of Kurape (PW2), Wakili Kurape (PW4) and Plaintiffs’ lawyer all endorsed both the tenancy agreements. Even though, the 1st Defendant denied endorsing the agreement and alleged fraud, the question to ask is, can the PW2, PW4 and Counsel C. Yoila Esq. be said to be lying including other elders who signed but did not testified? I doubt it. The Bible says in Numbers 35:30 that by the testimony of two or three witnesses a truth has been established. In view of this, I belief that Exhibit MT is real and the 1st Defendant is rather economical with the truth. In any case, it is trite law that he who asserts must prove. Since the 1st Defendant alleged fraud of his signature, the burden of proof lies on him to prove beyond reasonable doubt as fraud is an allegation of crime. He was given notice to produce the original of Exhibit MT but he failed. I have not seen any evidence produced by the 1st Defendant in proof of the allegation apart from mere denial. No witness was called or

document produced as proof either. In short there is no evidence by the 1st Defendant to corroborate his denial. It is noted that the 2nd Defendant just repeated the averments of the 1st Defendant dogmatically. For example in paragraph 2, 8, 9 & 10 of his witness deposition on oath he said that:
2) “That I know as a fact I am neither customary tenants to the plaintiffs nor could we have been on any land with their permission.”
8) “That I know I have no any such tenancy relationship with the plaintiffs or any of their family: the stories are fabricated.”
9) “That I know as a fact that none of my siblings or any of my family members have ever had any cause to plead with the plaintiffs over the land in dispute or any other farm land wheresoever.”
10) That the document captioned “Tenancy Agreement” and the one agreement of the land matter are fraudulently made and or forged in anticipation of proceedings”. This is exactly what 1st defendant (DW1) stated in his witness deposition on oath in paragraphs 8, 9, 10 & 12 of his witness deposition.

It is the claim of the Plaintiffs that the 1st Defendant is their tenant while the 2nd Defendant is a stranger, yet the 2nd Defendant has testified as though the Plaintiffs acknowledged and made agreement with him as tenant. It seems he does not have any defence to present and had to copy the defence of the 1st Defendant. There is no way I can take him serious at all and cannot belief his evidence. In addition, I cannot believe the evidence of the 2nd Defendant because even when he testified in Court, I watched his demeanor as being untruthful especially when he gave his names as Sani Sule also known as Muhammadu Sani Ahmad. I have perused Exhibit U. 3 A & B and U. 5, the 2nd Defendant (DW2) stated in the sale agreement his name as Mahammadu Sani. The site plan has his name as Sani Ahmad Karshi. In Exhibit U. 5, he stated his name as Alhaji Suleiman Mohammed and signed “for”.
My observation from the above is that the 2nd Defendant is either impersonating someone or dubious in using different names in different transactions just to create confusion or being caught as a cheat (419). In fact, throughout his evidence, he did not explain how he came on the land in issue before

selling it to the 3rd Defendant. The witness, I cannot take him serious and I reject his defence as irrelevant. I hold that the 2nd Defendant is a stranger on the land in issue as alleged by the Plaintiffs and has no defence to this action I hold him as a trespasser on the land in issue as what he stated is not credible.
Haven found as above, I hold that the Plaintiffs in the absence of proof of fraud in Exhibit MT have proved that Exhibit MT is the agreement between their family and the family of the 1st Defendant (Dangana Mamman (DW1) and is valid and binding on them. I hold that Exhibit MT is credible evidence that the 1st Defendant is a tenant of the Plaintiffs’ family. Furthermore, the Plaintiffs pleaded in paragraphs 7, 8, 9, 10, 23, 24, 25, 26, 27, 29, 30, 31, 36, 37 & 38 of the amended statement of claim that the 1st and 2nd Defendants sold the land in issue to the 3rd Defendant. These averments are supported by the evidence of PW 1 – PW5.
The 1st and 2nd Defendants also averred and testified admitting the sale to the 3rd Defendants claiming that they own the land sold. It is my considered opinion in view of the findings and

holdings above that since I have declared that Exhibit MT is a valid document and binding on parties, the act of selling the land to the 3rd Defendant by the 1st Defendant being a tenant constitute a misbehavior of the highest order and can lead to the owners to take over possession and quit him from the land for violating the terms of the tenancy agreement as in paragraphs 2 & 4 of Exhibit MT. I find and hold that the Plaintiffs are entitled to their claim against the Defendants.
It is my considered view and findings that the evidence of the Defendants is unbelievable that no permanent inheritance in Karshi based on African custom and tradition and land in Kurape village are under Karshi and subject to Karshi land tenure law. In any case no proof was produced and no such land tenure law was tendered. I agree with the submission of the plaintiffs’ counsel that any law that says no permanent inheritance on land is repugnant to natural justice, equity and good conscience.
I, therefore, hold that if such a custom and tradition exist in Karshi, it is repugnant and cannot stand even in this modern trend and I so declare. I also hold that

there is no such law tagged Karshi land tenure law in the absence of any proof. The evidence of the Defendants on it is rejected. I don’t belief their evidence.
I note from the evidence of the Defendants that they never denied or dispute that the Plaintiffs’ great, great grandfather – Kurape was the first to establish Kurape and never denied his existence but only denied that he was not the owner of the land in issue. It is in evidence that the Plaintiffs’ claim to be in possession of the land from their forebears for 100 years while the 1st and 2nd Defendants said 35 years. It is in evidence also that the Defendants migrated from old Karshi to New Karshi as a result of re – settlement by Nigerian Government to give way in 1982. From 1982 to 2011 when the matter was filed in Court, it is 29 years only.
From the evidence available, it can be deduced that Kurape village existed before the creation of the Federal Capital and the Defendants were re – settled thereafter from old Karshi to New Karshi. The 1st Defendant even told the Court under cross examination that he does not know his father but learnt he died in old

Karshi and he grew with Shekewa Mamman who also died in Old Karshi.
All these goes to show that the 1st Defendant’s father was a tenant of the Plaintiffs’ father as claimed, more so that the 1st Defendant never told the Court how he came by the land in issue i.e. no evidence of deforestation or succession. He did not say he bought it either. His claim is that the Karshi there is no permanent inheritance by the land tenure law applicable. The claim of the Defendants is unsubstantiated and unreliable. In the final analysis on this issue, in the case of NWOKOROBIA VS NWOGU (SUPRA) RATIO 3, the Supreme Court held thus:
“The law is well settled that where evidence of tradition is relied on in proof of declaration of title to land the plaintiff, to succeed, must plead and establish facts as; who founded the land, how he founded the land and the particulars of the intervening owners through whom he claims.”
See also the case of OLOKOTINTIN VS SARUMI (SUPRA).
From the credible evidence of the Plaintiffs, I find that the Plaintiffs who are relying on traditional history have succeeded in pleading and establishing the founder of

the land how he founded and particulars of the intervening owners in line with the above decision and I so hold.
This is because, the evidence of traditional history is unchallenged uncontroverted and uncontradicted. In law, such evidence is bound to be accepted as the truth. I hold that the evidence of the Plaintiffs as to their ownership is cogent, credible and consistent and so I belief their evidence as the truth but I disbelief the evidence of the Defendants in its entirety.
In addition, in claims of declaration of title to land as in this case instant, the Plaintiffs needed to prove identity of the land with certainty. This I find the Plaintiffs have done vide site plan attached in Exhibit MT and at the locus-in-quo and so I hold. I accept this evidence too as the truth. See the case of E.S.C.S.C. VS GEOFREY (SUPRA) SEE ALSO OGEDENGBE VS BALOGUN (2007) 9 NWLR PT 1039 PG 380 S.C.
In the whole, it is trite law that civil cases are decided on balance of probability and preponderance of evidence. I hold that the evidence of the Plaintiffs preponderates than that of the Defendants hence the Plaintiffs have succeeded in

establishing their claims against the Defendants by the overwhelming, credible and admissible evidence produced before the Court. I have weighed the evidence adduced on both sides on an imaginary scale of justice and found that the Plaintiffs’ side weighs far higher. See the case OKOKO VS DAKOLO (SUPRA) AND EWO VS ANI (2004), 3 NWLR PT S AT PG 61
On the other hand, I hold that the Defendants have failed to establish any title to the land in dispute and have, therefore, no interest to pass to anybody including the 3rd Defendant. Having failed to establish title to the land in dispute, the 1st and 2nd Defendants have no right to sell the land in issue to the 3rd Defendant and they cannot benefit from it. In short, the Defendants are trespassers according to law and I so declare them as such. See the case of EGBUTA VS ONUNA (2007) 10 NWLR PT 1042 PG 298 (CA) the Court held thus;
“A party on a parcel of land who claims ownership of the land is a trespasser if he lacks valid title to the Land”
Accordingly, have I hold as above and I reject the arguments of the Defendants’ Counsel but uphold that of the Plaintiffs’ Counsel

on this issue one. I resolve issue one in favour of the Plaintiffs and against the Defendants.
On the issue of whether the 3rd Defendant has proved his Counterclaim to entitle him to the reliefs sought. The Counterclaim reads;
Wherefore the 3rd Defendant claim against the Plaintiffs jointly and severally as follows:
1) A DECLARATION that the transaction between him and the 1st and 2nd defendants is valid
2) A DECLARATION that the 3rd defendant is the rightful owner of all that parcel of land measuring 169.16 hectares of land lying and being at kurape along Rafin Kwara Road, Karshi Development Area Karu L.G.A of Nasarawa State.
It is worthy to state that the 3rd Defendant claim his ownership of the land through 1st and 2nd Defendant by purchase. This Court has already found and held earlier that the 1st and 2nd Defendants have failed to prove their title to the land in dispute and had no right or interest to pass to the 3rd Defendant. In other words, there was no valid sale. So invariably, it means the 3rd Defendant has acquired no title to the land in issue i.e. no title passed to him. Therefore, where the 1st and 2nd Defendants fail, the 3rd Defendant equally fails.

It is trite law that no one can validly give what the does not have as expressed in the Latin maxim: Nemo dat quod non habet. See the case of OWENA BANK PLC VS OLATUNJI (SUPRA); EGBUTA VS ONUNA (SUPRA) AND OLAGUNJU VS YAHAYA (SUPRA). Consequently, the 3rd Defendant has failed to place evidence before this Honourable Court that the transaction between him and 1st and 2nd Defendants is valid. He is not entitled to same.
In the same vein, the 3rd Defendant has failed to place evidence before me that he is entitle to the declaration that he is the rightful owner of 169.16 hectare of land moreover, the Plaintiffs claim is for 16.66 hectares only. The rest is not part of the issue before this Court, so I refuse to so declare in his favour. I rather hold him as a trespasser. In the whole, the 3rd Defendant has failed to prove his counterclaim and I accordingly dismiss same.
I hereby uphold the submission of the Plaintiffs’ Counsel and reject that of the Defendants’ counsel I resolve the issue 2 against the 3rd Defendant.
In conclusion, having considered the entire case and found that the Plaintiff have succeeded

in establishing their claims, I hold that they are entitled to the reliefs sought in their amended statement of claim I hereby grant the reliefs as prayed.”

I have hereinbefore re-produced extensively, the portion of the judgment of the lower Court wherein it ex-facie engaged in the evaluation of the evidence adduced before it and gave reasons for its various conclusions. Though, it is clear in the portion of the judgment in question, that the said Court did not specifically set out to address every single point argued and submitted to it by the parties, it addressed the main issues relevant to determine the claim. I however cannot but state that, the lower Court not only correctly captured or identified the issues which it had to resolve in a land case (such as the instant one) in which the opposing parties claim ownership to the same piece or parcel of land and relying on traditional history in establishing respective titles to the said land. The position taken by the Appellants on this issue would appear to ignore the fact that parties cannot expect the trial Judge to find for a party who failed to establish his case and the peculiar issues to be

resolved in the case having regard to the nature of the case, are settled by law. The issues involved in the instant case in which parties both relied on traditional history were duly brought to the fore in the judgment of the lower Court and the said Court glaringly applied relevant evidence which it accepted in resolving them. I consider it worthwhile to remind the Appellants of what is expected of a judgment of a Court as enunciated in the case of USIOBAIFO V. USIOBAIFO (2005) LPELR – 3428 (SC). Consequently, the main complaint that the trial Court did not evaluate evidence is untenable and must be discountenanced. There was evaluation and this Court cannot interfere or disturb same, the reason for closing so having not been established by the Appellants.

On the counter claim by the 3rd Appellant, the issue is straight forward, assuming the narration of the counterclaimant is accepted as true, can it in law inure him a declaration when the root of the title of his assignor is not established? The title of his vendor was rooted in traditional ownership. The settled position of the law is that where a party relies on evidence of tradition in proof of

title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as: a. Who founded the land; b. How he founded the land; and c. The particulars of the intervening owners through whom he claims; See: NRUAMAH V EBUZOEME (2013) LPELR-19771(SC); ONWUGBUFOR V OKOYE (1996) LPELR-2716(SC); DIKE V OKOLOEDO (1999) 7 S.C. (PT 111) 35; NGENE V IGBO (SUPRA); EZEOKONKWO V OKEKE (2002) 5 S.C. (PT 1) 44. The position of the law is that once a party pleads and traces his root of title to a particular person, he must establish how that person came to have title invested on him. He must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged. In the case of OGUNLEYE V ONI (1990) 4 S.C. 130, (1990) LPELR-2342(SC), Nnamani, JSC expounded: “But it would be wrong to assume…that all a person who resorts to a grant as a method of proving title needs to do is to produce the document of grant and rest his case. Rather, whereas, depending upon the issues

that emerged on the pleadings, it may suffice where the title of the grantor has been admitted, a different situation arises in a case like this where an issue has been raised as to the title of the grantor. In such a case, the origin of the grantor’s title has to be averred on the pleading and proved by evidence. This is fatal to the appellant’s case. This Court has made it clear in several decisions that if a party bases its title on a grant according to custom by a particular family or community, that party must go further to plead and prove the origin of the title of that particular person, family or community unless that title has been admitted. See on this Mogaji v Cadbury Nigeria Ltd. (1985) 2 N.W.L.R. (Pt. 7) 393 at p. 431 also Elias v. Omo-Bare (1982) 5 S.C. 25 at pp. 57-58.”
See also NGENE V IGBO & ANOR (2000) LPELR-1987(SC) which held as follows:
“It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how that person or family derived his or its title to such land. Accordingly, the plaintiff, to succeed in his claim for declaration of title to the

land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case the defendant did not concede the ownership of the land by the plaintiff’s grantors but expressly denied the same. See Mogaji & others v. Cadbury Fry (Export) Ltd. (1985) 2 NWLR (pt.7) 393.” Per IGUH, J.S.C.
It is also settled position of the law that where both parties in a land dispute admit that the original title to the land in dispute resides in a particular person, and one of the parties successfully traces his title to that person, he is entitled to be declared the owner of the land; RUNSEWE V ODUTOLA (1996) 4 NWLR (PT. 441) 143, (1996) LPELR- 2964(SC). But where the original title is in dispute, the plaintiff must prove the title of the person from whom he claims. The position of the law is that once a party pleads and traces his root of title to a

particular person, and that averment is challenged, he must establish how that person from who he claims his root of title came to have title invested on him. Thus, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land. See ADESANYA V ADERONMU (2000) LPELR-145(SC), (2000) 6 SC (PT 11) 18; ANUKAM V ANUKAM (2008) 1-2 SC 34; NNEJI V CHUKWU (1996) 10 NWLR (PT 478) 265; ODOFIN V AYOOLA (1984) LPELR-2227(SC); NGENE V IGBO (2000) 4 NWLR (PT 651) 131, (2000) LPELR-1987(SC) and ELAYO V VEREGH & ORS (2019) LPELR-47134(CA).

Looking at the pleadings for the counterclaim, the 3rd Appellant traced his interest through vendors including the 1st and 2nd Appellants, he relied on the agreements and site plans. He contended that the land in dispute is just a small portion of the land he acquired from different vendors. Therefore, the root of title is traced to the 1st and 2nd Appellants. The counterclaim failed because they could not in support of counter claim trace their roots by evidence beyond themselves. The counterclaim being a separate claim required the

Counterclaimant to also plead adequately and prove his root of title and he failed in this regard because the root of title of the 1st and 2nd Appellants was not established. They were not able to establish their own source of title and therefore the counterclaim must also fail. The trial Judge rightly found that the counterclaim was not proved and has failed, thus dismissed. The 1st and 2nd Appellants cannot give what they did not have. Having resolved all the issues resoned by the appellant against the appellants, the appeal fails.

In the light of the findings above, the appeal is unmeritorious and is hereby dismissed. The judgment of HON. JUSTICE ROSE G. SOJI delivered on the 30th September, 2014 is hereby affirmed.
Each party to bear his cost.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the lead judgment delivered by my learned Brother, Hon. Justice Yargata Byenchit Nimpar, JCA. I agree with the reasoning and conclusions reached in the lead judgment.

It is the settled position of law that the burden of proof in Civil matters is on the Plaintiff/Claimant/Petitioner/Applicant as the case may

be, to satisfy the Court by leading concrete, credible, cogent and valid evidence with a view of establishing his claim. See In Re: Amolegbe (2014) 8 NWLR (Pt.1408) 76 at 98-99 paragraphs “B” per I. T. Muhammad, JSC (as he then was). Section 133(1) of the Evidence Act, 2011 provides thus “133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”

It’s trite that the Appellate Court should not easily disturb the findings of fact of a trial Judge who had the opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or inferences from them may be questioned in certain circumstances where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, an Appellate Court,

is in as much a good position to deal with the facts and findings as the Court of Trial. See Barau vs. Customs and Excise (1982) 2 MCR 1 at pages 21-22 per Fatayi-Williams, C.J.N.;Benmax vs. Austin Motor Co. Ltd. (1955) A.C. 370; Akinola vs. Fatoyinbo Oluwo & Ors. (1952) All NLR 224; Lawal Braimob Fatoyinbo Ors. vs. Selistu Abike Williams (1 FSC 67).

Evaluation of evidence and the ascription of probative value to the evidence of witnesses lies within the province of the learned Trial Judge. The Legal Sage Oputa, JSC (now of blessed memory) in ONWUKA V. EDIALA (1989) 1 NWLR (PT. 96) 187, 208-2019 posed the pertinent questions as to: “What does evaluation of evidence consist of? What is the meaning of the expression evaluation?” which he answered as follows: “To evaluate simply means to give value to, to ascertain amount, to find numerical expression for it…” Evaluation of evidence thus entails the assessment of that evidence so as to give value or quality to it. Evaluation demands that the evidence adduced by both parties is assessed and weighed so as to give probative value or quality to it. Review of evidence not the same thing as

of evidence. The former entails a reproduction of evidence of witnesses in summary form. Actual evaluation entails reasoned belief of evidence of one party to the other…”

A Ground of Appeal is a Statement by which an Appellant complains of the error or mistake committed in the process of ascertaining the law or the application of the law to disputed or proved facts or that the Court had misdirected itself or was in error in the course of appraisal of the evidence before it, thereby arriving at a wrong or perverse decision; the Grounds of Appeal and indeed any issue distilled there from must of necessity emanate from the reasons for that decision. In the much touted decision of the Supreme Court here in this Appeal (FBN. Plc & 4 Ors. vs. Attorney-General of the Federation & 4 Ors. (2018) 7 NWLR (Pt. 1617) 121 at 148-149 paras. F-C); the erudite Law Lord of the Apex Court, Augie, JSC; relying on Nwankwo vs. E.D.C.S.U.A. (2007) 5 NWLR (Pt. 1027) 377 (SC), NDIC vs. Okem Ent. Ltd. (2004) All FWLR (Pt. 210) 1176, (2004) 10 NWLR (Pt.880) for, made it explicitly clear that:
“An Appeal is an invitation to a higher Court to review a decision

of a Lower Court, and Grounds of Appeal are basically highlights of the error of law or fact or mixed and fact made by the Lower Court in the decision sought to be set aside on Appeal. So, a Ground of Appeal must be related to the decision of the Lower Court and must contain complaints that the Appellant relies upon to succeed in setting aside the ratio decidendi of the judgment, and not just observations and any passing remarks of a Judge in the course of writing a judgment.”
Although, authorities emphasize that a Ground of Appeal must stem from a text of the Judgment (ipsissima verba), such decisions in no way limit the scope of a Ground of Appeal, which can arise from commissions or by the Court from which the Appeal emanates, in either refusing to do what it ought to do or doing what it ought not to or even in over doing that act complained of.

Accordingly, the Appellants have not established that there was a substantial wrong or miscarriage of justice in the Court below which will warrant this Court to interfere with the Judgment of the Lower Court rendered in favour of the Respondents.

There is no merit in this Appeal, I uphold the decision of the learned Trial Judge. The Appeal is dismissed and the judgment of the Trial High Court is affirmed. I also abide by the Order as to Costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: My learned brother, Yargata Byenchit Nimper made available to me a draft copy of the lead judgment, just delivered in which the appeal was determined as lacking in merit and thereby dismissed. I totally adopt my learned brother’s reasoning and conclusion reached therein as mine. The trial Judge rightly found that the counterclaim was not proved and failed, thus dismissed.

Accordingly, the judgment of Hon. Justice Rose G. Soji delivered on the 30th November, 2014 is affirmed with no cost awarded to any parties.

Appearances:

GOJA AUGUSTINE WILFRED For Appellant(s)

Olushola Ojo For Respondent(s)