MARAM & ORS v. DANIEL & ANOR (2020)

MARAM & ORS v. DANIEL & ANOR

(2020)LCN/14720(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, November 05, 2020

CA/J/103/2020

RATIO

APPEAL: REQUIREMENT FOR FORMULATION OF GROUNDS OF APPEAL

It is settled that formulation of a ground of appeal must arise from the ratio decidendi of the judgment. An obiter dictum cannot form the basis of a ground of appeal. See Titilayo Plastic Ind. Ltd. Vs. Fagbola (2019)14 NWLR (Pt. 1691) 88 at 102. PER HASSAN, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO PROLIFERATION OF ISSUES

Appeals are not won on a large number of grounds and issues. On the contrary, appeals are won on the quality of the content of the ground of appeal and issues distilled therefrom. Prolixity of issues formulated from the multiple grounds of appeal is not a merit as it is more likely to obscure the core issues to be determined. Multiplicity of issues tend to reduce most of them to trifles. Issues formulated must have the content and character of issues and should be based on substantial law or fact rather than on numerous trifling slips. The reason for raising issues for determinations is to enable the parties narrow down the issues in the grounds of appeal filed by them, in the interest of accuracy, clarity and brevity. See N.F. & V.C.B Vs. Adegboyega (2019) 4 NWLR (Pt. 1662) 283 at 293 and Bayero Vs. Mainasara & Sons Ltd. (2006) 8 and NWLR (Pt. 982) 391. PER HASSAN, J.C.A.
LAND LAW: BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

The law is settled that in an action for declaration of title to land, the burden is on the claimant to prove with credible evidence that he is entitled to the declaration which he seeks. In doing so, he must succeed on the strength of his case and not on the weakness of the defendant’s case – Edosa Vs. Ogiemware (2019)8 NWLR (Pt. 1673) 1 at 4. See also Ilori Vs. Ishola (2018)15 NWLR (Pt. 1641) 77 and Faleye Vs. Dada (2016)15 NWLR (Pt. 1534) 80.

A declaratory relief will not be granted even on admission. The claimant must satisfy the Court that he is entitled to the relief, failure of which the case will be dismissed. PER HASSAN, J.C.A.

LAND LAW: METHODS BY WHICH OWNERSHIP OF PROPERTY CAN BE ESTABLISHED

The methods by which ownership of property may be established have been firmly settled in the case of Idundun Vs. Okumagba (1976) 9 – 10 SC 227.
(1) By traditional evidence
(2) By production of documents title duly authenticated and executed
(3) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(4) By act of long possession and enjoyment.
(5) By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
See also Amogbado Vs. Faruk (2019)1 NWLR (Pt. 1653) 292 at 295. PER HASSAN, J.C.A.

INHERITANCE: REQUIREMENT OF A PARTY CLAIMING TITLE TO LAND THROUGH INHERITANCE

A claim of title through inheritance must be supported by sufficient pleaded facts showing who founded the land, how it was founded, the person who owned the land from the founder up to the time it became vested in the claimant. Where sufficient facts have not been pleaded disclosing the above requirements, any evidence adduced on such source of claim of title goes to no issue- Bukar Vs. Bashir (2014) 11 NWLR (Pt. 1417) 68 at 71. See also Okegbemi Vs. Akintola (2008) 4 NWLR (Pt. 1076) 53. PER HASSAN, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

MAI ANGWA TOKOT MARAM 2. IBRAHIM MAFULUL MARAM 3. MATHIAS GUDEL MARAM 4. DANIEL MAMWAN MARAN APPELANT(S)

And

1. UBUR DANIEL 2. UPIS HABILA (NEE JAKDEL) RESPONDENT(S)

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the Plateau State High Court Holden at Jos delivered on the 12th day of February, 2020 in suit No. PLD/J/253/2017 by Hon. Justice S.P. Gang.

The 1st respondent as plaintiff at the trial Court, by an Amended Writ of Summons and Statement of Claim dated 10th September, 2018 and filed on the 18th of September, 2018 claims against the appellants as defendants jointly and severally for:
(a) A declaration that all the farmlands in dispute situate at;
(i) Husu-Zai along Mangu Road after the bridge with Hills and ruins forming some of the fixtures on the land
(ii) Kufai-down Kopiyal, Bokkos and
(iii) Kopiyal belong to the plaintiff and she is entitled to same.
(b) An order of perpetual injunction restraining the defendants, all the Maram family, either by themselves or through their agents, assigns, representatives or heirs or however described from further trespassing into the farmlands in dispute.
(c) An order of this Court directing the Defendants to vacate part of the farmlands in dispute they unlawfully entered.

(d) The sum of N3,000,000.00 as general damages for unlawful entry into the farmlands in dispute.
(e) Cost of this action.

It is noted that the 1st – 4th defendants/appellants were the original defendants in the suit and the 2nd respondent (herein) was joined as the 5th defendant vide the order of the trial Court made on 10th July, 2018.

In response to the plaintiff/1st respondent’s claims, the defendants/appellants filed a joint statement of defence and the plaintiff/respondent filed a reply to the joint statement of defence.
The plaintiff/1st respondent in proof of her case called three witnesses and the defendants/appellants called one witness. At the conclusion of trial, judgment was entered in favour of the plaintiff/1st respondent.

Aggrieved with the judgment, the appellants’ appealed to this Court on seventeen grounds of appeal with their particulars. The Notice of Appeal was dated and filed on the 3rd of March, 2020 with the leave of the Court.

The appellants’ brief dated the 28th day of May, 2020 was filed on the 4th of June, 2020. Learned counsel for the appellants Bitrus Fwangshak Esq. identified seven

issues for determination from the seventeen grounds of appeal.

The issues are:
1. Whether the lower Court is justified in law in its refusal to follow the decision of the Supreme Court in the case of Addah Vs. Ubandawaki (2015)7 NWLR (Pt. 1458) 325 at 346 paras H-C, and whether that failure is not a denial of fair hearing (Grds 1,2,3,4, 11 and 17).
2. Having regard to the evidence elicited from the cross-examination of PW1, PW2 and PW3 regarding the root of title of the 1st respondent, whether it can be said that the 1st respondent truly proved her root of title in accordance with the provisions of the law to entitle her to judgment in her favour (Grd 12).
3. Having regard to the totality of the evidence on the record, whether the possession of the land by the appellants is as a result of the loan from PW1 (Grds 8, 9, and 10).
4. Whether the appellants who merely defended the action of the 1st respondent are mandated in law to establish a root of title when the 1st respondent (as plaintiff) is entitled to succeed on the strength of her case and not on the weakness of the other side (Grds 13, 14, 15 and 16).

Having regard to the peculiar facts and circumstances of the proceedings leading to this appeal, whether the witness statement on oath of DW1 does not establish the special defences raised taking into consideration the fact that the evidence was not challenged by the 1st respondent during cross-examination (Grd 6)
6. Having regard to the settled position of the law regarding a visit to the locus-in-quo, whether a person merely defending a suit is mandated to apply for a visit when the plaintiff has woefully failed to prove the identity of the parcel of land in issue. (Grd 5).
7. Whether the reply address of the appellants did not answer the points of law raised by 1st respondent (Grd 7).

The appellant’s reply brief was dated and filed on the 24th of July, 2020. The appellants’ counsel adopted the briefs and urged the Court to allow the appeal.

The respondent’s brief was dated and filed on the 10th of July, 2020. The brief settled by Samaila Muhammed has four issues distilled for determination thus:
i. Whether by the evidence of the parties before the lower Court, the appellants were given fair hearing and the 1st respondent through the

preponderance of the evidence she and her witnesses adduced, deserved the judgment she was given (Grds 10,11,13,14,15,16 and 17)
ii. Whether the 1st respondent really proved the root of her title to the lands in dispute to get the judgment and if the Appellants proved any title and if she was caught up with the doctrine of estoppel, limitation of action and laches and acquiescence (Grds 6, 8, 9, 10 and 12).
iii. Whether it is mandatory that the Court must visit locus in quo before delivering its judgment when identities of the lands are not in dispute (Grds 1,2,3,4, and 5).
iv. Whether the reply address filed by the appellants at lower Court satisfied the conditions for a reply address (Grd 7).

The respondent’s counsel adopted the brief and urged the Court to dismiss the appeal.

I must say that the appellant formulated seventeen grounds of appeal and seven issues for determination. The question to be asked is what have seventeen grounds of appeal and seven issues got to do in this appeal that is not complicated.

A ground of appeal consists of error of law or fact alleged by an appellant as the defect in the judgment appealed

against, which he relies on to set it aside –F.B.N. PLC. Vs. A.G. Fed. (2018)7 NWLR (Pt. 1617)121.

In this appeal, sixteen of the seventeen grounds of the appeal are on the evaluation and findings by the trial Court. They are basically complaints on the evaluation of the evidence placed before the trial Court. In substance after analyzing the sixteen grounds of appeal essentially captioned the portions of the judgment of the lower Court, the grounds of appeal are challenge to the findings of the lower Court, said to have occasioned a miscarriage of justice. While the complaint in ground five of the grounds of appeal is on the opinion of the trial Court which is obiter. It is settled that formulation of a ground of appeal must arise from the ratio decidendi of the judgment. An obiter dictum cannot form the basis of a ground of appeal. See Titilayo Plastic Ind. Ltd. Vs. Fagbola (2019)14 NWLR (Pt. 1691) 88 at 102. Ground five is therefore struck out for being incompetent.

Appeals are not won on a large number of grounds and issues. On the contrary, appeals are won on the quality of the content of the ground of appeal and issues distilled

therefrom. Prolixity of issues formulated from the multiple grounds of appeal is not a merit as it is more likely to obscure the core issues to be determined. Multiplicity of issues tend to reduce most of them to trifles. Issues formulated must have the content and character of issues and should be based on substantial law or fact rather than on numerous trifling slips. The reason for raising issues for determinations is to enable the parties narrow down the issues in the grounds of appeal filed by them, in the interest of accuracy, clarity and brevity. See N.F. & V.C.B Vs. Adegboyega (2019) 4 NWLR (Pt. 1662) 283 at 293 and Bayero Vs. Mainasara & Sons Ltd. (2006) 8 and NWLR (Pt. 982) 391.
Since the appellate Court is at liberty to reformulate issue or issues from that of any of the parties in order to give it precision and clarity on condition that they flow from the grounds of appeal, it is my view, that the only issue for consideration in this appeal is:
“Whether the trial Court properly evaluated the evidence placed before it by the parties.”

The appeal will therefore be determined on this sole issue taking into consideration

the submissions of counsel on issues formulated by them.

ISSUE ONE
“Whether the trial Court properly evaluated the evidence placed before it by the parties.”
Learned counsel for the appellant submitted that the subject matter of litigation being a declaration of title to land, the claimant had a duty to establish with certainty the identity of the piece of land she is seeking for declaration. That the claimant is to succeed on the strength of her case and not on the weakness of the defence. He relied on Kodilinye Vs. Odu (1963)1 ALL NLR 417 and Udegbe Vs. Nwokafor (1963) ALL NLR 417.

Relying on Aiteola Vs. Pedro (2014)13 NWLR (Pt. 1424) 438-439 paras H-A and Oke Vs. Eke (1982)12 SC 218, it is submitted that the respondent as plaintiff has failed to satisfy the requirement of the law to be entitled to a declaration of the land in dispute which entitled the suit to be dismissed. He referred to Addah Vs. Ubandawaki (2015) 7 NWLR (Pt. 1458) 325 at 346 para H-C to submit that, to establish identity of the land, the pleadings must sufficiently describe the land to the extent that a surveyor going through the record can produce an

accurate plan of the land. That the principle in Addah Vs. Ubandawaki (supra) does not stipulate that if the parties are not literate, they are agrarian. The decision is binding on the lower Court being a decision of the Supreme Court. That the trial Court was wrong to refuse to follow the decision of Addah Vs. Ubandawaki (supra) on the rule of stare decision. He relied on Suleiman Vs. C.O.P Plateau State (2008)8 NWLR (Pt. 1089) 298 at 331; and George Vs. FRN (2014)5 NWLR (Pt. 1399)1 SC and Ardo Vs. Nyako (2014)10 NWLR (Pt. 1416) 591 SC.

Relying on the case of Dairo Vs. Regt. Trustees, T.A.D Lagos (2018)1 NWLR (Pt. 1599) 62 at 81-82; Umesie & Ors. Vs. Onuaguluchi & Ors. (1995)9 NWLR (Pt. 421) 515; and Nwokoro & Ors. Vs. Onuma & Anr. (1999)12 NWLR (Pt. 631) 342, among others, it is submitted that the decision in Ubandawaki which is in all fours with the present case, which the trial Court refused to follow, amount to abandoning its exalted position and descended into arena of conflict to assist one party against the other. That a general traverse serves the same purpose of mandating a plaintiff to prove his or her case just as specific

traverse would do. That this being the position of the law, the appellants apart from the general traverse, went further to give specific denial of the size, shape, boundary, location and dimension of the land. Submitting further, appellants’ counsel, argued that aside the general traverse, the respondent as plaintiff would not have been relieved of her duty to prove her case on its strength. He relied on Imoh Vs. Onanuga (2013)15 NWLR (Pt. 1376) 139 at 153.

Referring to the evidence of PW1, PW2 and PW3, counsel argued that their evidence cannot be the findings of the Court to hold that the parcel of the land is ascertainable. That the trial Court should always give a wholistic approach to the pleadings presented before it. The Court was referred to Okochi Vs. Animkwoi (2003)10 NWLR (Pt. 851)1 and Nigeria National Petroleum Corporation Vs. Idi Zaria (2014) LPELR 22362 CA.

Referring also to paragraphs 4 and 38, it is submitted that they are frontal and specific traverse and not general traverse. He referred to Oyewusi Vs. Olagbami (2018)14 NWLR (Pt. 1639) 297 and Exxon Mobil Corporation Vs. Archianga (2018)14 NWLR (Pt. 1639) 229, to submit that

the lower Court was wrong in holding that paragraph 38 of the joint statement of defence did not put the identity of the land in issue. That even if the appellants did not put the identity of land in issue, the respondent’s claim must still fail because the claim for land is coupled with an order for perpetual injunction which cannot be granted over an unidentified area. The case of Mogaji Vs. Cadbury Nig. Ltd. (1985)2 NWLR (Pt. 7) 393, was referred to. That the evidence on record does not support the holding of the lower Court that the parcel of land is ascertainable.

It is also the argument of the appellants’ counsel that failure of the Court to consider the aspect of the appellants’ case and follow the decision of Addah Vs. Ubandawaki (supra) is a violation of the appellants’ constitutional right to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria (as amended). The cases of Auwalu Vs. FRN (2018) 8 NWLR (Pt. 1620) and Adedeji Vs. Obajimi (2018)16 NWLR (Pt. 1644) 146, was referred to.

Submitting further, counsel argued that from the evidence of PW1, PW2 and PW3, the evidence as to who

founded the land in dispute is at variance with the pleadings, the consequence of which is that their evidence goes to no issue. He referred to Omisore Vs. Aregbosola (2015)15 NWLR (Pt. 1482) 1; Yahaya Vs. Dankwambo (2016)7 NWLR (Pt. 1511) 284 and Alhassan Vs. Ishaku (2016)10 NWLR (Pt. 1520) 230.

Learned counsel for the appellant argued that the issue of possession of the land by the appellants as a result of loan from the PW1, Hosea Mamwan, was demolished under cross-examination but the lower Court shut its eyes to this fundamental aspect of the case. He referred to paragraph 7 of the witnesses statement on oath of PW1 at page 185 of the record. That the issue of loan being the fundamental part of the 1st respondent’s case was the reason why the appellants were said to be in possession. It is submitted that the evidence of PW1 under cross-examination denying the loan, implies that there is no evidence on record to prove that the appellants were in possession of the land on loan. The Court was referred to Addah Vs. Ubandawaki (supra) and Emegokwue Vs. Okadigbo (1973) ALL NWLR 134 at 138 and the evidence of DW1 at page 194 of the record where

he denied that the land in dispute was not given to the appellants by PW1.

Submitting further, counsel argued that, the appellants as defendants at the lower Court who did not counterclaim were not obliged to establish the root of title of the land in dispute, as their role was only to defend the claim against them. He relied on Dabup Vs. Kolo (1993) 9 NWLR (Pt. 317) 254 and Lokpobiri Vs. Ogola (2016)3 NWLR (Pt. 1499) 328. That the position of the law is settled, he who asserts must prove, and the 1st respondent who asserts has the burden of proving her entitlement to the claim. He referred to Arum Vs. Nwobodo (2004)9 NWLR (Pt. 878) 411.

Referring to the evidence of DW1, counsel submitted that he led credible evidence to establish the averment in the pleadings dealing with the jurisdiction of the lower Court which the 1st respondent did not join issues with the appellants on the said points and therefore deemed unchallenged and established. The Court was referred to Ighalo Vs. State (2014) 13 NWLR (Pt. 2016) 17 NWLR (Pt. 1540) 1 and Akpagher Vs. Gbungu (2015)1 NWLR (Pt. 1440) 209.

It is also the submission of the appellants that they have

exercised numerous acts of ownership and possession on the land without hindrance by the 1st respondent, and by the 1st respondent’s showing the appellants have been on the land as far back as 1965, but this evidence, he said was debunked by DW1 under cross-examination at page 195 of the record. That there is nowhere in the pleadings or evidence of the 1st respondent that she ever challenged the appellants until 2017 when this suit was filed.

It is finally submitted that the lower Court was wrong in discountenancing the reply brief of the appellants which answered the points raised by the 1st respondent. That the findings of the trial Court is perverse as it was not borne out from the evidence on record, and therefore liable to be set aside. The Court was referred to Ogundele Vs. Agiri (2009)18 NWLR (Pt. 1173) 219 and urged to resolve in favour of the appellants.

Responding, learned counsel for the 1st respondent submitted that the evidence of the plaintiff/1st respondent and that of her witnesses clearly proved the root of title to the land and their evidence was not debunked. That the evidence of DW2 who was the 5th defendant at the lower

Court supported the evidence of the plaintiff/1st respondent. He referred to paragraphs 10,11,12 and 13 of the statement on oath of the plaintiff/1st respondent at page 17 of the record.

It is submitted that the appellants who through their sole witness told the Court under cross-examination that they inherited the lands from their forefathers but they did not mention any name of even the person that first cleared the land in dispute. Relying on the case of Atanda Vs. Iliyasu (2013)6 NWLR (Pt. 1351) 529 at 562 paras F-G, it is submitted that parties are bound by their pleadings and evidence must only be given on facts pleaded.

Submitting further, the 1st respondent’s counsel argued that the 1st respondent could not be said to have slept over her right by waiting until 2017 to file the suits Nos. UACM/CV34/2010 and PLD/J/181/2011 which were not proved, because the suits only commenced but were never decided. That the 1st respondent made a complaint to the traditional ruler of Bokkos but the appellants refused to deliver the lands to her which prompted her to institute an action against them.

It is also submitted on behalf of the 1st

respondent that the appellants cannot complain of denial of fair hearing having presented their case and called a witness to testify on their behalf. That this is even after the plaintiff/1st respondent had closed her case, that the Court obliged them to allow them to file their statement of defence and to call their witnesses. He referred to Ogo-Ngadi Vs. FRN (2018)8 NWLR (Pt. 1620) 29 at 52 paras C-F, to submit that the basic attributes of fair hearing include, hearing both sides; giving equal treatment, opportunity and consideration to all concerned; hearing the proceedings in public and doing justice to the case.

Learned counsel submitted that the plaintiff/1st respondent proved the root of her title confirmed by the evidence of DW2, through traditional evidence which was not contradicted. The Court was referred to Opoto Vs. Anaun (2016)16 NWLR (Pt. 1539) 437 at 475-476.

That the defendants/appellants having failed to prove their root of title to the lands in dispute, their claim for possession cannot be sustained as they have become trespassers for refusing to deliver possession when they were asked to do so.

The contention of the 1st

respondent is that the appellants were aware of her claim over five pieces of land entrusted to Hosea Maram out of which two were recovered. That the remaining three pieces of land in possession of the appellants upon which the appellants relied on Ron Tradition that a woman does not have a right of inherence will not hold because the 1st respondent has no relationship with the appellants to be deprived of her inheritance.

That the evidence of DW1, the lone witness of the appellants is at variance with the pleadings of the defendants/appellants at the lower Court as he was not even born when the land was entrusted to PW1, neither was he born when PW1 let his late brother into the land for farming. That he did not know the history of the land and even the father of the plaintiff/1st respondent.

With regard to the issue of identity of the land, it is the submission of the 1st respondent’s counsel that the plaintiff/1st respondent and her witnesses vividly described the lands in dispute without contradictions, and the appellants never challenged the identity of the lands.

It is also submitted on behalf of the 1st respondent that all the

parties in the case are rural dwellers known to each other and their farms and thus the problem of identity was not in issue.

Referring to the decision in Addah Vs. Ubandawaki (supra) which the appellants made heavy weather, it is submitted that the decision did not bind the lower Court, since the plaintiff/1st respondent discharged her duty of proving the lands in dispute. That the judgment of the trial Court was based on the pleadings of the parties and the evidence adduced before it. He referred to Addah Vs. Ubandawaki (supra) at page 347.

On the issue of loan, it is submitted that nobody contradicted PW1 on his evidence that he allowed his relations to be farming on the lands until when they would be returned to the 1st respondent being the rightful owner.

It is finally submitted that the trial Court was right to discountenance the reply brief of the defendants/appellants because it was re-arguing the already argued issues in the main written address which should not be the case. He relied on Brown Vs. State (2012) 3 NWLR (Pt. 1287) 207 at 247 paras A-B and Aerobell (Nig.) Ltd. Vs. N.D.I.C. (2017)5 NWLR (Pt. 1558) 203 at 230 paras G-H.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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We are urged to resolve in favour of the 1st respondent.

The issues the appellants claimed to have been raised by the 1st respondent that necessitated their filing of a reply brief are not fresh issues that require the filing of a reply brief. They are response to the arguments of the appellants canvassed in their main brief of argument. The reply brief is re-arguing what has already been argued, hence it is discountenanced.

A declaratory relief will not be granted even on admission. The claimant must satisfy the Court that he is entitled to the relief, failure of which the case will be dismissed.

The methods by which ownership of property may be established have been firmly settled in the

case of Idundun Vs. Okumagba (1976) 9 – 10 SC 227.
(1) By traditional evidence
(2) By production of documents title duly authenticated and executed
(3) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(4) By act of long possession and enjoyment.
(5) By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
See also Amogbado Vs. Faruk (2019)1 NWLR (Pt. 1653) 292 at 295.

The appellants in their joint statement of defence at the lower Court deposed in paragraphs 8 and 9, that the land has been their own from time immemorial, from their ancestors which devolved to them in accordance with the Ron native law and custom.
That right from the time of founding of the respective parcels of land of the defendants, they have been in uninterrupted, unhindered and unbroken de facto possession and have never relinquished their title to the plaintiff, her father or any other person whatsoever.

It is important to state that throughout the forty-two paragraphs of the joint statement of defence of the defendants/appellants, there is no deposition reflected therein as to how the appellants ancestors founded the lands that devolved to them. The evidence of DW1 who is the sole witness of the appellants is also not helpful to the appellants, under cross-examination he said the land on which he and his brother are farming forms part of the lands in dispute.
The plaintiff/respondent on her part testified to the fact that she inherited the lands in dispute from her late father. A claim of title through inheritance must be supported by sufficient pleaded facts showing who founded the land, how it was founded, the person who owned the land from the founder up to the time it became vested in the claimant. Where sufficient facts have not been pleaded disclosing the above requirements, any evidence adduced on such source of claim of title goes to no issue- Bukar Vs. Bashir (2014) 11 NWLR (Pt. 1417) 68 at 71. See also Okegbemi Vs. Akintola (2008) 4 NWLR (Pt. 1076) 53.
In her Amended Statement of claim at Pp. 4-5 of the record the plaintiff/1st respondent

deposed in paragraphs 10-13 as follows:
Paragraph 10 – The plaintiff avers that she inherited the farmlands from her late father Madian Lektu and that during the lifetime of her father, he was in possession and was farming the farmlands without being challenged by the defendants, their relations or any one.
11- The plaintiff avers that the farmlands were inherited by her late father from his late father Lektu Macham.
12- The plaintiff avers that her grandfather Lektu Macham got the farmlands by way of inheritance from his late father Macham who first cleared the farmlands.
13- The plaintiff avers that her father was farming the farmlands till when he handed the farmlands to Hosea Mamwan Maram on trust due to the tender age of the plaintiff at that time.
The above pleaded facts were in line with her evidence as reflected in her Amended witness on oath paragraphs 11-13. Her evidence was not challenged or controverted under cross-examination.
PW1 is Hosea Mamwan Maram. In paragraph 8 of his Amended Witness Statement on Oath, he averred that the lands in dispute were all personal farmlands of the plaintiff/1st respondent’s

father. He deposed in paragraph 4 that the lands in dispute do not belong to the defendants/appellants despite the fact that they are his relation. In paragraph 6 of his statement on oath, he deposed that the farmlands in dispute were entrusted to him by the late father of the plaintiff/1st respondent which he also loaned to his brothers for farming. It is averred in paragraph 9 that sometimes in 2011 when the defendants/appellants started laying claim to the farmlands in dispute the plaintiff/1st respondent reported the matter to the District Head of Bokkos who intervened and asked PW1 and the defendants/Appellants to return all the farmlands in dispute to the plaintiff/1st respondent which were returned to her but later the appellants trespassed and started laying claims on the farmlands. He finally deposed in paragraph 11 of his witness statement on oath that the farmlands in dispute neither belong to the defendants/appellants nor to any member of their family which he also belong. However PW1 was not cross-examined on this vital evidence.
Although under cross-examination he said he gave the lands to his brothers to farm but not on loan, which evidence

the appellants said is contradictory. It is not a material contradiction that affects the substance of the case. Since the facts remain that he gave part of the lands entrusted to him by the 1st respondent’s father to his brothers for farming with the consent of the 1st respondent, which fact was supported by the evidence of 1st respondent in paragraph 21 of her witness statement on oath.
PW2 in paragraph 6 of his witness statement on oath testified that his farmland shares boundary with the farmlands in dispute. Under cross-examination he said PW1 who was farming on the land on behalf of the plaintiff/1st respondent also gave part of the land to his brother late Solomon for farming. He said the appellants who are farming on the land refused to return the land to the plaintiff/1st respondent when she requested to be returned to her. Still under cross-examination he said it was the 1st respondent’s father that founded the land Kufai down to Kopiyal.
The plaintiff/1st respondent testified as PW3. Under cross-examination she confirmed that it was her father who entrusted the farmlands to PW1

Learned counsel for the appellants

canvassed heavily on the identity of the land. While it is the law that a party who claims declaration of title to land is required to establish clearly the area of land to which his claim relates. If the land cannot be properly ascertained, the plaintiff’s claim must fail. See Auta Vs. Ibe (2003)3 NWLR (Pt. 837) 247 at 265 and 266 and Oke Vs. Sotunde (2019)4 NWLR (Pt. 1661) 119.
I have examined paragraph 9(i)(ii)(iii) of the plaintiff/1st respondent’s amended statement of claim and paragraph 4 of the defendants/appellants joints statement of defence. Paragraph 9 of the plaintiff/1st respondent relates to the identity of the lands in dispute. While paragraph 4 of the defendants/appellants is a response to paragraph 9 of the plaintiff/1st respondent that her late father never owned the said lands she is claiming. The appellants having said that, they are aware of lands in dispute. It is clear to me that the identity of the lands was not put in issue by those averments of the parties. Parties are bound by their pleadings.

The evidence of DW1 the only witness of the appellants is at variance with the averments in their pleadings. It is settled

that evidence which is at variance with the averments goes to no issue and should be disregarded by the Court. See Okhuarobo Vs. Aigbe (2002)9 NWLR (Pt. 771) 29 and Onemu Vs. Comm. Agric & National Resources (2019)11 NWLR (Pt. 1682) 1 at 15.

In the instant case, the appellants pleaded that the lands in dispute do not belong to the plaintiff/1st respondent’s father. However this was not proved and established at the trial as against what the 1st respondent pleaded and proved. Rather the evidence of DW1 supports the case of the 1st respondent when he said under cross-examination that the land on which he and his brother are farming forms part of the lands in dispute. Where evidence adduced by the defence supports the case of the claimant, the claimant is perfectly entitled to rely on such evidence supporting his case. This is because the evidence operated as an admission against the interest of the appellants who brought him. See Nsirim Vs. Nsirim (2002)3 NWLR (Pt. 755) 697; Olosope Vs. NBN (1985) 3 NWLR (Pt. 11) 147 and Offodile Vs. Offodile (2019)16 NWLR (Pt. 1698) 189.

The appellants in paragraph 41 of their joint statement of defence

pleaded that the 1st respondent lacks the vires to own land under the Ron Native law and custom being a woman. The 1st respondent also referred to this assertion of the appellants in paragraph 30 of her Amended Statement of claim. However she pleaded in paragraph 20 of her Amended Statement of claim and paragraph 20 of her statement on Oath that her family the Lektu has no blood relationship with Maram (appellants’) family and therefore there cannot be a share of any inheritance between the two families.
Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that no citizen shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth, renders any rule of customary law which denies a person the right of ownership on the basis of being the descendant of a female child a nullity – Ordu Vs. Elewa (2018)17 NWLR (Pt. 1649) 515 at 522.
In the instant case, the appellants posit that the 1st respondent is not entitled to inherit the lands in dispute on the ground that she is a woman, the attempt to deny the 1st respondent her inheritance could not stand being a nullity

on the ground of repugnancy.

It is the submission of the appellants that the evidence placed before the trial Court was not properly evaluated and the decision is perverse.
The trial judge in his judgment at Pp. 229-230 had this to say:
“It is doubtful if the defendants can be said to have led credible evidence in proof of their root of title. The semblance of their version of their traditional history from the evidence of DW1 is that the defendants land had been their own from time immemorial which devolved to them from their ancestors in accordance with Ron native law and custom. That they have been in uninterrupted, unhindered and unbroken possession and have never relinquished title to the plaintiff, her father or any person. The name of the person who founded the land and how he founded it was not stated and neither the successive persons to which the land had devolved and how the defendants came to own the land.
It is a well known fact that civil cases are decided on the preponderance of evidence. The evidence of the plaintiff regarding the root of title to the lands in dispute appears to be more probable than that of the defendants.”

The trial Court’s findings cannot be faulted. The trial Court properly evaluated the evidence before it, to come to the right conclusion. The allegation that the judgment of the trial Court is perverse cannot stand. A perverse judgment is one persisted in error or when the trial Court takes into account matters that ought not to take into account or where it shut it eyes to the obvious. See Offodile Vs. Offodile (supra) and Atolagbe Vs. Shorun (1985) 1 NWLR (Pt. 2) 360.

It is pertinent to point out that throughout the proceedings none of the appellants testified in defence of the action against them. Their claim for long possession cannot defeat the title of the true owner of the land. See Pina Vs. Mai-Angwa (2018)15 NWLR (Pt. 1643) 431 at 436.

The 1st respondent in her evidence at the trial Court traced the root of her title to her great grandfather from whom her grandfather inherited and from whom her father inherited which she also inherited from her father. Thus the 1st respondent has successfully proved her title on the balance of probability.

The issue is resolved in favour of the 1st respondent and against

the appellants. The appeal is grossly lacking in merit and it is dismissed.
N100,00.00 costs is awarded in favour of the 1st respondent against the appellants.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I concur with the reasoning and conclusion reached in the lead judgment just delivered by my learned brother TANI YUSUF HASSAN, JCA, hence I also dismiss the appeal for lacking in merit.
I abide by the consequential orders made therein.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft form the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A. and I am in agreement with his reasoning and conclusion; accordingly, I also dismiss the appeal as same lacks merit in my opinion. I also abide the order as to costs as made in the lead judgment.

Appearances:

T. KOMAK, with him, MISS A. E. SHALLANGWA and O. J. ENEWOUWA For Appellant(s)

G. OYAFEMI – for the 1st Respondent
H. P. NATHAN – for the 2nd Respondent For Respondent(s)