NEHEMIAH DILALI & ORS v. BUBA LEKA & ORS
(2018)LCN/12356(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of February, 2018
CA/YL/33/2017
RATIO
ACTION: DECLARATORY RELIEF
“Parties are agreed on the burden cast on a party seeking for a declaratory relief. In an action for a declaratory relief the plaintiffs must establish their claim on the strength of their case. They cannot rely on the weakness of the defence if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the Court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their evidence.” PER JAMES SHEHU ABIRIYI, J.C.A.
ACTION: WHEN A COUNTER-CLAIM IS MADE
“A counterclaim is a claim by a defendant against a plaintiff in the same proceedings. It is regarded as an independent and separate action in which the defendant/counter-claimant is in opposition of the plaintiff and therefore has the burden of proving the counter-claim to be entitled to judgment thereon. See Maobison Inter-Link Associated Ltd. vs. U.T.C Nigeria Plc (2013) LPELR 20335 p. 13 per Ariwoola JSC. The relief sought by the Appellants as contained in the counter-claim is declaratory. The law is loud and clear that they can only succeed on the strength of their own case. They are not permitted to rely on the weakness of the Respondents case. However, they can take advantage of the Respondents evidence which supports their case. See Matanmi vs. Dada (supra), Oguanuhu vs. Chiegboka (supra) and Kazeem & Anor vs. Mosaku & Ors (2007) LPELR 1684 SC.” PER JAMES SHEHU ABIRIYI, J.C.A.
EVIDENCE: WAYS OF PROVING TITLE TO LAND
“The Courts have over the years consistently held that proof of title to land can be established by any of the following ways: (1) By traditional evidence. (2) By production of document of title. (3) By proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the interference that the persons exercising such acts are the true owners of the land. (4) By acts of long possession and enjoyment of the land. (5) By proof of possession of adjacent land in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute. It is sufficient if one of the five ways is proved to the satisfaction of the Court. See Matanmi vs. Dada (2013) 2 SCNJ 616 at 627 and 629 – 630.” PER JAMES SHEHU ABIRIYI, J.C.A.
EVIDENCE: WAYS TO PROVE CUSTOMARY TITLE TO LAND
“The accepted methods of proving customary ownership of land are: (1) By traditional history of ownership; (2) Where the evidence in (1) is found to be inconclusive then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and (3) Where (2) above fails, proof of exclusive possession without permission. See Onwuka & Ors vs. Ediala & Anor (1989) LPELR 2720 page 27 – 28 per Wali JSC.” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. NEHEMIAH DILALI
2. MAKARANTA MADAKI
3. ALI DAN MAIGONA
4. EWAN MUSA
5. LUKA ILU Appellant(s)
AND
1. BUBA LEKA
2. DAVID LAMOSORO
3. ALHAJI BUBA Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment delivered 19th May, 2016 in the High Court of Gombe State holden at Gombe.
The Respondents as plaintiffs took out a writ of summons against the Appellants as defendants claiming for the following:
(a) A declaration that the plaintiffs are vested with title over that piece of land situate at Bakka as covered by the site plan dated 9/8/2012.
(b) A declaration that the acts of the defendants amounts to trespass upon the plaintiffs’ piece of land.
(c) A perpetual injunction restraining the defendants in person or their agents, servants, privies, or heirs from tampering with the peaceful occupation of the plaintiffs’ piece of land.
(d) The sum of N2m as general damages for trespass.
(e) Cost of this action and incidental expenses.
In an amended statement of defence and counterclaim, the Appellants counterclaimed for the following:
(a) A declaration of title to all that (sic) farmlands lying and situate at Lakwidukka in Tangaing District of Billiri LGA cleared by Maidaki Lauyerji, Angulu and Kwamba Sufiya. Maidaki Lauyerji from whom the 2nd, 3rd and 5th defendants inherited.
(b) Perpetual injunction restraining the plaintiffs by themselves, their servants, privies, agents and relation (sic) howsoever called from tempering (sic) withthe farmlands of the defendants.
(c) N5, 000,000.00 as damages for trespass.
(d) The cost of this action and incidental expenses.
The case of the Respondents is that they inherited the farmland in dispute from their grandfather Leka who cleared it and have been farming therein undisturbed. The land is bounded to the East by PW1’s farmland to the South East by PW4’s farmland to the West by PW2’s farmland to the North by PW3’s farmland and to the South is a stream. The Respondents have been farming on the land dating back to eighty years ago.
They were approached at a time by the village head of Tanglang Abubakar Gaude to allow Fulani cattle rearers access to the land to rear cattle. They did. After a while the Fulani started claiming ownership of the land.
However, the Local Government Committee on resolution of conflicts between farmers and herdsmen as shown by Exhibit 2 affirmed that the land belongs to the Respondents.
Later the Respondents resolved to obtain a local government certificate of occupancy over the disputed land. To this end, a local government surveyor surveyed the farmland and issued the Respondents with a sketch plan; Exhibit 1.
The Respondents continued to be in quiet possession of the farmland until 2013 when the 5th Appellant and his brother Barrister Yaglori Yunana took them before the District Head of Tangland. After hearing witnesses, the 5th Appellant and his brother realized that the case before the District Head was going to be against them. They suddenly withdrew the matter before the District Head.
That it was after this, that Ilu Luka and the brother instigated the Appellants to lay claim to the farmland. The Appellants then trespassed into the land. The Respondents sued the Appellants for Criminal Trespass before the Area Court. When the Area Court transferred the matter to the civil cause list, the Respondents withdrew the matter to the High Court.
On their part, the Appellants referred to the farmland in dispute as farmlands cleared by three hunters.
Maidaki Lauyeriji cleared the land to the North East, AnguluYa’ anang cleared the farmland to the North West and Kwamba Sutiya cleared the one to the West.
That after the demise of the three hunters, three of the Appellants inherited the farmlands. The 2nd Appellant inherited the farmland of his late father Maidaki Lauyeriji. The 3rd Appellant inherited the farmland of his late uncle Kwamba Sutiya and the 5th Appellant inherited his farmland from his uncle Angulu Ya? anang.
Since they inherited the various farmlands, they have been cultivating their farmlands and have maintained their various boundaries as they existed with their parents.
They were the ones cultivating the farmlands until they were taken as a grazing reserve.
A few years ago, the farmlands were removed from the grazing reserve but before they knew it the Respondents had entered the farmlands without their consent and knowledge.
After hearing evidence and considering addresses of learned counsel for both parties, the Court below entered judgment in favour of the Respondents and dismissed the counterclaim of the Appellants.
The Appellants therefore approached this Court by a notice of appeal dated and filed on 18th August, 2016 seeking for an order setting aside the decision of the Court below granting title to the Respondents. They also seek for an order granting the Appellants’ counterclaim.
The Notice of Appeal contains six grounds of appeal from which the Appellants presented the following four issues for determination:
1. Whether Exhibit 1 relied on by the trial High Court was not inadmissible in law (distilled from Ground 1 of the ground (sic) of appeal).
2. Whether the Respondent’s (sic) pleadings and evidence was not contradictory in material particular and affected the case of the Respondents (distilled from ground (sic) 3, and 4 of the ground (sic) of appeal.)
3. Whether the Respondents have discharged the burden of proof on the balance of probability as held by the Court (distilled from ground (sic) 2 and 6 of the ground (sic) of appeal).
4. Whether the Appellant did not proof (sic) their counter-claim (distilled from ground 5 of the ground (sic) of appeal).
The Respondents also presented four issues for determination. They are reproduced immediately hereunder:
A. Whether Exhibit 1 was properly admitted and relied upon by the lower Court-Distilled from Ground 1.
B. Whether the respondents discharged the burden placed upon them to sustain the judgment in their favour-Ground (sic) 3, 4, & 6.
C. Whether the respondents discharged the burden of proving the size and dimension of the land claimed Distilled from Ground 2.
D. Whether the Appellants proved their counter-claim Distilled from Ground 5.
On issue 1, learned counsel for the Appellants pointed out that Exhibit 1 tendered through PW5 was admitted without objection from the Appellants. Exhibit 1, it was submitted, was not tendered by a qualified surveyor as envisaged by law.
It was submitted that Exhibit 1 was tendered through PW5 who is an illiterate in English language. Secondly that Exhibit 1 bears the name of PW5 alone whereas there are three Respondents. Thirdly that Exhibit 1 was not read in Court and was not taken as read but the Judge read it in the confines of his chambers. That it was not the duty of the Judge to examine Exhibit 1 and connect it to the points where the Respondents failed to link it to specific areas claimed. The duty of the Court, it was submitted, is to adjudicate and not to investigate. We were referred to Goyol vs. INEC (2011) LPELR ? 9235 (CA), ACN vs. Lamido (2012) 8 NWLR (Pt. 1303) 560 at 592, Terab vs. Lawan (1992) 3 NWLR (Pt. 231) 569 at 590 and Baban Lungu vs. Zarewa (2013) LPELR 20726 (CA).
It was contended that the Respondents failed to show clearly the area of land to which their claim relates.
It was further contended that Exhibit 1 was made in anticipation of the proceedings. The Court was referred to relief (a) sought by the Respondents.
It was submitted that evidence of PW5 under cross – examination contradicts the date on Exhibit 1.
It was submitted that the Court below relied on Exhibit 1 to make the declaration when the exhibit was inadmissible. Reliance was placed on Shittu & Ors vs. Fashawe (2005) 14 NWLR (Pt. 946) 671 and Ugwu & Anor vs. Senator Ararume & Anor (2007) 12 NWLR (Pt. 1048) 365.
Issues 2 and 3 were argued together.
It was submitted by learned counsel for the Appellants that a plaintiff can only succeed on the strength of his case and not on the weakness of the defendant’s case. It is also the law that the plaintiff must prove his case on the preponderance of evidence or balance of probabilities, it was submitted. We were referred to Odunze vs. Nwosu (2007) 31 NSCQR 11 at 58 and Ajibulu vs. Ajayi (2013) LPELR 21860 SC p. 24.
It was submitted that the pleadings of the Respondents is not coherent and that parties are to define accurately the issues upon which the case is to be contested. We were referred to Abubakar & Anor vs. Joseph & Anor (2008) LPELR 48 (SC) pp. 53 – 54.
Learned counsel for the Appellants claimed that PW1 relied on what he was told. That PW2 is not a witness of truth. That evidence of PW4 was self – contradictory and unreliable.
It was submitted that evidence of Respondents witnesses were contradictory and that the contradictions were material.
The Respondents therefore failed to prove their case on the preponderance of evidence or balance of probabilities as required by law; it was submitted.
On issue 4, learned counsel for the Appellants submitted that a counter-claimant has the onus to prove his counter-claim on the strength of his case. Reliance was placed on Afolayan vs. Ariyo & Anor (2014) LPELR 22775 (CA) pp. 39 – 40 and Olokode & Ors vs. Ijaola & Ors (2005) LPELR 11428 (CA) p. 33.
The Appellants, it was submitted, gave evidence which was credible.
Evidence of Appellants witnesses was highlighted one after the other and it was submitted that none of the witnesses for the Appellants was discredited.
It was submitted that the fact that DW1, DW2 and DW3 said that they saw the Respondents on the disputed farmland for the first time did not discredit their evidence.
Learned counsel for the Respondents submitted that Exhibit 1 was pleaded, relevant, admissible and emanated from proper custody and was admitted within the law.
It was submitted that the sketch map was made on 9th August, 2012 consequent upon the resolution of a dispute in 2005 which was not against the present Appellants and so it has no nexus with the Appellants.
Exhibit 1, it was submitted, bears the name of 2nd and 3rd Respondents, the 1st Respondent being father of the 3rd Respondent and 1st Respondent is a direct heir to Leka.
It was submitted that the Court below rightly held that Exhibit 1 was useful in the just determination of the suit.
It was submitted that Exhibit 1 was properly tendered and it proved the identity of the disputed land.
Learned counsel for the Respondents submitted that Respondents adequately discharged the burden of proving their assertions. Respondents, it was submitted, pleaded their root of title and long possession.
Learned counsel for the Respondents submitted that the Respondents had established without contradictions the following:
(a) That Leka cleared the land which the Respondents inherited.
(b) That the Respondents are in very long farming possession of the farmland.
(c) That the land is properly measured and identified.
(d) That all the cardinal points boundary neighbours testified in favour of the Respondents
(e) That the Appellants have never farmed on the farmland.
(f) That Billiri Local Government Council Committee on prevention of disputes between farmers and herdsmen Billiri LGC and District Head of Tanglang in Council affirmed this land to be Respondents’ farmland.
It was submitted that a party claiming title to land is not bound to prove more than one root of title to succeed. It is enough if he can prove only one of the recognised ways of establishing title to land. It was submitted that the Respondents led credible traditional evidence which established their root of title and long possession over a sufficient length of time. We were referred to Idundun vs. Okumagba (1976) 9 – 10 SC 227 and Egbo vs. Agbara (1997) 1 NWLR (Pt. 481) 293 at 318.
On whether the Appellants proved their counterclaim, learned counsel for the Respondents argued that the counterclaim was by the 2nd, 3rd and 5th Appellants.
It was submitted that by their pleadings the Appellants had the onus of establishing the following:
(a) Their root of title.
(b) The identity of the lands that belonged to each of the three Appellants they acknowledged as the owners and
(c) How the Respondents seem to be in possession of land they purport to be theirs.
It was submitted that the testimonies of witnesses called by the Appellants in support of their pleadings were self contradictory.
Learned counsel for the Respondents argued that the DW1 stated that it is the Respondents that are on the land farming but that he did not know how they got on the land. That DW4 also conceded that the Respondents have been farming on the land for over ten years. That DW6 too said under cross – examination that before 2005 Buba’s children were farming on the land but he did not know how they acquired it and that to date they were the ones farming on the farmland. That DW11 affirmed that after hearing from Mallam Antiya Mai and Iliya Bello the Committee in Exhibit 2 affirmed that the farmland belonged to the Respondents. Since then the Appellants did nothing.
It was contended that from the testimonies of the Respondents, it is clear that the following facts have emerged:
(A) That the Respondents have been in physical possession of the farmland.
(B) That none of the Appellants has ever farmed on the land in dispute.
(C) That none of the Appellants has a clear history of when and how the farmland was founded.
(D) That no single boundary neighbour testified in favour of the Appellants.
(E) That the Respondents have been in long possession. That the Appellants realised that they would not succeed before the District Head of Tangland so they withdrew their case before him.
(F) That the testimonies of the Appellants? witnesses were full of contradictions.
It was submitted that the traditional evidence of the respondents was more credible. That the Appellants did not sustain their root of title. That it was incumbent on the Appellants to establish the reason for their absence from the farmland for more than fifty years even though they sought to deny the presence of the Respondents.
It was submitted that whereas the respondents proved by both oral and documentary evidence the identity of their land the Appellants who also had a counterclaim failed to do so.
Where a counsel stands by and allows exhibits to be tendered without any objection, he cannot be heard to later complain about the admission of those documents in evidence. The documents so admitted become legally admissible evidence which the Court can rely on. In civil cases for a document to be admissible in civil proceedings, it must not only be pleaded by a plaintiff so as to make the defendant know what to meet at the trial, it must also be relevant. The two requirements must be complied with conjunctively. See Adeleke vs. The State (2013) 7 S.C.N.J 745 at 761 and Adeyefa vs. Bamgboye (2013) 2 SCNJ 198 at 210. Exhibit 1 was pleaded in paragraph 11 of the Statement of Claim. It is relevant to the settlement of the dispute between the parties.
The learned counsel for the Appellants has boasted that the said Exhibit was admitted without objection. He cannot therefore be heard on appeal to say that the Court below ought not have relied on the said Exhibit 1. That is too late in the day. Counsel should react one way or the other when documents or other exhibits are sought to be tendered by the opposing party and not wait until after the documents have been admitted in evidence. Where they fail to raise objection at the appropriate time they cannot on appeal complain that the trial Court wrongly admitted and/or relied on such exhibits.
Learned counsel for the Appellants claimed that Exhibit 1 bears the name of Alhaji Buba alone. That is far from the truth. It bears the names of 2nd and 3rd Respondents.
Learned counsel for the Appellants further claimed that Exhibit 1 was made in anticipation of the proceedings in Court.
There is no basis for that claim.
Learned counsel for the Appellants further complained that Exhibit 1 was not read in open Court even though he noted that the document was not tendered through the maker and the witness (PW5) through whom it was tendered was not literate.
Learned counsel for the Appellants nevertheless cross – examined PW5 on the said Exhibit 1. Having cross – examined on Exhibit 1, learned counsel for the Appellants cannot turn round to allege that the Court below read the said Exhibit 1 in the recess of its chambers. The Court below did not therefore err when it considered the said Exhibit 1 while appraising the evidence led by both parties.
For the foregoing reasons, issue 1 should be resolved in favour of the Respondents and against the Appellants.
It is hereby resolved against the Appellants.
The claim of the respondents as contained in the statement of claim reproduced earlier in the judgment is for declaration of title to the disputed land among other reliefs. Parties are agreed on the burden cast on a party seeking for a declaratory relief. In an action for a declaratory relief the plaintiffs must establish their claim on the strength of their case. They cannot rely on the weakness of the defence if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the Court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their evidence.
The Courts have over the years consistently held that proof of title to land can be established by any of the following ways:
(1) By traditional evidence.
(2) By production of document of title.
(3) By proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the interference that the persons exercising such acts are the true owners of the land.
(4) By acts of long possession and enjoyment of the land.
(5) By proof of possession of adjacent land in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute. It is sufficient if one of the five ways is proved to the satisfaction of the Court. See Matanmi vs. Dada (2013) 2 SCNJ 616 at 627 and 629 ? 630.
Although the onus is on the plaintiff to prove his case, there is nothing wrong for a plaintiff to take advantage of evidence adduced by the defence which tends to establish the plaintiff?s title. See Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 at 707.
The accepted methods of proving customary ownership of land are:
(1) By traditional history of ownership;
(2) Where the evidence in (1) is found to be inconclusive then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and
(3) Where (2) above fails, proof of exclusive possession without permission. See Onwuka & Ors vs. Ediala & Anor (1989) LPELR 2720 page 27 – 28 per Wali JSC.
The Respondents led evidence through PW5 (3rd Respondent) to the effect that the farmland was founded by Leka and they were in possession. At a point in time some Fulani herdsmen came and requested for a portion of the land. The Fulani herdsmen were obliged. Later the Fulani herdsmen laid claim to the land. This resulted into a conflict betweew the respondents and the Fulani herdsmen. The conflict was resolved by a committee called Farmers and Herdsmen Prevention and Settlement of Disputes Committee. See Exhibit 2 tendered by the Respondents. The committee returned the land to the rightful owners, the Lamasoro family headed by Alhaji Buba and David Lamosoro.
Exhibit 3 also tendered by the Respondents through PW5 is a record of proceedings before the District Head of Tanglang. According to the PW5, the 5th Appellant and his brother Barrister Yaglori Yunana went to the District Head claiming the farmland but that they withdrew the matter from the District Head when they realised that the evidence was not favourable to their case. I have gone through Exhibit 3 and I cannot fault the PW5 for saying that the proceedings before the District Head were terminated by the 5th Appellant and his brother because the witnesses called by them did not help their case. Adamu Katako for example said he had not seen 5th Appellant farm cotton on the land. Shidda Sabo said he could not remember if he had once taken 5th Appellant to the farm. He did not know if he had.
He also said he would not be able to show Angulu’s farm. Micheal Yuguda said he was not told that he shared boundary with Angulu. On this evidence the 5th Appellant and his brother could not sustain their claim before the District Head. So they withdrew the matter before the District head.
It is therefore clear that Exhibits 2 and 3 tendered by the Respondents support their claim to the land.
The PW5 testified that Respondents have not only been in possession of land they also have a farm house on the farmland. PW2 confirmed that there was a farm house on the land. DW10 admitted that the Respondents had been farming on the land. See page 100 of the record of appeal. DW6 also, under cross ? examination stated thus:
“Before the year 2005, I saw Buba’s children farming the land but I do not know how they acquired it. Up till today it is Buba’s children that are farming on the land.”
See page 91 of the record of appeal. DW1 under cross – examination also said that some of the Respondents are still farming on the farmland in dispute. The DW11 under cross – examination said that the committee after listening to all the people affirmed the land to be Respondents’ land. See page 129 of the record.
It is clear from the foregoing that evidence elicited under cross – examination of Appellants’ witnesses supports the claim of the Respondents to the farmland.
The Court below stated in its judgment that the Respondents called three boundary neighbours. That is one short of the number called. PW1 Adamu Katako said that his farmland shared boundary with the Respondents farmland to East. PW2 Liman Goni said that his farmland shared boundary with the Respondents’ farmland to the West. PW3 Modi Goni said that his farmland shared boundary with the Respondents’ farmland to the North. PW4 Micheal Yuguda who said that his farmland shares boundary with the Respondents’ farmland to the South also stated that he was surprised that the Appellants were surfacing to claim the farmland. As rightly pointed out by the Court below, PW1 – PW4 did not only state that their farmlands shared common boundary with the farmland in dispute, they maintained that the farmland in dispute belongs to the Respondents.
On the evidence highlighted above, it will be idle to suggest that the Respondents did not establish title to the farmland in dispute.
Learned counsel for the Appellants contended that the failure of the Respondents to call Buba Leka, David Lamosoro, Barka Lamosoro and Opel Buba to testify amounted to withholding evidence contrary to Section 167 (d) of the Evidence Act 2011. Section 167 (d) of the Evidence Act says that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. With respect to learned counsel for the Appellants, Section 167 (d) of the Evidence Act does not deal with failure to call witnesses. If the Respondents felt that they could prove their claim without calling the people learned counsel for the Appellants says were not called, it is not the business of the Appellants. The Court does not sit to conduct a sort of census of witnesses called by parties. It looks at the quality of evidence led. A single witness may give credible evidence against a host of witnesses called on the other side of the matter. Therefore the emphasis should be on the quality of witnesses or evidence led rather than on the quantity or number of witnesses called by a party. See Usiobaifo & Anor vs. Usiobaifo & Anor (2005) LPELR 3428 SC p. 14 per Tobi JSC. It was entirely within the province of the Respondents to call the witnesses that would prove their case. Failure to call a host of witnesses by itself as campaigned by the Appellants? counsel cannot defeat the Respondents? claim.
Learned counsel for the Appellants sought to pick holes in some dates in the evidence of the witnesses called by the Respondents. This he submitted amounted to contradictions. Where there are material contradictions in evidence adduced by a party, the Court will reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow. The entire evidence in the circumstances must be rejected. See Kayili vs. Yilbuk & Ors (2015) LPELR 24323 page 68 per Ogunbiyi JSC. Minor discrepancies if any as to dates in my view were immaterial. They therefore had no effect on the quality of evidence led by the Respondents.
Issues 2 and 3 are also resolved against the Appellants and in favour of the Respondents.
A counterclaim is a claim by a defendant against a plaintiff in the same proceedings. It is regarded as an independent and separate action in which the defendant/counter-claimant is in opposition of the plaintiff and therefore has the burden of proving the counter-claim to be entitled to judgment thereon. See Maobison Inter-Link Associated Ltd. vs. U.T.C Nigeria Plc (2013) LPELR 20335 p. 13 per Ariwoola JSC.
The relief sought by the Appellants as contained in the counter-claim is declaratory. The law is loud and clear that they can only succeed on the strength of their own case. They are not permitted to rely on the weakness of the Respondents case. However, they can take advantage of the Respondents evidence which supports their case. See Matanmi vs. Dada (supra), Oguanuhu vs. Chiegboka (supra) and Kazeem & Anor vs. Mosaku & Ors (2007) LPELR 1684 SC.
On the counter-claim, the Court below found that the counter-claim had not been established.
It is common ground between the parties that what the Appellants were counterclaiming were three different farmlands, one of the farmlands cleared by Maidaki Lauyeriji which the 2nd Appellant inherited. Another farmland was founded by Kwamba Sutiya uncle to 3rd Appellant which the 3rd Appellant inherited. The third farmland was founded by Angulu Ya’ anang who was uncle to the 5th Appellant who inherited the 3rd farmland. From the entire evidence led by the Appellants it cannot be said that evidence was led to show what portion of the land belongs to the 2nd Appellant or the 3rd Appellant or even to the 5th Appellant. Where a plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming his action should be dismissed: see Gbadamosi vs. Dairo (2007) 3 NWLR (Pt. 1021) 282 and Aribe vs. Asanlu (1980) 5 – 7 SC 78.
The Court below dismissed the counterclaim because the Appellants failed to show the identity and exact farmlands 2nd, 3rd and 5th Appellants were each claiming. That finding cannot be faulted.
As shown earlier in this judgment DW1, DW6 and DW10 under cross-examination stated that the Respondents had been in possession of the land in dispute. Where a party is admitted to be in possession of land in litigation between the parties, the onus is on the other side which is asserting the contrary to prove that the party in possession is not the owner. See Section 143 of the Evidence Act 2011, Ezukwu vs. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 and Udeze vs. Chidebe (1990) 1 NWLR (Pt. 125) 141. The Appellants witnesses having admitted that the Respondents are in possession of the farmland, the Appellants had a burden to prove that the Respondents are not the owners of the disputed farmland. They failed to discharge that burden.
Issue 4 is also resolved against the Appellants and in favour of the Respondents.
All four issues having been resolved against the Appellants, this appeal should be dismissed for want of merit.
The appeal is dismissed.
The judgment of the Court below is affirmed by me.
Respondents are awarded N100, 000 costs to be paid by the Appellants.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft form the leading judgment just delivered by my learned Brother, James Shehu Abiriyi, JCA in this appeal.
I am at one with His Lordship’s line of reason and the conclusion reached in the said leading judgment that the appeal is devoid of merit. I accordingly dismiss it and abide by the consequential orders made therein including that of costs.
SAIDU TANKO HUSSAINI, J.C.A.: I had the privilege of reading in draft the Judgment just delivered by my learned brother, Abiriyi JCA and I agree with my noble Lord, that the appeal lacks merit and should be dismissed. I accordingly dismiss this appeal and abide by all the consequential orders made in the lead Judgment including the order as to Cost.
Appearances:
Chief Caleb Ubale Esq.For Appellant(s)
Emmanuel Nwaekwe Esq.For Respondent(s)
