MOHAMMED TOMU v. SHUAIBU MUAZU & ORS (2019)

MOHAMMED TOMU v. SHUAIBU MUAZU & ORS

(2019)LCN/13254(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 14th day of May, 2019

CA/A/327/2011

RATIO

LAND LAW: DECLARATION OF TITLE: 5 WAYS TO PROVE TITLE TO LAND

The law is trite that there are five ways for a plaintiff to prove his entitlement to land. Namely, proof by traditional evidence, proof by acts of ownership, proof by production of documents of title, proof of ownership by acts of long possession and proof of possession of connected or adjacent land. See IDUNDUN VS. OKUMAGBA (1976) 1 NWLR (PT. 200) 210; SUNDAY PIARO VS. CHIEF WOPNU TENALO & ANOR (1976) LPELR – SC. 332/1975; JOLASUN VS. BAMGBOYE (2010) LPELR – 1624 (SC).PER MOHAMMED BABA IDRIS, J.C.A.

LAND LAW: TRADITIONAL HISTORY IS AN ACCEPTABLE WAY OF PROVING TITLE TO LAND

See OYADARE VS. KEJI & ANOR (2005) LPELR – 2861 (SC) where the Apex Court per Akintan, JSC held that:
“It is settled law that evidence of traditional history is one of the accepted methods of establishing title to land.”PER MOHAMMED BABA IDRIS, J.C.A.

LAND LAW: CRITERIA FOR ESTABLISHING TRADITIONAL EVIDENCE
The same Apex Court set down the criteria for establishing traditional evidence in CHRISTIAN EWO & ORS VS. OGBODO ANI & ORS (2004) LPELR – 1182 (SC) where it held that:
“Traditional evidence is evidence beyond living memory. In this connection, a party who seeks title to land and relied on traditional history must, to succeed, plead and prove facts as to:
(a) who founded the land; (b) how the land was founded and (c) particulars of the ancestors through whom he claims.”PER MOHAMMED BABA IDRIS, J.C.A.

LAND LAW: DUTY OF A PERSON CLAIMING DECLARATION OF TITLE TO LAND

The law is trite that the first duty of a person claiming a declaration of title is to show the identity of the land (i.e the area of land to which his claim relates). The Apex Court in ATANDA VS. ILIASU (2013) 6 NWLR (PT. 1351) 529 per Ogunbiyi JSC, who delivered the lead judgment stated inter alia that:
“It is elementary to state therefore that the certainty of the identity of land in dispute is a sine qua non, a necessity… It is also trite that the mere mentioning of the area is not enough. The description and extent of the boundaries must be proved with exactitude… The test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate plan of such land… The burden of proving identity of land will rest on the claimant only where it forms part of the subject matter and has been put in issue”PER MOHAMMED BABA IDRIS, J.C.A.

LAND LAW: METHODS OF PROVING IDENTITY TO LAND

The methods of identifying land were laid out in SULEMAN & ORS VS. UKANA & ORS (2019) LPELR — 46827 (CA) where the Court held:
“The law is settled that the identity of land in dispute can be proved by; – (1) The plaintiff adducing such oral description of the land that a surveyor, acting on the strength of that description, can make a plan of the land; or (2) The plaintiff filing a plan showing the land with its boundaries.”PER MOHAMMED BABA IDRIS, J.C.A.

PLEADINGS: EFFECT OF A PARTY FAILING TO COUNTER A PLEADING

PLEADINGS: COURTS HAVE THE DUTY TO REVIEW PLEADINGS
However, it is still the duty of the Court to review the pleadings to ascertain whether judgment could be rightly entered in favour of the party whose pleading is said to have been admitted. Moreover, the position of law is that even when evidence is not disputed or unchallenged, it must be credible. See AKALONU V OMOKARO (2003) ALL FWLR (Pt. 175) 493 this reasoning was followed by the Supreme Court in GONZEE NIGERIA LTD VS. N.E.R.D.C (2005) ALL FWLR (PT. 274) 235 where it was held that even when evidence is unchallenged, the trial Court is still duty bound to analyse it and be satisfied that it is credible enough to sustain the case of the party adducing such evidence.
The Supreme Court in EMEKA VS. CHUBA-IKPEAZU &-ORS (2017) LPELR – 41920 (SC) established referencing the case of AGBI VS. OGBEH (2006) 11 NWLR (PT. 990) 65 that credible evidence is:
“Worthy of belief, … must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstances.”PER MOHAMMED BABA IDRIS, J.C.A.

JUSTICES

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria

Between

MOHAMMED TOMU Appellant(s)

AND

1. SHUAIBU MU’AZU
2. HARUNA MU’AZU
3. ABU MU’AZU Respondent(s)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal by Notice of Appeal dated 12/11/2008 and filed on the 10/02/2009 appealed against the decision/Judgement of the High Court of Niger State, Minna Judicial Division in Suit No. NSHC/MN116/2004 delivered on the 12th of day of November, 2008 by Honourable Justice Aisha A. L. Bwari wherein the trial Judge dismissed the Defendant/Counter-claimant (now Appellant) suit in favour of the Appellant (now Respondents).

The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellant and Respondents are farmers and reside at Karegboshaka and Ynagbomi respectively in Paiko Local Government Area of Niger State. The dispute is as to title over land allegedly situate at Ynagbomi village, along Ynagbomi-Karegboshaka Road. The Appellant was the defendant/counter-claimant at the trial Court where he counter-claimed for the declaration of title over the disputed land situate at Ynagbomi.

?The Appellant filed a statement of defence, final written address and called two

witnesses. The Respondent filed its statement of claim, called three witnesses and filed a final written address. Both parties placed reliance on traditional history to establish their respective titles. The Respondent maintained that the Appellant without lawful excuse trespassed upon the disputed land and claimed to be the owner. The Appellant on the other hand claimed that he made ridges and heaps on the disputes land, and planted seedlings after obtaining judgment against Saidu Bawa of Karegboshaka, the Respondent nephew. Both parties stated the boundaries of the disputed land. The Court also conducted a visit to the locus on the 20/05/05.

The Appellant being dissatisfied with the decision of the trial Court sought leave of the Court to Appeal to appeal against the decision. In this case only the Appellant filed and adopted its brief of arguments at the hearing of the appeal.

The Appellant from the only ground of appeal distilled one 1 (one) issue for the determination of the appeal captured below:
1. Whether from the evidence adduced by the respective parties at the trial Court, it is the Respondents and not the Appellant, who have proved a

better title to the disputed land.

Learned counsel for the Appellant argued that where the grounds of appeal complains that the judgment is against the weight of evidence, it postulates that there was no evidence which if accepted would support the findings of the trial Court or the inference which is made by the same trial Court. That it always has to do with evidence led and evaluation made thereof by the trial Court. He further argued that the in this case the question is whether the trial Court had properly evaluated the evidence adduced by the parties. In evaluating the evidence for the purpose of considering whether the testimonies offered by the Respondents is more probable than the evidence adduced by the Appellant, the Court must have regard to the following:
a. Admissibility of the evidence
b. Relevancy of the evidence
c. Credibility of the evidence
d. Conclusiveness of the evidence
e. Probability of the evidence, in the sense that it is more probable than the evidence of the other party and
f. Application of the law to the situation presented in the case before it so as to arrive at a conclusion in one way or the

other.

The Appellant also argued that its contention on the improper evaluation of evidence by the trial Court is hinged on:
a. The issue of the evidence of the respective parties relating to the founding of the disputed land
b. The issue of the location of the disputed land
c. The issue of the evidence of the description of the disputed land; and
d. The issue of admissibility of the evidence of the Respondent’s witnesses on the un-pleaded facts.

On the issue relating to the evidence of both parties relating to the founding of the disputed land, the Appellant argued that the law requires both parties to give evidence on the founder and the particulars of the intervening owners through whom they claim. That the trial Court reproduced the testimonies of PW1 on the issue at Page 98, lines 8 – 13; that of PW2 at Page 98 lines 14 – 22 and that of PW3 at Page 99 lines 3 – 8, after which the trial Courts findings based on these evidence at page 99 lines 13 – 23 was that the evidence offered by PW1, 2 and 3 were not challenged, hence the court can act on it.

The testimonies of DW1 and 2 on the issue was

also reproduced by the trial Court at Page 100 lines 3 ? 14, upon which the trial Court made the same findings as the case of the evidence of the plaintiff’s witnesses. That the trial Court at page 100 line 15 – 19 stated that the appellant had also proved the averments in the statement of defence. Furthermore, DW2 was never cross-examined on his evidence and hence, it was left unchallenged and un-contradicted. However, in spite of the balance findings by the Court, the Court held that the Respondent have proved their case against the appellant on a balance of probability which entitled them to the reliefs claimed.

In relation to the issue of the location of the disputed land the Appellant argued that both the Respondents and the Appellant are required to plead the location of the disputed land and to lead evidence on the same. That paragraph 4 of the Statement of Defence and the evidence of DW1 on the location of the disputed land is to the effect that: “The land is situate at Nyagombi along Kwarbwashaka road”, While the evidence of DW2 on the location of the disputed land was that:
“I came to tell the Court that the plaintiffs

trespassed into Mohammed Tomu’s land which is situate between Ynagobmi and Kwarbwashaka.”

That these pieces of evidence are not contradictory in any way as held by the trial Court in page 105 lines 14 – 17 which reads thus:
“The testimonies of the defence witnesses in proof of the averments in the statement of defence I have found very contradictory to start with. While the DW1 states that the land in dispute is located at Nyagobmi along Kwarbwashaka road, DW2 said it is located between Nyagobmi and Kwarbwashaka.”

The Appellant also argued that the Respondents on the other hand did not plead the location of the disputed land in their statement of claim. That PW1, 2 and 3 testified that the land is situate at Shaka but the evidence is based on un-pleaded facts and evidence led on un-pleaded facts is inadmissible. That the testimony of PW2 under cross examination at page 45 which is to the effect that there are other lands between the disputed farm land and Nyagobmi village and belong the Appellant (Gunduma Tomu) shows that the land falls within the territory of Nyagobmi village. That this was equally seen by the trial Court when it

conducted a locus visit to the disputed and on the 25/05/2005. Yet the trial Court held that the Respondent have proved their case against the Appellant on a balance of probability to entitle them to claim reliefs.

With regard to the issue of the evidence of description of the disputed land, the Appellant argued that the parties are also required to plead and lead evidence on the boundaries of the disputed land with certainty. That from the pleadings of the parties, they are contesting one and the same land. This is evidenced by paragraph 7 of the statement of defence, in fact the Appellant from his pleading seems to agree with the boundaries of the land descripted by the Respondent. That the only reservation is that, the disputed land did not extend to the Respondent settlement.

The Appellant further contended that the Court conducted a locus visit to the disputed land on the 20/05/2005, where the Court had a full opportunity of seeing the location and the boundaries of the disputed land. That during this visit, the Appellant who is the counter-claimant did not show the Court another land from what was shown by the Respondents. As such the

conclusion of the trial Court was not based on the situation presented at the locus visit.

The Appellant argued that if the above conclusion was correct, then the trial Court ought not to have given judgment in favour of either party since according to the learned trial judge, the Appellant and the Respondents did not describe the same land but two different lands located at two different sites. Yet according to the Appellant the trial Court gave judgement in favour of the Respondents without taking in the consideration the true position of the disputed land presented at the locus. The Appellant further contended that even though the Court observed that the description of the boundaries of the land given by DW1 and DW2 are contradictory, it is submitted that the contradiction relates to the description of the land to the south alone and not the actual location of the disputed land nor the boundaries to the East, West and North. That reading through the evidence of the description of the boundaries of the disputed land adduced by the Respondent’s witnesses, same contradiction can be found in the testimonies of PW1 and 3 and that of PW2 in relation to the

description of the disputed land to the South and West of the disputed land.

On the issue relating to the admissibility of the evidence of the Respondent’s witnesses which were based on un-pleaded facts, the Appellant argued that he pleaded in paragraph 9 of his statement of defence he averred that the plaintiff’s cousin (Saidu Bawa) once challenged the Appellant’s father at the upper Sharia Court, Paiko in suit NO. PUSC/CV/278/2002 which was decided in the appellant’s favour. That the Respondents did not file a reply to this averment in spite of the fact that it raises new issues. The Appellant maintained that consequent of Respondent’s action above they cannot lead evidence in denial of the said averment because, issues were not joined on same. That it shall be deemed that the averment in paragraph 9 is admitted.

The Appellant also argued regarding this issue that the Respondent’s counsel during cross-examination of DW1 elicited some facts relating to the appellant’s averment in paragraph 9 of the Statement of Defence. That the trial Court placed heavy reliance on the evidence elicited by the Respondent’s counsel on issues contained in paragraph 9

which formed the basis of the trial Court’s judgement. The Appellant asserted that the law is trite that for evidence elicited from cross-examination on un-pleaded facts to be admissible, the party seeking to use or rely on same must amend his pleadings to incorporate same. That the Respondent’s evidence to the effect that, Saidu Bawa has a different farm land from the land in dispute is inadmissible as same is not pleaded and there was no amendment made by the Respondent. The Appellant claimed that based on the reliance on the inadmissible evidence by the trial Court the judgment given was against the weight of evidence.

In concluding its brief of argument the Appellant contended that the trial Court also drew wrong inferences from the totality of evidence and applied wrong principles of law. That the Court wrongly drew an inference that the Respondents allegation in paragraphs 7 and 8 of the statement of claim was not denied by the Appellant and therefore amounted to admission. However, the Appellant maintained that paragraphs 2 and 5 of the statement of defence denied the Respondent’s allegation in paragraphs 7 and 8 of the statement of claim. That

both PW1 and DW2 did not give any shred of evidence to prove the averments in the said paragraphs 7 and 8 of the statement of claim. Only PW3 gave skeletal evidence which does not sufficiently prove the averment in paragraphs 7 and 8. Yet the trial Court relied on this wrong inference to award judgment in favour of the Respondents.

The Appellant urged the Court to re-evaluate the evidence of the trial Court with the view to considering the totality of the evidence on all issues of fact in the circumstances of this case and to place same on an imaginary scale to know where the balance tilts. The list of authorities relied on are:
1. UKAEGBU V NWOLOLO (2009) 3 NWLR (PT. 1127) 194
2. LAGGA V SARHUNA (2008) 16 NWLR (PT114) 427
3. OGOLO V MINIMAH (2003) 11 NWLR (PT 831) 231
4. OJO V KAMALU (2005) 18 NWLR (PT 958) 523
5. GARAU V PASHIRI (2006) 1 NWLR (PT 962) 521
6. BASIL V FAJERE (2001) FWLR (PT 51) 1914
7. ANYEGWU V ONUCHE (2009) 3 NWLR (PT 1129) 569
STATUTORY AUTHORITIES
1. EVIDENCE ACT, CAP E 14, LFN, 2004.
2. COURT OF APPEAL ACT, CAP C36 LFN 2004

ISSUE ONE
The Appellant formulated one issue

for determination and I shall adopt this issue for the determination of this appeal. The issue distilled by the Appellant again is:
Whether from the evidence adduced by the respective parties at the trial Court, it is the Respondents and not the Appellant, who have proved a better title to the disputed land.

The plaintiffs in the trial Court pleaded in paragraphs 4 – 12 of their statement of claim and relied on traditional history as their source of title. Similarly, the Defendant also pleaded in paragraphs 3 – 11 of his statement of defence and relied on traditional history to establish their respective titles. See OYADARE VS. KEJI & ANOR (2005) LPELR –

2861 (SC) where the Apex Court per Akintan, JSC held that:
“It is settled law that evidence of traditional history is one of the accepted methods of establishing title to land.”
The same Apex Court set down the criteria for establishing traditional evidence in CHRISTIAN EWO & ORS VS. OGBODO ANI & ORS (2004) LPELR – 1182 (SC) where it held that:
“Traditional evidence is evidence beyond living memory. In this connection, a party who seeks title to land and relied on traditional history must, to succeed, plead and prove facts as to:
(a) who founded the land; (b) how the land was founded and (c) particulars of the ancestors through whom he claims.”
In the instant case, the trial judge accepted the traditional evidence pleaded and relied on by both parties as the evidence lead by both parties was unchallenged and unshaken during cross-examination. The reason according to the trial judge is that “the law is well settled that where the evidence given by a party to any proceeding was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the case to act on such

unchallenged evidence before it.” On this point, I agree with the findings of the learned trial judge.

land before the Court is to prove the area over which the party lays claim as per his writ of summons with certainty.”
In his own contribution in the same case, Rhodes-Vivour JSC, opined that:
“The position of the law is that a party who claims declaration of title of land must show or satisfy the Court with certainty the area of land in respect of which the claim is made. Failure to satisfy the Court would result in the claim being dismissed. It is desirable but not mandatory that a survey plan is produced by the plaintiff in claims for declaration of title. What the Court requires is for the land to be precisely identified with the definitive certainty, and in discharging the requirement credible evidence can be led to identify the land in question.”
The Court of Appeal in line with the reasoning above in YUSUF VS. MAIKANANZIR (2013) LPELR 22617 (CA) held:
“It is an established principle of land litigation that any person claiming an interest in land must prove the exact location of the land and the precise are to which his claim relates. This is the foremost and a fundamental duty on a plaintiff in a land dispute… Even where the

identity and location of the land is not in dispute, the plaintiff must in his pleadings and evidence show an identifiable area of land to which his claim relates… Such proof of identity of land is a condition precedent sine qua non to the success of the plaintiffs claim.”
The methods of identifying land were laid out in SULEMAN & ORS VS. UKANA & ORS (2019) LPELR — 46827 (CA) where the Court held:
“The law is settled that the identity of land in dispute can be proved by; – (1) The plaintiff adducing such oral description of the land that a surveyor, acting on the strength of that description, can make a plan of the land; or (2) The plaintiff filing a plan showing the land with its boundaries.”
The Courts therefore use the litmus test/acid test which is to the effect that a surveyor taking the record of the proceeding can produce a plan showing accurately the land to which the declaration is sought. See CHIEF ARCHIBONG & ORS VS. CHIEF ITA & ORS (2004) ALL FWLR (PT. 197) – 930 and LASISI AREMU VS. ALHAJI LAWAL ADETORO (2007) LPELR ? 546 (SC).
The Appellant in this case argued in their brief of argument that the

Respondents/plaintiffs at the trial Court did not plead the location of the disputed land in the statement of claim. What constitutes the identity of land was explained in the recent Court of Appeal case of GOVERNOR OF LAGOS STATE & ORS VS. OHAIGO NIGERIA LIMITED & ANOR (2018) LPELR ? 45552 (CA) where it was held that:
“…the first duty on a claimant seeking a declaration of title to land is to establish with exactness the description, area, size and location of the land over which he seeks a declaration of title…”

The learned trial judge in this case at pages 100 ? 106 of the records of appeal thoroughly analysed the identity of the land proffered by both parties and their witnesses. The learned trial judge came to the conclusion that the parties are describing two different farm lands. That the Plaintiffs/Respondents described the land through un-contradictory testimonies of their witnesses and as such satisfactorily discharged the burden placed on them regarding the identity of the land. On the other hand, the trial judge held that the testimonies of DW1 and DW2 were contradictory as DW1 stated the land is in

Nyagobmi while DW2 said the land is between Nyagobmi and Karbwashaka. Also the trial judge found that the description given by the two defence witnesses contradicted one another. The trial Court therefore held that the Defendant/Appellant had failed to show clearly the area of land to which his claim relates.

Upon reviewing the records of appeal, I do not agree with the claim of the Appellant that the Respondents did not state the location of the land as the averments in paragraphs 4 and 5 of the Plaintiffs/Respondents statement of claim all state the location of the land. Moreover, the Plaintiffs/Respondents in their writ of summons stated that the land was situated at Karegbashaka. Moreover, in paragraphs 9 and 10 of the statement of claim they gave a description of the land and its boundaries which all add to the establishment of the identity of the land. I have therefore considered the pleadings of the parties coupled with the evidence adduced by the plaintiffs and it seems very clear to me and I so find that the location of the land was adequately given. The trial Court was therefore right to have admitted the evidence lead by the Plaintiff

witnesses as they were not based on un-pleaded facts.

Additionally, the Appellant argued that PW2 in his cross examination testified that there are other lands between the disputed farm land and Nyagobmi village and belongs to the appellant (Gunduma Tomu) which shows that the land falls within the territory of Nyagobmi village. I have read PW2’s testimony in totality and PW2 in his next statement after the one reproduced above clearly stated that the farmland is in Shaka land. This negates the contention of the Appellant that based on PW2’s statement above the farmland is in Nyagobmi Village.

Another issue identified by the Appellant relates to the boundaries of the disputed land. That from the pleadings the parties are contesting the same land, as the Appellant from his pleading seems to agree with the boundaries to the East, West and North as stated by the Respondents but only disputes that to the South. Moreover, that the Court conducted a locus visit on the 20th May, 2005 where the Appellant who was the counter claimant did not show the Court a different land from what the Respondents showed. Also that the contradictory testimony given by DW1 and

DW2 only relates to description of the land to the south alone. Furthermore, the Appellant argued that from reading through the evidence the same contradiction can be found in relation to the testimonies of the PW1, 2 and 3.

The Appellant in the trial Court was a counter-claimant as such he also has a duty to prove with certainty the identity of the land. This reasoning was held by the Court of Appeal in TUNDE ODUGBOSE VS. FRANCIS ADE AINA (2014) LPELR 23145 (CA) per Tsammani JCA, who stated thus:
“It is now settled law that, the first duty of a Plaintiff or a Counter Claimant in a claim for declaration of title to land, is to prove with certainty, the identity of the land to which his claim relates. The declaration can therefore only be granted if the extent and/or boundaries of the land claimed are ascertained.”
The question that comes to mind is did the Appellant prove the title to land as it relates to the identity of the land? The trial Court answered this question in the negative by virtue of the evidence given by the defence witness as to the location of the land already discussed above and the boundaries of the land. The boundaries where

given by the defence witnesses. DW1 testified that “the land is bounded on the east by our house at Nyagobmi, on the south by Alh Bello ‘s Shugaba and Bello’s farms, on the west a stream and fadama and on the north by Yunusa’s farmland’ while DW2 testified that “the land is bounded in the East by a road from Nyagobmi to Shaka, on the North by Yunusa’s Pada’s land, on the West with Saidu Bawa’s land and on the South by a hill.”
Going from the description of the boundaries given by the defence witnesses, the trial Court was right in its conclusion that the Appellant did prove the title to land on a balance of probability or preponderance of evidence.
The Appellant can also not depend on the supposed contradictions found in the testimonies of the plaintiffs witnesses as he must succeed on the strength of his case. The law is trite that a claimant must succeed on the strength of its own case as established in a plethora of cases including AWOSUNLE & ANOR VS. FAGBEMI & ANOR (2011) LPELR 8912 (CA) where the Court held:
“… it is equally trite that in a claim for declaration of title to land a claimant must succeed on the strength of his own

case and not on the weakness of the defence unless there is an aspect of the defendant’s case that supports the claimant’s case.”
Moreover, the law as stated in TUNDE ODUGBOSE VS. FRANCIS ADE AINA (supra) is that:
“the Court will weigh the evidence so adduced by both parties in an imaginary scale, so as to see on which side the totality of evidence produced at the trial has tilted the scale. The side that outweighs the other, no matter how slight will carry the day, and therefore judgment will be given for that side. In summary, in civil cases, judgment will be given in favour of the party that tilts the scale on its side. That is why it is said that in civil cases, the standard of proof is upon preponderance of evidence or balance of probabilities.”

As it related to the locus in quo visit conducted by the court, the law is settled, per Iguh, JSC in JAMES OGUNDELE V. DARE JULIUS FASU (1999) LPELR ? 2329 (SC) that:
“…a trial Court must arrive at its judgment not on the impression from its visit to the locus in quo but upon its impressions from the totality of the legal evidence adduced before the Court.”
The same Supreme Court in

MALCOLM OLUMOLU VS. ISLAMIC TRUST OF NIGERIA (1996) LPELR ? 2626 (SC) held:
“…the point must be emphasized that a trial Judge should under no circumstance put his personal observations at a locus in quo in place of the evidence before the Court. The main purpose of a view or a visit to the locus in quo is to assist the Court to understand fully the questions in issue in a case, to appreciate and follow the evidence before it and properly to apply such evidence in arriving at its decision?.?
I have carefully reviewed the judgment of the trial Court as a whole and it does not disclose that it received any evidence at the locus. The judgment also did not reveal that she introduced any evidence of her own other than that given by the witnesses. InOLUBODE VS. SALAMI (1985) 2 NWLR (PT. 7) 282 the Supreme Court held that the trial judge may not substitute the results of his own observation for sworn testimony of the witnesses. The trial judge in this case was therefore right to come to the conclusion that the Appellant had not proven title to the land even after the visit to the locus.

?In relation to the last issue which

relates to admissibility of the evidence. The Appellant argued that the Respondents never filed a reply to paragraph 9 of his Statement of Defence, as such the Respondents cannot lead evidence in denial of the said averment because issues were not joined on it. That the Respondents counsel during cross-examination of DW1 elicited some facts relating to the Appellant’s averments in the same paragraph 9 which the trial Court placed reliance on.

The law is indeed trite that failure of a party to counter a pleading amount to it being deemed admitted. See EKWEALOR VS. OBASI (1990) 6 NWLR (PT. 131); ADELAJA & ORS VS. ALADE & ANOR. (1999) LPELR 109 (SC); CENTRAL BANK OF NIGERIA VS. INTERSTELLA COMMUNICATIONS LIMITED & ORS (2017) LPELR – 43940 (SC).
However, it is still the duty of the Court to review the pleadings to ascertain whether judgment could be rightly entered in favour of the party whose pleading is said to have been admitted. Moreover, the position of law is that even when evidence is not disputed or unchallenged, it must be credible. See AKALONU V OMOKARO (2003) ALL FWLR (Pt. 175) 493 this reasoning was followed by the Supreme

Court in GONZEE NIGERIA LTD VS. N.E.R.D.C (2005) ALL FWLR (PT. 274) 235 where it was held that even when evidence is unchallenged, the trial Court is still duty bound to analyse it and be satisfied that it is credible enough to sustain the case of the party adducing such evidence.
The Supreme Court in EMEKA VS. CHUBA-IKPEAZU &-ORS (2017) LPELR – 41920 (SC) established referencing the case of AGBI VS. OGBEH (2006) 11 NWLR (PT. 990) 65 that credible evidence is:
“Worthy of belief, … must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstances.”

Now the question to answer is whether the Appellant lead credible evidence as to paragraph 9 of his statement of defence? I answer this question in the negative this is because in paragraph 9 the defendant pleaded the existence of a Judgment which should be proved by production of that Judgment. The general rule is that documents are to be proved by primary evidence by virtue of Section 88 of the Evidence Act 2011 with certain exceptions. Section 25 of the Evidence Act also states:
“Oral admissions as to the contents of a

document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Part V or unless the genuineness of a document produced is in question,”
While Section 128 (1) of the Evidence Act states:
“When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
?I draw from these sections to demonstrate that the evidence given by the Appellant as it relates to paragraph 9 was not credible enough as the said judgment given by the Upper Area Court in Paiko was only mentioned through oral evidence even by both his witnesses, no documentary evidence was adduced.<br< p=””

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Additionally, in BAMGBOYE VS. OLANREWAJU (1991) 4 NWLR (PT. 184) 145 the Court held that a party is at liberty to cross-examine his opponent or a witness on a point the party cross-examining has not pleaded. This decision was followed by the Supreme Court inGAJI VS. PAYE (2003) ALL FWLR (PT. 163) 1 SC. The law is now established that a party leading evidence in rebuttal of a fact pleaded by his opponent is admissible despite the fact that such party did not plead it. In other words, evidence elicited under cross examination on the pleadings of either party is proper evidence before the Court to be acted upon if in support of the case of the cross examining party. See EMEGOKWUE VS. OKADIGBO (1973) 4 SC 113. This rebuts the contention of the Appellant regarding the evidence elicited from him through cross examination which was rightly used by the trial judge in pages 107-109 to reach the conclusion that the Appellant had not proved that it was the same farmland as Saidu Bawa’s given in favour to the Appellant in the Judgement of the Upper Area Court Paiko.
?
Finally, the Appellant argued that the trial judge drew a wrong inference from the evidence when it

held that the Appellant did not deny allegations of the Respondents as to trespass in paragraphs 7 and 8 of the statement of claim, as the Appellant denied the claim in paragraphs 2 and 5 of his statement of defence. Additionally, that he, the Appellant lead evidence through DW1 to the effect that he had not trespassed on the land which the Respondents only did through skeletal evidence of PW3.

I agree with the Appellant that he did deny the allegations in paragraphs 2 and 5 of his statement of defence and also lead evidence to the fact that he only came to the land after he had gotten judgement from the Upper Area Court of Paiko. However, this brings us back to the issue of credible evidence, the Court had already found that the land the Appellant had judgment for was different from the land in the instant case. This means that the Appellant’s evidence which is to the effect that he entered the land and started farming yams and beans after Judgement was given in favour of his father does not stand. As it relates to the testimony of PW3 regarding the Appellant’s trespass, the Supreme Court in USIOBAIFO & ANOR VS. USIOBAIFO & ANOR. ?

(2005) LPELR – 3428 (SC) per Tobi, JSC has held:
“In the evidential scene in the con of probative value, it is not the number of witnesses that matter but the qualify of the evidence given. And so, a situation may arise where a single witness gives credible evidence while a number of witnesses may not because they are a bundle of contradictions. Therefore, emphasis should be on the quality of evidence given rather than the quantity.”

Rightly so I have also come to the conclusion that the Appellant indeed trespassed on the land as the trial judge did though by different means.

For the reasons above I hereby dismiss this Appeal. Parties shall bear their respective costs.

PETER OLABISI IGE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA, I agree with the reasoning, conclusions and orders therein.

Appearances:

M. E. Agwulonu, Esq.For Appellant(s)

For Respondent(s)

Appearances

M. E. Agwulonu, Esq.For Appellant

AND

For Respondent