MANAJA v. DALTI & ANOR
(2022)LCN/17067(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/G/114/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ABUBAKAR MANAJA APPELANT(S)
And
1. HARUNA DALTI 2. ABDULHAMID JAURO ABDU RESPONDENT(S)
RATIO
THE CONCEPT OF FAIR HEARING
The concept of fair hearing in the process of adjudication cannot be over-emphasized. It is very important for the validity of a judicial process. Any judicial process done without affording the parties fair hearing amount to a nullity. This is without regard to how credible the process could or brilliant the judgment a product of that process could be. Lack of fair hearing takes away any credibility in the process. The absence of fair hearing nullifies a proceeding and consequently the judgment. If any of the parties succeeds in challenging fair hearing in the proceeding, the whole proceeding will be declared null and void and so is the judgment no matter how well conducted and brilliant the judgment can be. See Dingyadi & Anor vs. INEC & Ors (2010) LPELR-40142 (SC).
In view of the effect of a successful challenge of lack of fair hearing in a proceeding, a Court at whatever level must ensure that the proceedings are conducted in such a way that all the parties are given equal opportunity in presenting their case. This is the original tenet of fair hearing. In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the apex Court postulating on the doctrine of fair hearing held:
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See R Vs. Rand (1866) LR Q.B. 230, Ndukauba Vs Kolomo & Anor (2005) 4 NWLR (PT.915) 411, Ikomi Vs The State (1986) 5 SC 313, Akpamgbo Okadiobo Vs Chidi (2015) LPELR-24564 (SC) 1 AT 39 E – F. PER TOBI, J.C.A.
THE POSITION OF LAW ON PROVING TITLE OF OWNERSHIP OF LAND BY TRADITIONAL EVIDENCE OR TRADITIONAL HISTORY
Let us take a little excursion into the law as to how a party can prove title by traditional evidence or traditional history. The party relying on same must produce by way of evidence the family tree or genealogy of the family from the founder to the person claiming title. A mere family tree or genealogy tracing will not be enough but the evidence must relate the ownership of the land passing from one person to the other till the Appellant. In Awodi & Anor vs. Ajagbe (2014) 12 SC (Pt. 1) 76, the apex Court in driving home this point held as follows:
“… the law is now settled that where a person relies on traditional history as his root of title to land, the onus is on him to plead the root of title and the names and history of his ancestors. He should lead evidence to show same without leaving any yawning gap.
A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a claimant. See Mogaji v. Cadbury (1986) 2 NWLR (Pt. 47) 393, Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386, Akinloye v. Eyiyola (1968) 2 NMLR 92, Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 and Odi v. Iyala (2004) 4 SCNJ 35 at 54. Further, the weakness of the defendant’s case in a land matter touching on declarations, does not assist the plaintiff’s case. He sinks or floats with his case. See the case of Animashaun v. Olojo (1991) 10 SCNJ 143.”
In the same judgment, Ngwuta, JSC in his contribution was clearer on this point. His Lordship held as follows:
“In a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following:
(1) The person who founded the land and exercised acts of possession.
(2) How the land was found, and
(3) The persons on whom the title to the land devolved from its founder to the plaintiff. See Obioha v. Duru (1994) 10 SCNJ 48 at 61 ratios 6 and 7, Piaro v. Tenalo & Ors (1976) 12 SC 31. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. See Eze v. Atasie (2000) 6 SCNJ 209 at 218, Elias v. Omo-Bare (1982) 5 SC 25. The plaintiff must rely on his pleading, he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160.” PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Gombe State High Court sitting in its appellate jurisdiction delivered on 19/11/2020 by their Lordships Ibrahim Mohammed J. and Fatima Musa (Mrs.) J. The facts that culminated into this appeal are not complicated at all. The Appellant who was Plaintiff, in the Upper Area Court Bambam instituted an action on behalf of his family against the Respondents, the Defendants in that Court for the ownership of a farmland that is the land in dispute. The Appellant relied on traditional history as his root of title. The Upper Area Court, the Court of first instance was not impressed with the evidence of traditional history of the Appellant, and consequent upon that, the Plaintiff’s claim was dismissed. The Court did not only dismiss the claim of the Appellant as Plaintiff in that Court of first instance, but gave judgment in favour of the defendants, id est, Respondents in this appeal. The Appellant in this appeal dissatisfied with the judgment of the Upper Area Court, appealed to the High Court of Gombe State (herein referred to as lower Court) which appeal was registered as GM/84A/2018. Against the expectation of the Appellant, the lower Court in its 11 paged judgment found at pages 111-121 of the record of this appeal, dismissed the appeal and affirmed the decision of the Upper Area Court Bambam. The lower Court at page 121 of the record held thus:
“It is our view that the lower Court properly evaluated the evidence before it and made the finding of facts, the decision is not perverse and did not occasion any miscarriage of justice to warrant our tempering with it. On the whole, we hold that this appeal lacks merit and it is accordingly dismissed. The decision of the Upper Area Court Bambam delivered on the 5th September, 2019 in Suit No CVFI/27/2019 is hereby affirmed. There shall be no order as to cost.”
The Appellant again unhappy with the judgment and in exercising his right to appeal, filed an appeal to this Court via a notice of appeal of 4 grounds on 9/2/2021 found at pages 123-126 of the records. The learned counsel to the Appellant in this appeal who settled the Appellant’s brief filed on 22/3/22 and deemed on 23/3/22 is M. A. Galaya, Esq. On the side of the Respondents, C. D. Kadala Esq., is Counsel who settled the Respondents’ brief filed on 20/4/22. The appeal was heard on the 9/5/22.
I will now take a general view of the submission of counsel. I will start with M. A. Galaya Esq., who adopted the Appellant’s brief on 13/3/2020.
In the Appellant’s brief, the following issues were formulated for determination:
1. Whether the High Court of Justice Gombe State sitting on appeal against the decision of the trial Upper Area Court, Bambam was not in error in affirming the decision of the trial Court which failed to properly evaluate the evidence adduced before it. (Distilled from ground one)
2. Whether the lower Court was not in error when it affirmed the decision of the trial Court which failed to conduct fair hearing, it treated such fundamental error as a mere irregularity. (Distilled from grounds two and four)
3. Whether the Gombe State High Court of Justice sitting on appeal against the decision of Upper Area Court, Bambam was not in error in upholding the decision of the trial Court which misconceived and misapplied the principles in Idundun vs Okumagba to the case before it. (Distilled from ground three)
On issue 1, it is the firm submission of learned Counsel to the Appellant that the lower Court like the Court of first instance, did not properly evaluate the evidence before it and therefore this Court can interfere with the finding of facts. It is further submitted by counsel that if only the Court had properly evaluated the evidence of the 3 witnesses of the Appellant, there is no way the Court would have dismissed the Appellant’s case. Learned counsel had called upon this Court to re-evaluate the evidence before the Upper Area Court and accordingly allow the appeal. This is more so that there are contradictions in the evidence of the Respondents’ witnesses. Counsel referred to Kayili Ayili vs Yilbuk & Ors (2015) Vol. 224 LRCN 108, University of Ilorin vs Adesina (2009) ALL FWLR (pt 487) 56, Obineche & Ors vs Akusobi & Ors (2010) 8 SCM 126, Oshe vs Okin Biscuits (2010) 3 SCNJ 381 to buttress the above submission.
Issue 2 is a challenge on the judgment on grounds of lack of fair hearing. It is the submission of counsel to the Appellant that the Upper Area Court entered into the arena by asking the Appellant witnesses several questions which he did not ask the witnesses of the Respondents. This is enough to nullify the proceedings of the Upper Area Court, counsel submitted referring to Speaker Bauchi State House of Assembly vs Danna (2017) 49 WRN 82; Salu vs Egeibon (1994) 6 SCNJ (pt 2) 223.
In addressing issue 3, M. A. Galaya Esq., of the learned Counsel submitted that the lower Court followed the decision of the Upper Area Court in wrongly applying the principle in Idundun vs Okumagba which had occasioned a miscarriage of justice. The Court followed the Court of first instance in accepting the evidence of the Respondents’ witnesses that the Defendant cultivated the land in dispute. Counsel submitted that even if that evidence is true, that cannot amount to ownership. He referred to Rabiu vs Adebajo (2012) 209 LRCN 19. On the whole, it is the submission of the learned counsel to the Appellant that this appeal be allowed.
In contra, C. D. Kadala Esq., the learned Counsel to the Respondents in their brief formulated three issues which are similar in all respect with the issues formulated by the Appellant. For completeness however, I will reproduce the Respondents’ issues as follows:
a. Whether the lower Court was right in law when it affirmed the decision of the trial Court which properly evaluated the evidence and gave title of the land in dispute to the Respondents. (Distilled from grounds 1 and 4)
b. Whether the lower Court was right in its decision that there is no violation of the fundamental principles of fair hearing? (Distilled from ground 2)
c. Whether the lower Court rightly affirmed the application of the principle in the case of IDUNDUN VS OKUMAGBA by the trial Court? (Distilled from ground 3)
Dealing with issue 1, Learned Counsel to the Respondents stated the general legal position that appellate Court are not to interfere with the finding of a lower Court citing a number of cases including FBN Plc vs Ozokwere (2013) 226 LRCN (pt 2) 1, Gbemisola vs Bolarinwa (2014) 234 LRCN 137. It is the firm submission of counsel that the lower Court properly evaluated the evidence before it as the evidence of the Appellant’s witnesses is hearsay and therefore, this Court should not interfere with the finding of fact which are presumed to be correct in law. He referred to APGA vs Anyanwu & Ors (2014) 231 LRCN 1, Sanusi vs Adebiyi (1997) 54 LRCN 2756, Ugboli vs The State (2018) 276 LRCN 171, Yaki vs Bagudu (2015) 64 (pt 1) NSCQR 93.
On issue 2, after stating the general principle as to what will amount to denial of fair hearing, it is the submission of counsel that what the Upper Area Court did in asking the Appellant witnesses question is within the confines of the law and does not amount to denying the Appellant fair hearing. He referred to Section 246 (1) of the Evidence Act 2011 and the case of Alhaji Abdullahi Baba vs Nigeria Civil Aviation & Anor (1991) 5 NWLR (pt 192) 388; Mpama vs FRN (2013) 53 (pt 1) NSCQR 190.
On the third and final issue dealing with the application of the principle in Idundun vs Okumagba (supra), Counsel submitted that the Court of first instance properly applied the principle and could not give judgment to the Appellant as the evidence of his witnesses is incoherent, unreliable and fail to meet the requirements of the law, in this instance establishing traditional history, citing Pada vs Galadima & Anor (2017) 273 LRCN 1. Since the decision of the Upper Area Court is informed by the visit to the locus, the Court was in order. The failure of the Appellant to discharge the burden makes the decision of the Upper Area Court affirmed by the High Court which is in order and therefore, the appeal should be dismissed.
It is now the turn of this Court to determine whether the lower Court was right in affirming the decision of Upper Area Court. Before this Court is the concurrent finding of facts by the Upper Area Court and the High Court.
The law is established that as an appellate Court I must respect the concurrent finding of facts by the two Courts. This is because the Court of first instance had the opportunity of seeing and hearing the witnesses which enable the Court to observe their mannerism and read their body language so as to make an informed decision to either accept the evidence or not. Body language and tone of speech is very virtual means of communication to determine what a person really means. The same word or phrase used by a person can mean different things depending on the tone used. This is why no appellate Court should be quick at interfering with the finding of facts by a lower Court. See Saleh v. Bank of the North Ltd (2006) 2-3 S.C 1, Arisons Trading & Engineering Co Ltd v. Military Governor of Ogun State & Ors (2009) LPELR-554 (SC). Like all general principles, there are exceptions. This general principle of non-interference with the finding of facts has an exception. It is this, if the finding is perverse, meaning it does not correspond with the evidence before the Court, the appellate Court can interfere. The apex Court has stated what will amount to perverse finding. In Adesina vs People of Lagos State (2019) LPELR-46403 (SC) along the above line, the apex Court held:
“The Supreme Court has indeed in a Plethora of cases stated what should first be available for the appellate Court or even the Apex Court to disturb concurrent findings. Any of those happenings that could make the appellate Court reverse such findings are stated hereunder thus: –
1. The findings of those Courts are perverse.
2. The findings have not been founded on legal evidence before the trial Court.
3. Where it is shown that the lower Courts relied upon or took into account extraneous matters which ought not to have been taken into account.
4. Where miscarriage of justice has been occasioned. See Babatunde v State (2013) 4 WRN 1 at 22, Atolagbe v Shorun (1985) 1 NWLR (Pt. 2) 360; (1985) 45 SC 250, Adimora v Ajufo (1988) 3 NWLR (Pt. 2) 360; Adimora v Ajufo (1988) 3 NWLR (Pt. 80) 1, Okulate v Awosanya (2000) 1 WRN 65, Enang v Adu (1981)11-12 SC 25.”
My decision on whether the concurrent finding of facts of the Court of first instance (i.e Upper Area Court Bambam), and the lower Court is perverse or not, will go a long way in determining the fate of this appeal. I will now address the issues formulated for determination. Both Counsels in the brief of the parties formulated 3 issues each for determination in this appeal. The issues are not radically different, in fact in substance, they are the same. In the circumstance, I will adopt the issues formulated by the learned counsel to the Appellant as they are clearer and straight forward which will invariably address the issues formulated by the learned counsel to the Respondents. I shall therefore, reproduce the Appellant’s issues and address same in resolving this appeal.
I will start with issue 1 which reads thus:
Whether the High Court of Justice Gombe State sitting on appeal against the decision of the trial Upper Area Court, Bambam was not in error in affirming the decision of the trial Court which failed to properly evaluate the evidence adduced before it. (Distilled from ground one)
Both Counsel agree with the duty of a Court to evaluate evidence before it. In the pursuit for doing justice, a Court will be guided by the law and the application of the facts to the law. The law does not change except the legislature passes another law repealing the former or amending same. The Court in interpreting the law will be guided principally by the tenet of justice. No law should be interpreted to promote injustice. The main duty and the function of a Court is to attain justice by evaluating the evidence before it, applying the law to same before arriving at a decision. In PDP v. INEC & Ors (2012) 2 S.C. (pt 3) 1, the apex Court held on this point thus:
“My Lord, Justice is all about fairness. Courts are set up to ensure that substantial justice is not only done but seen to have been done between the parties and in achieving that aim, rules of Court must at all times be interpreted in a way that the ends of justice are met.” Per RHODES-VIVOUR, J.S.C.
Evaluation of evidence implies that a Court will have to place the evidence on both sides of the imaginary scale of justice, compare both evidence and based on the circumstance without going outside the evidence before it take side with the evidence that is more believable. The law requires that the Court will not just state that he believes a particular story but must go further to state how he came about his finding and believe. See Segun vs The State (2021) LPELR-56603 (SC), A. G. Leventis (Nig) Plc v. Akpu (2007) 6 S.C (pt 1) 239.
The English word “evaluate” means to place value on something by careful appraisal and study. The Upper Area Court should in carrying out its duty to evaluate the evidence properly and carefully appraise and study the evidence before it before making a finding. The result of the careful appraisal and study is what is called finding. If a lower Court does not appraise the evidence before it before arriving at a finding; an appellate Court at that stage can re-evaluate the evidence.
The question now is whether, the Upper Area Court properly evaluated the evidence and whether the lower Court was right in affirming the decision of the Upper Area Court. The lower Court had held in page 120 of the record that the finding of the Upper Area Court that the Appellant did not prove his case before it is based on proper evaluation of the evidence before it. The case of the Appellant as stated before the Upper Area Court is that the land was cleared by Bilama which he cultivated and passed on to his heirs which eventually got to the Appellant. The Appellant stated how the Respondents’ father came into the land which is, as a result of the grant by the Appellant’s grandfather for him to cultivate as a close relation. He eventually died and his children including the Respondents came back and started claiming title to the land. This story is found at pages 3-4 of the record. On the side of the Respondents, all his case is that they saw their father on the land cultivating it. There is no evidence from the Respondents as to how their father came into the land or came about the land. This omission makes the case of the Appellant that his own father gave the land to Respondents’ father to cultivate and farm on it, more believable. While I agree that most of the testimony by the witnesses of the parties are hearsay, but the case as stated by both parties in pages 3-5 of the record makes the finding of the Upper Area Court at variance with the evidence before it. Even if the lower Court is not satisfied with the traditional evidence before it, I make bold to say that between the parties and the evidence before the Court, the Appellant had proved that it has a better title to the land than the Respondents. The law is trite to the effect that where there is competing interests over a land, title will be awarded to the party who has a better title. See Tanko v. Echendu (2010) 18 NLWR (pt 1224) 253, Ogbu v. Wokoma (2005) 14 NWLR (pt 944) 118.
In the light of the state of evidence before the Upper Area Court, the Court did not properly evaluate the evidence before it. The visit to the locus in quo and the finding therein makes no difference whatsoever as the Respondents could not give evidence as to how their father came about the land. They only saw their father cultivating part of the land in dispute. If the Upper Area Court had properly evaluated the evidence before it, it would not have arrived at the decision it did. The lower Court should have in the light of the perverse finding have interfered with the finding of the Upper Area Court, and should have re-evaluated the evidence and arrived at a finding that correspond with the evidence. Since the Court of first instance and the lower Court did not properly evaluate the evidence, I will do so in this judgment, this I will do as I address issue 3. I resolve this issue in favour of the Appellant.
Issue 2 dealing with fair hearing is couched in these words:
Whether the lower Court was not in error when it affirmed the decision of the trial Court which failed to conduct fair hearing, it treated such fundamental error as a mere irregularity. (Distilled from grounds two and four)
The concept of fair hearing in the process of adjudication cannot be over-emphasized. It is very important for the validity of a judicial process. Any judicial process done without affording the parties fair hearing amount to a nullity. This is without regard to how credible the process could or brilliant the judgment a product of that process could be. Lack of fair hearing takes away any credibility in the process. The absence of fair hearing nullifies a proceeding and consequently the judgment. If any of the parties succeeds in challenging fair hearing in the proceeding, the whole proceeding will be declared null and void and so is the judgment no matter how well conducted and brilliant the judgment can be. See Dingyadi & Anor vs. INEC & Ors (2010) LPELR-40142 (SC).
In view of the effect of a successful challenge of lack of fair hearing in a proceeding, a Court at whatever level must ensure that the proceedings are conducted in such a way that all the parties are given equal opportunity in presenting their case. This is the original tenet of fair hearing. In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the apex Court postulating on the doctrine of fair hearing held:
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See R Vs. Rand (1866) LR Q.B. 230, Ndukauba Vs Kolomo & Anor (2005) 4 NWLR (PT.915) 411, Ikomi Vs The State (1986) 5 SC 313, Akpamgbo Okadiobo Vs Chidi (2015) LPELR-24564 (SC) 1 AT 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See Ariori Vs Elemo (1983) 1 SC 81, Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23, Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678, Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant’s contentions are well founded, and the lower Court raised certain issues suo motu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.”
Similarly, in Ardo vs. INEC & Ors (2017) LPELR-41919 (SC), it was held thus:
“This Court in the case of DEDUWA vs OKORODUDU 4 LC 894 at 898 defined what is a fair Hearing: – “A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed M.R. said in ABBOT VS SULLIVAN. In MOHAMMED VS KANO N.A., Ademola C.J.N. (delivering the Judgment of the Court) said at page 426:- “We think a fair hearing must involve a fair trial and a fair trial consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing, it was suggested by Counsel is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case. We feel obliged to agree with this.” If, of course, there is no hearing of one party’s side of the case especially if it is through no fault of his own, this may also amount to no “Fair hearing” of his side of the case and he will not have had a “fair hearing in the determination of his civil rights and obligations to which he is entitled under Section 22(1) of the Constitution.” This Court had pronounced that “the right to fair hearing does not stop with the parties being present in Court.” It is a right to be heard at every material stage of the proceedings.”
No party should be denied the opportunity to present its case the way he knows how to, provided it is not done with disregard to the law and the rules of Court. A party who has been given such an opportunity but fails to take advantage of same cannot complain of lack of fair hearing. See Military Gov. of Lagos State & Ors vs. Adeyiga & Ors (2012) 2 SC (Pt. 1) 68, Ukwuyok & Ors vs. Ogbulu & Ors (2019) LPELR-48741 (SC).
The complaint of the Appellant is not that he was denied the opportunity to present his case but that the Upper Area Court entered into the arena by asking the Appellant witnesses’ questions while the Respondents’ witnesses had an easy way out as they were not asked questions. With due respect to learned counsel for the Appellant, I have gone through the record of appeal and I am unable to agree with the Appellant that he was denied fair hearing. The point must be made that the Court of first instance is an Area Court and therefore the strict rules of the Evidence Act are not applicable. That apart, I must state in clear terms that, the law allows Courts to ask witnesses questions to clarify certain things in the testimony of the witness(s). That a Court ask the witness questions does not infringe on the duty of a Court been an unbiased umpire or entitles the Court making a case for any party. The point must however be made that this power does not make a Court to descend into the arena. See Section 223 of the Evidence Act 2011 and Amachree vs Nigerian Army (2003) 3 NWLR (pt 807) 256, Mohammed vs The Nigerian Army (1998) 7 NWLR (pt 557) 232, Oteju vs Oluguna (1992) 8 NWLR (pt 262) 752.
In the circumstance, I agree with the learned counsel to the Respondents that the Appellant was not denied fair hearing and the Upper Area Court acted within legal limits. From the Record of Appeal, it is clear that the Court was involved in asking questions to all the witnesses and not only to the Appellant’s witnesses. I resolve this issue in favour of the Respondents.
The last and final issue is whether the lower Court was not in error in upholding the misapplication of the principle in Idundun vs Okumagba (supra). I reproduce the issue:
Whether the Gombe State High Court of Justice sitting on appeal against the decision of Upper Area Court, Bambam was not in error in upholding the decision of the trial Court which misconceived and misapplied in Idundun vs Okumagba to the case before it. (Distilled from ground three)
To appreciate this issue, the starting point is to state what is the principle in Idundun v. Okumagba (supra). This is the locus classicus which states the five ways by which title to land can be proved. The case has stood the test of time since it was decided on the 8th day of October, 1976 and served as a launch pad in ascertaining the five ways by which a person claiming title to land will establish his title. I quote from that case as follows:
“As for the law involved, we would like to point out that it is now settled that there are five ways in which ownership of land may be proved. We will now proceed to consider each of these five ways in order to see if the findings of the learned trial Judge can be seen to bring the evidence adduced in the case in hand within the ambit of any of them.
Firstly, ownership of land may be proved by traditional evidence as has been done in the case in hand. In our view, not only was the evidence of the witnesses called by the appellants rightly rejected by the learned trial Judge for good and sufficient reasons, we also think that he was right in not attaching any weight to the views expressed in the books cited in support of such traditional evidence. As Lionel Brett, JSC., (as he then was), rightly in our view, once pointed out in a learned address given by him at the University of Lagos to the Nigerian Association of Law Teachers:
“The Courts are not to be hypnotized by the authority of print. The crucial fact is that a book cannot be cross-examined, either as to the opinion expressed, or as to the claims of the author to have special knowledge. If the author is living, there is no reason why he should not be tendered as an expert witness, when this difficulty would vanish”.
No evidence was adduced to show that any of these books is generally acknowledged either in Nigeria or elsewhere as a standard work or as an appropriate authority on the relevant traditional history so as to enable the Court to resort, with justification, to its aid. (See Sections 58 and 73(2) of the Evidence Act, Cap. 62 and Adedibu v. Adewoyin 13 WACA 191 at page 192). Moreover, none of the authors of these books testified in support of the views stated therein and no explanation was given for this omission. For all these reasons, we share the apprehensions of the learned trial Judge about the value or weight of the traditional history as narrated by each of these authors, particularly as the authenticity and impartiality of the sources of their narratives cannot, for obvious reasons, be easily ascertained.
Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract (see Section 129 of the Evidence Act and Johnson v. Lawanson (1971) 1 All NLR p.56). As the appellants’ case was not based on any document of title, this requirement, in the circumstances of this case, is not particularly apposite.
Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner (see Ekpo v. Ita ll NLR p.68). It is clear from the judgment in the case in hand that the learned trial Judge completely, and for good reason, rejected the evidence in support of the acts of ownership put forward by the appellants while he accepted those given by the respondents.
Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done (see Section 46 of the Evidence Act, Cap. 62). Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence; moreover under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title (see Da Costa v. Ikomi (1968) 1 All NLR 394 at page 398). It cannot be gainsaid that, in the present case, not only did the learned trial Judge reject the appellants’ evidence as to possession of any portion of the land in dispute, he also found that the respondents have proved by evidence, which he accepted, that they are the owners of the land in dispute.
Finally, 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, may also rank as a means of proving ownership of the land in dispute (see Section 46 of the Evidence Act, Cap. 62).” Per FATAYI-WILLIAMS, J.S.C
For any party claiming title to land, he must show on the balance of probability on the strength of his case his title to the land in any of the above five ways. In doing that, the party is not expected to prove all, as the proof of one of the ways is sufficient. See Ayanwale v. Odusami (2011) LPELR-8143(SC).
The lower Court has held in agreeing with the Court of first instance that the Appellant has not proved his case. The finding and decision of the Upper Area Court is found at pages 22-31 of the records. At page 31, this is what the Court said:
“….. we realize that the plaintiff Abubakar Manaja failed to establish his claim, because of this, we dismiss his claim and confer title of this farmland to the defendant that is Haruna Dilta and Absulhamid Abdullahi as how the steps of this farmland are and base on the steps of the defendant.”
This decision, the lower Court affirmed by holding at page 121 of the record that the trial Court was right in applying the principle in the case of Idundun vs Okumagba. This is what the Court said:
“We align ourselves with the submissions of learned counsel to the respondent and hold that the trial Court was right in applying the principle in the case of Idundun vs Okumagba. Issue 3 is resolved in favour of the respondent.”
The implication of this is that both the Upper Area Court and the High Court agrees that the Appellant was unable to prove his title to the land by any of the five ways stated in Idundun vs. Okumagba (supra) while on the other hand, the Respondent is agreed to have proved his title by one of the five ways. I have stated the case as presented by each of the parties. For avoidance of doubt, I state that the Appellant is relying on traditional history. The Appellant case stated in page 2 of the record is that the land in dispute was inherited from his forefathers and his parents. Bilama founded the land by clearing same which he left for his heirs with successive owners till it got to the Appellant. He called 3 witnesses in support of his case. PW1 and PW2 who are boundary witnesses only gave hearsay evidence as to the Appellant grandfather being the owner of the land. The law on hearsay evidence is clear which is that hearsay evidence is inadmissible. See Itodo v. State (2019) LPELR-49069 (SC), Sama’ila v. State (2021) LPELR-53084 (SC).
There seem to be no evidence in clear support of traditional history which the Appellant seem to rely on.
For any party to succeed in proving title by traditional history, such a person must prove who founded the land, how it was founded and the name of successive owners in an unbroken chain till it gets to the present owner who is a party before the Court. For evidence on traditional history to be valid three conditions must be satisfied. These are: the name of the founder of the land in dispute; how it was founded by him; and finally the names of all the intervening owners from the founder to the present person on the land. This must be by unbroken chain. These three conditions must be satisfied before a party can be said to have proved traditional history as the bases of the title to the land. I will refer to a few cases here.
Let us take a little excursion into the law as to how a party can prove title by traditional evidence or traditional history. The party relying on same must produce by way of evidence the family tree or genealogy of the family from the founder to the person claiming title. A mere family tree or genealogy tracing will not be enough but the evidence must relate the ownership of the land passing from one person to the other till the Appellant. In Awodi & Anor vs. Ajagbe (2014) 12 SC (Pt. 1) 76, the apex Court in driving home this point held as follows:
“… the law is now settled that where a person relies on traditional history as his root of title to land, the onus is on him to plead the root of title and the names and history of his ancestors. He should lead evidence to show same without leaving any yawning gap.
A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a claimant. See Mogaji v. Cadbury (1986) 2 NWLR (Pt. 47) 393, Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386, Akinloye v. Eyiyola (1968) 2 NMLR 92, Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 and Odi v. Iyala (2004) 4 SCNJ 35 at 54. Further, the weakness of the defendant’s case in a land matter touching on declarations, does not assist the plaintiff’s case. He sinks or floats with his case. See the case of Animashaun v. Olojo (1991) 10 SCNJ 143.”
In the same judgment, Ngwuta, JSC in his contribution was clearer on this point. His Lordship held as follows:
“In a claim for title to land based on traditional history, the plaintiff has to plead and prove each of the following:
(1) The person who founded the land and exercised acts of possession.
(2) How the land was found, and
(3) The persons on whom the title to the land devolved from its founder to the plaintiff. See Obioha v. Duru (1994) 10 SCNJ 48 at 61 ratios 6 and 7, Piaro v. Tenalo & Ors (1976) 12 SC 31. The pleading of the devolution as well as the evidence in support must be reliable and credible or plausible otherwise the claim for title will fail. See Eze v. Atasie (2000) 6 SCNJ 209 at 218, Elias v. Omo-Bare (1982) 5 SC 25. The plaintiff must rely on his pleading, he cannot plead traditional history and abandon his pleading to rely on acts of ownership over a long period of time. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 160.”
The evidence of the Appellant’s witnesses may be seen not satisfying the above requirement in full. However, since it is a trial before the Upper Area Court, the strict rules of evidence will not be applicable in as much as the decision must be such that its meet the tenet of justice. PW3 is a more acceptable evidence as to the ownership of the land. He testified that the land belonged to Bilama, the grandfather of the Appellant and his children cultivated the farmland. From the case of the Appellant and the evidence of PW3, the Respondents’ father was permitted to cultivate the land belonging to the Appellant’s father.
On the side of the Respondent, all they said as their case is that they grew up to see their father cultivating the land. They did not state how their father came about the land. They also called 3 witnesses. The DW1 evidence is to the effect that Ibrahim cleared his land which is boundary to the farmland in dispute. DW2 gave contradictory evidence as to who cleared the land. This is a contradictory which makes the case of the Appellant more believable.
From the state of the evidence before the Court, the Appellant has a better case than the Respondents on the platform of justice. The Appellant has proved by acts of possession through the witnesses that the Appellant grandfather was the person who first settled on the land between the parties. He gave part of the land to the Respondents’ father to cultivate. This is the evidence before the Upper Area Court upon which the Court wrongly gave judgment to the defendant, and the lower Court affirmed the decision. I have no difficulty in the light of this to hold that the lower Court was in error in the misapplication and misconception of the principles in Idundun vs Okumagba (supra).
The evidence before the Court discloses that the father of the Appellant gave part of the land to the Respondents’ father to farm on it. Looking at the principle in the case of Idundun vs Okumagba from the evidence before the Court, the Appellant has shown acts of ownership more than the Respondent. The justice of the case demands that the Appellant who seem to prove the initial ownership of the land should be awarded the title to the land. The Appellant had shown that his grandfather is the founder of the land in dispute which he gave to the Respondents’ father to cultivate. This is better and more believable evidence than that of the Respondents who do not know how their father came about the land. They just grew up meeting their father on the farmland. In the circumstance, I resolve this issue in favour of the Appellant.
The Appellant is seeking from this Court the following relief:
1. An order to allow the appeal and set aside the decision of the High Court of Justice of Gombe State which affirmed the decision of the trial Upper Area Court Bambam.
2. An order of this Honourable Court directing the lower Court to re-evaluate the evidence adduced at the trial Court which the lower Court failed to do and confirm the land to the Appellant.
3. IN THE ALTERNATIVE, to order for the retrial of the matter before another Court or judge.
Having resolved issues 1 and 3 in favour of the Appellant, it stands to reason that this appeal be allowed and the decision of the High Court of Gombe in Appeal No. GM/84A/2018 which affirmed the decision of the trial Upper Area Court Bambam in Suit No. CVFI/27/2019 is hereby set aside.
The Appellant second relief is an order for the lower Court to re-evaluate the evidence and confirm the Appellant as the owner of the land or in the alternative order a retrial. If I have to grant relief 2 in the main or in the alternative, I am not supposed to make any findings that will sway the lower Court or any Court that will retry the matter. I also cannot see how I can resolve the issues raised for determination without dealing with the substance of the matter. What is the effect of my holding that the lower Court did not properly evaluate the evidence before it and apply the principle of Idundun vs Okumagba correctly and in setting aside the judgment. This is a Court of law and justice and sometimes a Court has powers to give consequential order even if it is not sought for provided it flows naturally from the main order. See Eze vs Gov. Abia State (2014) 14 NWLR (pt 1426)192, O. S. I. E. C. vs A. C. (2010) 19 NWLR (pt 1226)273.
As a consequential order, having re-evaluated the evidence and on the premise that when there are competing interests in a land, the person with a better title will be granted title to the land, I declare the Appellant the owner of the farmland that was in dispute at the lower Court.
I grant the above reliefs and hold for the Appellant.
JUMMAI HANNATU SANKEY, J.C.A.: I have read the judgment delivered by his Lordship, Ebiowei Tobi, JCA, and I agree.
Both the Appellant and the Respondents in the suit placed before the Upper Area Court, Bambam contested the ownership of the land in dispute. Both parties relied on traditional history as the source of their ownership of the land out of the five ways by which title can be proved – Arije V Arije (2018) LPELR-44193(SC) 34, B-G, Soronnadi V Durugo (2018) LPELR-51-54, F-B, Oyewusi V Olagbami (2018) LPELR-44906(SC) 28, C-F, Aya V Ojego (2020) LPELR- 51392(CA) 16-17, A, Idundun V Okumagba (1976) LPELR-1431(SC) 23-26, D. They called three witnesses a-piece in proof of their competing claims. At the close of trial and visit to the locus in quo, the trial Upper Area Court Judge gave judgment in favour of the Respondents. Aggrieved, the Appellant appealed to the lower Court where he complained on four grounds. Upon hearing the appeal, the lower Court affirmed the decision of the trial Upper Area Court and dismissed the appeal. Still aggrieved, the Appellant has appealed to this Court.
One of the complaints of the Appellant is that the trial Upper Area Court failed to properly evaluate the evidence placed before it in arriving at its decision. Yet, the lower Court proceeded to affirm the decision without also evaluating the evidence. Upon examining the record of the trial Court, this complaint was completely borne out. The Appellant who based his claim for title on traditional history, adduced evidence through three witnesses. While it can be said that the evidence of PW1 and PW2 was not quite helpful, the evidence of PW3 clearly confirmed that the land was founded by grandfather of the Appellant who gave a portion of it to the Respondents’ father to cultivate. Placed side by side with this, is the claim to title of the Respondents. While they also base their claim on traditional history and called witnesses in this regard, they were upfront with the fact that they did not know how their grandfather came by it. All they know is that they saw their father cultivating the land. They therefore made no pretence at attempting to establish the traditional history upon which they base their claim.
I am at one with the lead judgment that neither of the parties established their claim via traditional history since they could not trace the genealogy of how it passed from the founder down to their fathers and then to them, i.e., an unbroken chain of the intervening owners of the land – Awodi V Ajagbe (2014) 12 SC (Pt. 1) 76, Odi V Iyala (2004) 4 SCNJ 35, 54, Magaji V Cadbury (1986) 2 NWLR (Pt. 47) 393.
Still, through it all, the evidence adduced by the Appellant preponderated in his favour since PW3 corroborated his claim that his grandfather founded the land and that a portion was given to the Respondents’ father to cultivate. In addition, the Appellant proved his possession of the land which pointed to his ownership of same to the exclusion of the Respondents. Consequently, from an evaluation of the evidence of both parties, which the trial Court failed to do, I agree that the Appellant proved a better title to the land than the Respondent. He was therefore entitled to Judgment. This is because it is settled law that where there are competing interests over land, title will be awarded to the party who has a better title – Tanko V Echendu (2010) 18 NWLR (Pt. 1224) 253; Ogbu V Wokoma (2005) 14 NWLR (Pt. 944) 118.
It is therefore for this reason and the more detailed reasons in the leading judgment that I too allow the appeal. I abide by the consequential orders made therein.
IBRAHIM SHATA BDLIYA, J.C.A.: I was privilege to have read before now, the draft copy of the leading judgment of my learned brother, EBIOWEI TOBI, JCA, whose reasoning and conclusion I adopt as mine. I have nothing more to add. I allow the appeal, and set aside the judgment of the lower Court, delivered on the 19th of November, 2020. I abide by the orders made in the lead judgment.
Appearances:
M. A. Galaya Esq. For Appellant(s)
C. D. Kadala Esq. For Respondent(s)