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PETER NIBANG & ANOR v. AGWAI MADAKI (2019)

PETER NIBANG & ANOR v. AGWAI MADAKI

(2019)LCN/13745(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of August, 2019

CA/MK/12/2016

 

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. PETER NIBANG
2. UMARU DANLADI GARBA Appellant(s)

AND

AGWAI MADAKI Respondent(s)

RATIO

WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

It is no longer in doubt that a claimant for title of any piece of land is required to establish his right or entitlement to the land in one of five ways. These methods of proof have been rightly set out by both learned Counsel for the parties as handed down by appellate Courts in numerous decisions over the decades. They are briefly as follows:
1. Proof by traditional evidence;
2. Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilizing the land beneficially, such acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that he is the true owner;
3. Proof by production of document(s) of title which must be authenticated;
4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done;
5. Proof of possession of connected or adjacent land, circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See Dakolo V Rewane-Dakolo (2011) LPELR-915(SC) 23; Idundun V Okumagba (1976) 9-10 SC 224. PER SANKEY, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS

It is also settled that parties, as well as the Court, are bound by the pleadings and none can go outside the pleadings before the Court. It is only a case made out in the pleadings that can be proved. A party cannot prove a case he did not make out in his pleadings. Thus, any such evidence adduced on facts outside pleadings must be jettisoned as it goes to no issue. Thus, if facts needed to establish a right to a relief is to be relevant, they have to be pleaded by the party seeking to rely on same to establish his claim or right to relief. It is only after the relevant facts are pleaded that evidence would be admissible to establish the existence of the fact. That is why evidence of facts not pleaded goes to no issue because parties join issues on the facts pleaded and only need evidence to establish the facts so pleaded. See Yare V National Salaries, Wages & Income Commission (2013) LPELR-20520(SC) 13; Adekeye V Adesina (2010) 125 SC (Pt. 11) 28; Confidence Bireau de Change V Ndeanefo (2016) LPELR-40934(CA) 17; Asiru V Asiru (2013) LPELR-22075(CA) 27; Amadi V Nwosu (1992) 6 SCNJ 59; Osho V Foreign Finance Corp. (1991) 4 NWLR (Pt. 184) 157. PER SANKEY, J.C.A.

WHETHER OR NOT A PARTY WHO RELIES ON TRADITIONAL HISTORY IN PROOF OF TITLE TO LAND MUST PLEAD AND PROVE WHO FOUNDED THE LAND

It is trite that a party who relies on traditional history in proof of title to land must plead and prove who founded the land, how the land was founded, and the particulars of the intervening owners. In Eze V Atasie (2000) 6 SC (Pt. 1) 214 at 220, the Supreme Court held thus:
?The law is that to establish the traditional history of land relied on as root of title a plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the pleading of the devolution and evidence in support must be reliable being credible or plausible; otherwise the clam for title will fail.?
Also in Alli V Aleshinloye (2000) 6 NWLR (Pt. 660) 177, 203, the Supreme Court again held:
?It is not sufficient for a party who relies for proof of title to land on traditional history to merely prove that he or his predecessors in title had owned and possessed the land from time immemorial. Such a party is bound to plead such facts as (a) who founded the land; (b) in what manner was the land founded and the circumstance leading to it; (c) the names and particulars of the successive owners or trustees through whom the land devolved from the founder to a living descendant or descendants who most likely will give oral history. The traditional evidence of first settlement on or the founding of land will not be admissible let alone accepted and acted upon without the above pleadings.?
See also Anyafulu V Meka (2014) LPELR-22336(SC) 23, per Akaahs, JSC; Odubote V Okafor (2012) LPELR-9242(CA) 29; Odumosu V Oluwole (2002) LPELR-12307(CA) 26; Achiakpa V Nduka (2001) 9 MJSC 137, 160. PER SANKEY, J.C.A.

WHETHER OR NOT WHERE A PARTY FAILS TO PROVE HIS TITLE THROUGH TRADITIONAL HISTORY, HE CAN NOT FALL BACK ON ACTS OF OWNERSHIP OR LONG POSSESSION

Furthermore, it is the law that where a party fails to prove his root of title through traditional history he cannot fall back on acts of ownership or long possession because there would be nothing on which to hinge such acts.
In Dabo V Abdullahi (2005) LPELR-903(SC) 25, Onu, JSC held:
?The law is equally settled that where the radical title pleaded is not proved, it is not permissible to support a non-existent root of title with acts of possession. It is not permitted to substitute a root of title that has failed, with acts of possession which could have derived from that root. See Odofin V Ayoola (supra) 116 and Ndukwe V Acha (1998) 6 NWLR (Pt. 552) 25, (1985) 5 SCNJ at 28 at 38-39.?
Again, in Ezukwu V Ukachukwu (2004) 17 NWLR (Pt. 902) 227, the Supreme Court stated the law thus:
?A party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where he relies on traditional history and in addition, acts of ownership and long possession predicated on the traditional history as pleaded, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of history is unavailable.? See also Okoli V Omagu (2014) LPELR-22665(CA) 43; Awopegba V Adeloro (2012) LPELR-19706(CA) 27; Dikko V Abdul (2014) LPELR-23625(CA) 24; AES Ltd V Ekpo (2012) LPELR-19693(CA) 41. PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Nasarawa State sitting at Mararaban Gurku in suit no. NSD/MG8/08, delivered on 10th June, 2014 by Offo, J. Therein, the lower Court dismissed the Appellants’ claim and entered Judgment for the Respondent in terms of his counter-claim against the Appellants.

The facts leading to the Appeal are briefly as follows: By an Amended Writ of Summons and Statement of Claim filed on 15th December, 2011 at the High Court of Justice of Nasarawa State sitting at Mararaban Gurku, the Appellants sought the following reliefs against the Respondent:
a. ?A declaration that the 1st Plaintiff, by virtue of purchase from the 2nd Plaintiff is the rightful owner of all that parcel of farmland, situate, lying and being at Anacha in Gurku Village, Karu Local Government of Nasarawa State, measuring approximately 31.10 hectares and covered by a Power of Attorney dated 1st day of July, 2006 which the defendant trespassed into, by cutting down economic trees and cultivating crops in the land, claiming same to be his thereby

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depriving the 1st Plaintiff the title, use and quiet enjoyment of his farmland.
b. A declaration that the 2nd Plaintiff being the original owner by inheritance of the parcel of land described in claim (a) above sold it to the Plaintiff, and that any other contrary claim of ownership by inheritance or purchase of same by the Defendant is false and malicious.
c. A declaration that forceful entry into the 1st Plaintiff?s land by the Defendant and cutting down the economic trees and chasing away people working for the 1st Plaintiff on the said farmland constitutes an act of trespass.
d. An Order of perpetual injunction restraining the Defendant, his privies and any other person claiming through him from any further act of trespass to 1st Plaintiff?s farmland.
e. Cost of filing this suit.?

In response, the Respondent as, Defendant, filed an Amended Statement of Defence as well as a counter-claim. In the counter-claim, the Respondent sought the following reliefs against the Appellants, jointly and severally:-
i. ?A declaration that the Madaki family is the owner of the land in dispute lying, being and situate at

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Kukagye along Gbaradna road in Gurku-Gbagyi Village Area, Karu Local Government Area of Nasarawa State and that the said family is exclusively entitled to be granted a Certificate/right of occupancy over same.
ii. A declaration that the purported sale of fifty (50) plots or any portion of the disputed land by the 2nd Plaintiff to the 1st Plaintiff is null, void and of no effect whatsoever.
iii. A declaration that the Plaintiffs’ entry and cutting down/destruction of economic trees on the said land without the knowledge and consent of the Defendant amounts to trespass.
iv. An Order setting aside the purported sale of fifty (50) plots or any portion of the disputed land by the 2nd Plaintiff to the 1st Plaintiff or anyone at all.
v. The sum of N2, 000,000.00 (Two Million Naira) as damages for trespass.?

To prove their case, the Appellants (Plaintiffs) called six witnesses and tendered two exhibits, marked ?A’ and ?B?; while the Respondent (as Defendant) called five witnesses. At the close of the Respondent’s case, the Court visited the locus in quo.

The Appellants’ case was that 2nd Appellant inherited the

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land from his forebears and sold part of it to the 1st Appellant; while the Respondent?s case was that the land was inherited from his own progenitors and the land has been in the possession of his family at all times.

In its Judgment delivered on 10th June, 2014, the lower Court dismissed the Appellants’ claim and entered Judgment in favour of the Respondent on his counter-claim. Dissatisfied with the decision, the Appellants lodged an Appeal to this Court vide a Notice of Appeal dated and filed on 1st September, 2014 wherein they complained on five grounds.

At the hearing of the Appeal on 16-05-19, S.E. Gbaji, Esq., holding the brief of John Abah Augustine Esq., adopted the Appellants? Brief of argument filed on 01-03-19 but deemed filed on 16-05-19 in urging the Court to allow the Appeal. A. Na-Allah Esq., in turn adopted the Respondent?s Brief of argument filed on 08-02-19 but deemed filed on 16-05-19, in urging the Court to dismiss the Appeal.

The Appellants, in their Brief of argument, distilled four issues from the five grounds of appeal for the determination of the Court as follows:
I. ?Was the lower Court

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justified or right howsoever in holding that “I do agree with the learned counsel that PW6’s evidence in this regard is worthless since it is not in accordance with the pleadings before me”? (Ground 1)
II. Whether having regard to the facts of this suit, the trial Court did evaluate the material evidence presented to it before holding that there was no evidence of purchase of portions of land by the 1st Appellant? (Grounds 2 and 4)
III. Whether a mere reference to Section 18(1) of the Surveyors Registration Council of Nigeria Act in the Respondent’s final address, without any fact of the commission of a crime by PW4, forms a basis for the lower Court to hold that the Exhibit “B” was a product of crime without probative value”? (Ground 3)
IV. Did the lower Court make any evaluation or determination on the Appellants’ defence to the counterclaim in its Judgment? As a corollary, if the lower Court did not, what is the consequence of such failure on the counterclaim reliefs”? (Ground 5)

The Respondent also formulated the following issues for determination in his Brief of argument:
i. Whether the Appellants discharged the onus placed on

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them by law to entitle them to Judgment at the trial.
ii. Whether the Respondent established his Counter-Claim before the trial Court to warrant the said Court entering Judgment for him.
iii. Whether the trial Court properly evaluated the evidence of the parties at trial before arriving at its decision.

After scrutinizing the issues vis–vis the grounds of appeal, I adopt the issues framed by the Respondent in the resolution of the Appeal as they are identical to the Appellants? issues, except that they are more succinctly crafted. However, the three issues, which are inter-dependant, will be addressed together.
ARGUMENTS
Issues one, two and three ?
i. Whether the Appellants discharged the onus placed on them by law to entitle them to Judgment at the trial.
ii. Whether the Respondent established his Counter-Claim before the trial Court to warrant the said Court entering Judgment for him.
iii. Whether the trial Court properly evaluated the evidence of the parties at trial before arriving at its decision.
?
Learned Counsel for the Appellant submits that the lower Court?s blanket holding in its

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Judgment that PW6’s evidence is worthless because it is not in accordance with the pleadings formed the basis for its position that the 1st Appellant’s title via the 2nd Appellant was not established. He contends that the Court therefore held that since the 2nd Appellant’s traditional history was not pleaded, there was nothing upon which the 1st Appellant’s title could be hinged. Counsel contends that the lower Court was in error as the 2nd Appellant’s root of title was pleaded and evidence was led in support at the trial. Reference is made to paragraph 4 of the Amended Statement of claim and paragraph 7 of the 2nd Appellant’s Statement on oath. Counsel therefore submits that the Appellants pleaded the traditional history of the 2nd Appellant’s title from his great grandfather up to the present, and also led evidence in support thereof. Thus, that the lower Court’s holding was in error as it glossed over the material facts pleaded in respect of the 2nd Appellant’s traditional title when it held that the evidence led in support was worthless. Counsel therefore contends that the lower Court misunderstood the case before it and in consequence excised pleaded

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facts in arriving at its decision. He submits that where a Court misunderstands the party’s case before it, the decision arrived at would be set aside. Reliance is placed on Com. for Works, Benue V Devcom Ltd (1988) 3 NWLR (Pt. 83) 407, 420, B; Adejugbe V Ologunja (2004) 6 NWLR (Pt. 868) 46, 70 C-E, 76 C-D.

Counsel further submits that the failure of the lower Court to consider this singular pleading and the evidence in support is perverse, amounts to a denial of fair hearing and thus occasioned miscarriage of justice. He relies on Okonji V Njokanma (1991)7 NWLR (Pt. 202) 131, 152; FMCT V Eze (2006) 2 NWLR (Pt. 964) 221, 241; Ikono LG V De Beacon Finance & Securities Ltd (2002) 4 NWLR (Pt. 756) 128; 143 per Edozie JCA (as he then was); Okpaleke V NEPA (2003) 14 NWLR (Pt. 840) 383, 409, 410-411.

On whether the lower Court evaluated the evidence presented by the Appellants, Counsel submits that the Appellants’ pleadings clearly set out the basis for the issues and claims before the Court. He refers to paragraphs 4 and 7 of the Amended Statement of Claim where the Appellants averred that the 2nd Appellant inherited the land in dispute from his

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great grandfather and after exercising several acts of ownership over the land, sold part of his land to the 1st Appellant. It was also alleged therein that the Respondent forcefully entered into the land and cut down economic trees contending that the land belongs to him. The witness statements on oath of PW1, PW2, PW3, PW5 and PW6 which were adopted at the trial, affirmed that the land in issue belonged to the 2nd Appellant (and some other persons) and that same was sold to the 1st Appellant. He contends that none of these testimonies were contradicted in the course of the cross-examination. Also PW2, PW3, PW5 and PW6 all stated that the land was purchased by 1st Appellant from the 2nd Appellant and other persons whom they named. He therefore submits that the issue of purchase of land by the 1st Appellant remained un-contradicted and was established by oral evidence.
?
Counsel contends that despite the state of facts, the lower Court held that there was no evidence of purchase of the various portions of land by the 1st Appellant from the people mentioned in the Amended Statement of Claim. The reason given for this finding was that Exhibit ?A?,

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the Power of Attorney, was discredited. It based its finding on the following grounds:
(i) that the 2nd Appellant denied signing Exhibit ?A? in the course of his cross-examination by the Respondent’s Counsel; and
(ii) that there were some material contradictions in the evidence of PW1, PW3 and PW6 in relation to Exhibit ?A?.

The lower Court therefore held that this rendered Exhibit ?A? useless and without evidential value. Counsel submits that in arriving at this finding, the lower Court merely agreed with the Respondent?s Counsel’s misleading submission that the donor of Exhibit ?A?, the 2nd Appellant/PW6, had denied signing the document. However, Counsel contends that the facts before the lower Court proved otherwise and refers to the evidence of PW6 under cross-examination. He therefore submits that the donor of Exhibit ?A? signed the document by writing his name on it as can be gleaned from the document itself. Also that a signature could be a mark or merely writing of a name on a document, which PW6 did and affirmed. Reference is also made to the

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Black’s Law Dictionary,  8th Edition at page 1415 for the definition of ?Signature? as “Any name, mark, or writing used with the intention of authenticating a document.” Counsel therefore contends that it is of no moment whether 2nd Appellant/PW6 signed with his name or with a formal signature. Since PW6 admitted the document to be his own in his pleadings, his testimony as well as under cross-examination, the doctrine of scriptum predictum non est factum sum, as held by the lower Court, does not apply.
?
In respect of the further finding of the lower Court that there were material contradictions in the evidence of PW1, PW3 and PW6 in relation to Exhibit ?A?, Counsel contends that the lower Court did not point these out in its Judgment. The lower Court cannot therefore speculate on what the material contradictions in relation to Exhibit ?A? are. He contends that there were no such material contradictions in the evidence of PW1, PW3 and PW6 in relation to Exhibit ?A?, and that the lower Court did not evaluate any of the oral testimonies and documentary evidence presented to it before arriving at this finding; but relied solely on the

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submissions of the Respondent’s Counsel.

As an alternative submission, Counsel submits that even assuming that the Exhibit ?A? was useless and without evidential value, the uncontroverted oral testimonies of PW1, PW2, PW3, PW5 and PW6 in respect of the sale and purchase of the land in issue still stands as evidence; but that this was also disregarded by the lower Court. It neither credited nor discredited the testimonies of the Appellant’s Witnesses, but simply ignored them in its decision. Counsel therefore contends that the lower Court did not evaluate any aspect of the facts grounding the Appellant’s case besides reproducing the written addresses of Counsel in its Judgment, despite having a duty to do so. He also submits that the lower Court is not permitted to pick only the evidence favourable to one of the parties and disregard the evidence on the other side. Reliance is placed on Olagunju V Adesoye (2009) 4 MJSC (Pt. 1) 76, 113, D-E; Udengwu V Uzuegbu (2003) 13 NWLR (Pt. 836) 136, 151-152, G-B; & Gonzee V NERDC (2005) 12 MJSC 179.
?
Counsel thus submits that by glossing over all the facts in the Appellants’ case and refusing to

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review the evidence presented by the Appellants, the lower Court denied the Appellants’ fair hearing. Its failure to evaluate the Appellants’ evidence means that the Appellants’ case has not been considered; and that where there is a breach of fair hearing and miscarriage of justice, the whole proceeding, including the Judgment, will be a nullity. Fagunwa V Adibi 12 MJSC 1, 26, B-G; Adebayo V Shogo 7 NWLR (Pt. 480) 482; & Adah V NYSC (2004) 13 NWLR (Pt. 891) 639, 649 & 650; Ukachukwu V PDP (2014) 17 NWLR (Pt. 1435) 134, 163; Anyanwu V Ogunewe (2014) 8 NWLR (Pt. 1410) 437, 460; & Ojo V FRN (2008) LPELR-5155 at 93, A-C are relied on.
?
Counsel further submits that the lower Court stated that its decision not to accord any probative value to Exhibit ?B? was based on its consideration of Section 18(1) of the Surveyors Registration Council of Nigeria Act alone. He however contends that the application of Section 18(1) of the Act (supra) to the facts and circumstances of this case is unfounded in law, in facts and in procedure. This is because the provision only defines a criminal offence and the punishment for its breach. Thus, where a

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criminal offence is allegedly committed contrary to Section 18(1) of the Act (supra), the proper procedure would be to file a criminal charge before a competent Court of criminal jurisdiction against the alleged offender. Counsel submits that the facts and circumstances of the case did not establish that there was the commission of an offence by PW4. Instead, the issues in the case are civil in nature and there are no facts bordering on the commission of a criminal offence in the evidence of both parties before the lower Court. He argues that the Respondent did not provide the details of any commission of a criminal offence contrary to Section 18(1) of the Act (supra). The lower Court?s finding on this was therefore simply based on the Respondent’s Counsel?s submission.
?
Additionally, Counsel submits that Section 18(1) of the Act (supra) was introduced when the Respondent’s Counsel, in the course of his cross-examination of PW4, applied to the Court for the production of PW4’s qualifying certificate. Thereafter, the procedure adopted by the lower Court in ordering that PW4 produce his qualifying certificate, was strange. The production of PW4’s

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certificate or qualification was not made an issue by parties as it did not form part of the pleadings of any of the parties; hence, that its introduction in the course of cross-examination amounts to a denial of fair hearing to the Appellants as facts elicited in the course of cross-examination must derive from pleaded facts before the Court – Okwejiminor v Gbakeji (2008) 5 NWLR (Pt. 1079) 172, 196, C-D per Tabai, JSC. Thus, Counsel submits that the lower Court’s reliance on the non-production of the qualifying certificate of PW4 as the basis for holding that Exhibit ?B? was the product of a crime, was made in error.

Counsel also submits that the lower Court made a case different from the case submitted to it by the parties when it held that Exhibit ?B? was the product of a crime and relied on this position to decide the action against the Appellants. Exhibit ?B? did not form the fulcrum of the case submitted by both parties to the lower Court, yet the lower Court made it one of the key reasons for its decision – Skye Bank Plc V Akinpelu (2010) 3 (Pt. 1) MJSC 158, 173, G. In addition, the Respondent did not place any

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fact before the Court to show that Exhibit ?B? was the product of a crime. He submits that an allegation of crime in a civil suit must be proved beyond reasonable doubt – BEGH Ltd V UHS & L Ltd (2011) 7 NWLR (Pt. 1246) 246, 287, C-F.

Counsel submits that the lower Court cannot use the mere reference to Section 18(1) of the Act (supra) to hold that Exhibit B was the product of a crime or that its maker breached the said Act. The mere fact that PW4 failed to produce his certificate because it was burnt in a fire, does not establish that PW4 committed a criminal offence or that Exhibit ?B? was made contrary to Section 18(1) of the Act (supra).

Learned Counsel further submits that the lower Court did not evaluate or analyze any fact or issue arising from the evidence before it in its Judgment. He contends that the failure of the lower Court to evaluate the facts worked grave injustice to the Appellants. The Appellants? case should have been considered in juxtaposition to that of the Counter-claimant, but such was not done. Rather, the lower Court picked on the case of the Counter-claimant and delivered Judgment on same

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without a consideration of the Appellants’ case. Since both parties led evidence of traditional title to the land in dispute, the lower Court had a duty to evaluate the opposing histories before arriving at a decision. It was faced with two contradicting sets of evidence of traditional histories that were unchallenged. Since the Court did not consider all facts even though the materials were before it, the lower Court came to an erroneous conclusion. Based on these submissions, Counsel urged the Court to resolve the three issues in favour of the Appellants.
?
In response on the issue of whether the Appellants discharged the onus on them to entitle them to Judgment, learned Counsel for the Respondent submits that the Appellants did not establish any of the five methods of proving title to land. The 1st Appellant claimed to have purchased different portions of land constituting the disputed land from six different vendors namely: Umaru Danladi Garba (2nd Appellant); Akoku Maiganga; Mallam Dodo; Galadima; Bala Ngwonki and Auta Gani, respectively. The 1st Appellant contended that his vendors verbally agreed that the 2nd Appellant should donate a Power of

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Attorney covering the entire land to him. The 2nd Appellant (PW6) claimed to have inherited his own portion of the land from his grandfather, Makeri. He however did not plead in his Amended Statement of Claim or in his defence to the counter-claim that Makeri was the person that deforested or founded the land, but rather, inserted it only in his written deposition. Counsel therefore submits that since the act of deforesting or founding of the disputed land was not pleaded by the Appellants, the PW6’s reference to it in paragraph 7 of his evidence goes to no issue. In addition, the act of deforestation or founding of land is a fundamental aspect of proof of title to land by traditional evidence and thus it must be specifically pleaded before it can be accepted in law – Iroagbara V Ufomadu (2009) 11 NWLR (Pt. 1153) 587, 600, F- H per Aderemi, JSC; Nwokorobia V Uchechinwogu (2009) 10 NWLR (Pt. 1150) 553, 573, C-D.
?
Counsel submits that the Appellants did not mention Makeri in their pleadings as the founder of the disputed land and did not state how the land was founded. The issue was only introduced by the 2nd Appellant/PW6 in paragraph 7 of his

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witness? Statement on oath. Therefore, this piece of evidence goes to no issue and the trial Court was right to have dismissed it as worthless. Nwokorobia V Uchechinwogu (supra) 576, D-F, per Mukhtar, JSC is relied on.

Counsel further submits that the Appellants claimed that apart from the 2nd Appellant, the 1st Appellant purchased the other portions of the disputed land from five persons namely: Akoku Maiganga; Mallam Dogo; Galadima; Bala Ngwonki and Auta Gani. However, the Appellants did not trace the respective roots of title of the adjoining portions of land which they claimed were purchased from these other vendors, neither did they establish any of the five methods of proving title to land in respect of the adjoining portions. Salami V Lawal (2008) NWLR (Pt. 1108) 546, 574, A-E; Kano V Maikaji (2011) 17 NWLR (Pt. 1275) 139, 169-170, G-D are relied on.

Counsel submits that the Respondent vehemently denied the claim of the Appellants in his pleadings and thus the Appellant had the onus of establishing his case through credible evidence of the highest probative value – Kano V Maikaji (2011) 17 NWLR (Pt. 1275) 139, 174, B. However, the

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Appellants did not establish 1st Appellant?s purchase from the 2nd Appellant of any portion of the disputed land. Also, since the 2nd Appellant did not establish his title to the disputed land, he could not have sold the land to the 1st Appellant, as he cannot give what he does not have. In addition, Counsel submits that from the pleadings and evidence, the Appellants did not prove the purchase of any adjoining portions of land by the 1st Appellant. They had pleaded and led evidence that the 1st Appellant purchased various portions of land constituting the disputed land from the 2nd Appellant, Akoku Maiganga, Mallam Dogo, Galadima; Bala Ngwonki and Auta Gani respectively, and that that the said vendors verbally agreed that the 2nd Appellant should donate a single Power of Attorney, Exhibit ?A?, covering the entire land, instead of separate agreements for each person.

Counsel further submits that the worthlessness of Exhibit ?A? is res ipsa loquitur. It contradicts paragraphs 7, 8 and 9 of the Amended Statement of Claim as the document only indicates that the 2nd Appellant was the beneficial owner of the said land and that he

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was transferring his interest in the land. He only executed it for himself, and not on behalf of any other vendor, contrary to the Appellants’ claim that the 1st Appellant purchased different portions of the land from six different people.

In the Respondent?s defence, Counsel submits that the pleadings and evidence of the Appellants on the purchase of the disputed land was denied, challenged and controverted. There was no sale agreement evidencing the purchase of the land by the 1st Appellant. Instead, what the Appellants tendered was an ?Irrevocable Power of Attorney? Exhibit ?A?, which is not a document of title conferring title to land. Ezeigwe V Awudu (2008) 11 NWLR (Pt. 1097) 158, 176, A-D is relied on.

In addition, Counsel submits that the oral testimonies of the Plaintiffs’ witnesses contradicted their documentary evidence on the purchase of the various portions of land constituting the disputed land. Thus, the learned trial Judge rightly held that there was no evidence of purchase of these various portions of land by the 1st Plaintiff from the people mentioned in the Amended Statement of Claim.

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Counsel submits in the alternative that, assuming that the 1st Appellant purportedly purchased the disputed land under native or customary law, such purchase was not established at the trial. He submits that for a sale of land under native or customary law to be valid, the following requirements must be met:
(1) there must be payment of money or agreed consideration;
(2) the transaction must be witnessed by witnesses; and
(3) the actual handing over of the land must be done in the presence of the same witnesses.
Reliance is placed on Atanda V Hon. Com. for Lands & Housing, Kwara State (2018) 1 NWLR (Pt. 1599) 32, 53, F-H; & Orunengimo V Egbe (2007) 15 NWLR (Pt. 1058) 630, 650, G-H.

Counsel submits that from the pleadings and evidence before the trial Court, none of these requirements was met by the Appellants. By introducing Exhibit ?A?, the Irrevocable Power of Attorney, the Appellants’ transaction was meant to be governed by or made under English Law, rather than under native law and custom. Therefore, the Appellants cannot turn around to claim that the transaction was done under native or customary law. Reliance is

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placed on Atanda V Hon. Com. for Lands & Housing, Kwara State (supra) 54, D-G, per Sanusi, JSC.

On the issue of Exhibit ?B?, Counsel submits that it is an expert opinion which was supposed to be presented by an expert. Reference is made to the evidence of PW4 (John Dajele) through whom it was tendered, and paragraphs 1-6 of his written statement on oath. The written depositions of John Dajele were adopted as the oral evidence of PW4 and Exhibit ?B?, the survey plan produced by PW4, was admitted in evidence. During cross-examination, PW4 stated thus:-
?I am a registered surveyor registered with the F.C.D.A. Lands Department. I know the Surveyor’s Registration Council. I have attended an examination with them and issued a Certificate. It is HND it stands for H. Honor N. National D. Diploma. It is this Certificate that was issued to me by the Surveyors Registration Council in 1976. I know everything I know as Higher National Diploma. It is obtained from Polytechnics. I used Secondary Certificate. I can present the Certificate in this Court.?

Counsel submits that the Surveyors Registration Council of Nigeria

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was established by the Surveyors Registration Council of Nigeria Act, 1990 with a commencement date of 15th December, 1989 ? (Section 1(1) of the Surveyors Registration Council of Nigeria Act, (1990). Thus, for PW4 to testify that he was registered as a surveyor by the Surveyors Registration Council of Nigeria in 1976, i.e.13 years before the creation or establishment of the Council, is a clear indication that he is not a registered surveyor. Therefore, the trial Court was right to have refused to attach any evidential value to Exhibit ?B?, the survey plan.

Based on the application of the Respondent’s Counsel, the matter was adjourned to 21st March, 2013 to enable PW4 to produce the said Surveyor?s Certificate. Since then, PW4 refused to appear in Court again until 28th October, 2013, after a bench warrant was issued against him. PW4 then turned around to say under oath that the certificate he referred to was destroyed by fire when his house was burnt into ashes in 2007.
?
In response to the contention of the Appellants that the application of Section 18(1) of the Surveyors Registration Act (supra) by the trial Court was

24

unfounded in law, fact and procedure since it did not form part of the pleadings of the parties at the lower Court, and that its introduction in the course of cross-examination portends a denial of fair hearing against them, Counsel submits that this is a gross misconception of the law. He contends that it was the Appellants who introduced this through the evidence of PW4. Also, that PW4, having held out himself as a registered surveyor, there was nothing wrong in asking him to produce his certificate of registration as a registered surveyor. Counsel contends that a person can only practice or hold himself out as a surveyor if he is duly registered under the Surveyors Registration Act (supra). Such a person is an expert and any evidence, oral or documentary, adduced by him in his capacity as surveyor, is an expert opinion; and the opinion of an expert witness can only form part of the evidence before the Court if his qualification and experience is stated before the Court. Goyol V INEC (No. 2) (2012) 11 NWLR (Pt. 1311) 218, 233, F-H per Nwodo, JCA is relied on. Counsel therefore submits that the trial Court was right when it held that Exhibit ?B?

25

had no evidential value.
?
Counsel however submits that assuming the Surveyor?s Certificate was not pleaded, since it was to be used to contradict the witness on his claim of being a registered surveyor, it was admissible in law and thus the Appellants were not denied fair hearing when PW4 was asked to produce his qualifying certificate during cross-examination. Ogu V MTMCS Ltd (2011) 8 NWLR (Pt. 1249) 345, 378, F-G is relied on.

Additionally, Counsel submits that by the pleadings and evidence before the trial Court, the identity of the land in dispute was known to all the parties, they were ad idem on the identity of the land and so it was not in issue. Thus, a survey plan was not necessary. Tanko V Echendu (2011) 18 NWLR (Pt. 1224) 253, 276, A-B per Tabai, JSC is relied on. Therefore, the refusal of the trial Court to place any probative value on Exhibit ?B?, the Survey Plan, did not affect the outcome of the case in anyway.
?
On the issue of whether the Respondent established his counter-claim before the trial Court to warrant the lower Court entering Judgment for him, learned Counsel submits that the Respondent, as

26

Defendant/Counter-Claimant, pleaded in his Amended Statement of Defence and Counter-Claim that the land in dispute belongs to the Madaki Family, that he is a member of that family, that the family inherited the land from his father, Madaki Anyitomizai, that Madaki Anytomizai inherited the land from his father, Anyitomizai lya, that Anyitomizai lya inherited the land from his father, lya Dadayako, who in turn inherited same from his father, Esu Dadayako, and that Esu Dadayako was the person that deforested the land and farmed on it (paragraphs 5-15 of the Amended Statement of Defence and Counter-Claim, which was substantiated by paragraphs 7, 8, 10, 11, 12, 13, 14 and 21 of the written depositions of DW4 (Agwai Madaki, the Respondent) and paragraphs 10-14 of the written deposition of DW1 (Mrs. Kande Madaki).
?
Counsel submits that the Respondent also pleaded and led evidence on acts of ownership over the disputed land by the Madaki family. He traced the root of his title to Esu Dadayako who founded the said land by deforesting and farming thereon, described boundaries and named his boundary neighbours as Gbaradna road to the North, Akoku Maiganga to the

27

West, Bebwi family to the South- East and Shindaba family to the East. Also that Dauda Tolonu was their customary tenant who farms on the disputed land with the permission of the Madaki family, and he pays yearly customary tribute of one bundle of guinea-corn to the Madaki family for using the land. There are traces of old settlements on the land and there are economic trees thereon such as mango, Shea-butter, Locust Bean trees, etc, which the Madaki family exclusively harvests without any challenge from anyone.
?
Counsel therefore submits that from the totality of evidence before the lower Court, the Respondent established his title over the disputed land against the Appellants by tracing his root of title to Esu Dadayako, who founded the land by deforesting and farming on it, satisfactorily proved the identity of his land by establishing the location, his boundary neighbors and other physical features on the said land ? (testimonies of DW1-DW5); thus establishing his title through traditional evidence, proof of acts of ownership and possession over a sufficient length of time numerous and positive enough as to warrant the inference of true

28

ownership and acts of land possession. This therefore entitled him to Judgment on his Counter-Claim. Reliance is placed on Salami V Lawal (2008) 14 NWLR (Pt. 1108) 546, 549; & Kano V Maikaji (2011) 17 NWLR (Pt. 1275) 139, 169-170, G-D.

Counsel also submits that a party can rely on more than one of the five ways of proving title to land. Mkpinang V Ndem (2013) 4 NWLR (Pt. 1344) 302, 313, A-B is relied on. The Court is therefore urged to find that the Respondent did not only establish his title via traditional history, but he also proved acts of ownership and possession of the disputed land by farming on it, granting a portion of it to a customary tenant and exclusively harvesting the fruits of the economic trees thereon without any challenge. Furthermore, Counsel submits that the lower Court properly evaluated the evidence of all the parties before it by reviewing it, considering its admissibility, relevance and credibility, and decided which evidence was more probable than the other (pages 238-247 of the Record). The Appellants’ Counsel’s only complaint is that the trial Court relied on the submissions of the Respondent’s Counsel. He however contends

29

that it is not enough for an Appellant to allege that the evidence was not properly evaluated by the trial Court. He has to point out the error complained of, and also convince the appellate Court that if corrections are made, the decision of the trial Court will not stand. Oluyede V Access Bank Plc (2015) 17 NWLR (Pt. 1489) 596, 611, D-E is relied on. He finally urged the Court to resolve the issues in favour of the Respondent.

Findings –
It is no longer in doubt that a claimant for title of any piece of land is required to establish his right or entitlement to the land in one of five ways. These methods of proof have been rightly set out by both learned Counsel for the parties as handed down by appellate Courts in numerous decisions over the decades. They are briefly as follows:
1. Proof by traditional evidence;
2. Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilizing the land beneficially, such acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that he is

30

the true owner;
3. Proof by production of document(s) of title which must be authenticated;
4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done;
5. Proof of possession of connected or adjacent land, circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See Dakolo V Rewane-Dakolo (2011) LPELR-915(SC) 23; Idundun V Okumagba (1976) 9-10 SC 224.

In the instant case, to prove their title to the property in dispute, the Appellants relied on traditional history/evidence, acts of ownership and possession, and documents of title. The Respondent also relied on traditional history. In considering traditional history, it goes without saying that history is all about evaluating belief on the basis of credibility. Thus, a declaration of title to land is granted at the discretion of the trial Judge after hearing both sides. So, in order to succeed, a plaintiff must show how the land devolved and eventually came to be owned by him. This is done by the Plaintiff narrating a continuous chain of devolution

31

which is tested by cross-examination. On the conclusion of oral testimony the trial Judge is to decide which of the two parties is telling the truth and proceed to grant a declaration of title to the side that he is impressed with. The plaintiff succeeds on the strength of his case and not on the weakness of the defence. It is only where there is conflict in traditional history that the approach to resolve the issue spelt out in Kojo II V Bonsie (1957) 2 WLR 1223, applies.
Put more explicitly, when a party pleads traditional history as the basis of title in a land matter, such history must show the foundation of the title relied upon; that is, the very origin of that title. If the source of title of the plaintiff had arisen in the first place by conquest, first settlement, purchase or gifts, this must be pleaded. The devolution of that title over the years is then traced and the plaintiffs are linked by their genealogy to the persons to whom the title has devolved through the years. This is what is meant by the statement that traditional history must make consistent sense.
?
In their Brief of argument before this Court in particular, the Appellants

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refer and rely on paragraphs 4 and 7 of the Amended Statement of Claim (contained at pages 77 to 80 of the Record of Appeal for their pleadings in this regard. For ease of reference, the contents thereof, as well as paragraphs 8 and 9 which I believe are also relevant to this issue, are set out as follows:
?4. The 2nd Plaintiff avers that the parcel of land now in dispute is part of a larger tract of land today known as Anacha Land, lying situate and being by Gwarada road Gurku within the jurisdiction of this Court which the 2nd Plaintiff inherited from his great grandfather called Makeri, after the demise of Makeri, his son Kobe inherited it after the demise of Kobe who begat the 2nd Plaintiff father called Danladi who inherited the land before devolved onto the 2nd Plaintiff.
7. The 2nd Plaintiff avers that sometimes in the year 2006 he sold greater portions of land out of the greater tract and called Anacha to the 1st Plaintiff by donating the power of attorney to him which will be founded and relied upon at the hearing of the suit.
8. The 2nd Plaintiff further avers that 5 of his relations, namely: (1) Akoku Maiganga (2) Mallam Dogo

33

(3) Galadima (4) Bala Ngwoki (5) Auta Gani who are his boundary neighbours also sold their respective portion to the 1st Plaintiff.
9. The 2nd Plaintiff further avers that the persons mentioned above verbally agreed the 2nd Plaintiff should donate a single Power of Attorney covering the entire land instead of separate agreement for each person moreso when they are from the same family and kindred.?

Thus, by these pleadings, the facts pleaded in satisfaction of traditional history as contained in paragraphs 4 and 7 above is that the 2nd Plaintiff?s great grandfather, Makeri, owned the portion of the land in dispute which he sold to the 1st Appellant, which land devolved upon his son, Kobe, and then to Danladi, the 2nd Plaintiff?s father and then passed on to the 2nd Plaintiff. In proof of this pleading, the Appellants offered the evidence of the 2nd Plaintiff who testified as PW6. In his Witness statement on oath (at pages 97 to 98 of the Record), PW6 deposed inter alia as follows:
?6. That the parcel of land now in dispute is part of a larger trait of land today known as Anacha land which is by Gwarada Road Gurku within

34

the jurisdiction of this Court which I inherited from my forbears.
7. That my great grandfather called Makeri was the person that deforested the land after his demise Kobe inherited after the demise of Kobe, my father Danladi inherited the same land.
8. That the land called Anacha measures more than 30 hectares.
9. That my family have been farming on the land from time immemorial and I share boundaries with Sariki Amadu, Manu Maikasuwa by the north side by the west side is a swampy stream by the south is a Road called Gwandu Road leading to panda and by the east I share boundary with Akoku Maiganga who later sold his own portion to the 1st plaintiff.?

The Appellants complaint here is centered on the finding of the learned trial Judge agreeing with the Defendant (now Respondent) that the evidence of the PW6 referred to above was outside the Appellants? pleadings and therefore goes to no issue. Factually, this finding cannot be faulted. It is evident that even though the Appellants pleaded that the land devolved onto the 2nd Appellant by inheritance through his great grandfather Makeri, his grandfather Kobe and his father

35

Danladi, they failed to plead facts to ground the evidence adduced through the PW6 as to who first founded the land. Legally again, the finding cannot be faulted as the law is trite that a party is not entitled to lead evidence in respect of matters not pleaded. He can therefore not depart from his pleadings and is confined to lead evidence only in respect of matters pleaded. Any evidence which is not supported by the pleadings goes to no issue.
The law is well settled that the main function of pleadings is to ascertain, with as much certainty as possible, the various matters actually in dispute between the parties and to isolate those in which there is agreement. Hence a pleading is expected to be sufficient, comprehensive and accurate. See Lawal V Ohida (2009) LPELR-8372(CA) 70; UTB (Nig) Ltd V Ajagbule (2005) LPELR-7563(CA); Morohunfola V Kwara Tech. (1990) LPELR-1912(SC) 30; George V Dominion Flour Mills Ltd (1963) 1 All NLR 71.
In an action commenced in a Court of pleadings, such as the lower Court, it is the pleadings which form the bedrock of the action. The claimant must plead relevant and material facts that will sustain the action. It is

36

elementary law that facts not pleaded cannot be received in evidence as evidence led on any un-pleaded fact will go to no issue. It is also settled that parties, as well as the Court, are bound by the pleadings and none can go outside the pleadings before the Court. It is only a case made out in the pleadings that can be proved. A party cannot prove a case he did not make out in his pleadings. Thus, any such evidence adduced on facts outside pleadings must be jettisoned as it goes to no issue. Thus, if facts needed to establish a right to a relief is to be relevant, they have to be pleaded by the party seeking to rely on same to establish his claim or right to relief. It is only after the relevant facts are pleaded that evidence would be admissible to establish the existence of the fact. That is why evidence of facts not pleaded goes to no issue because parties join issues on the facts pleaded and only need evidence to establish the facts so pleaded. See Yare V National Salaries, Wages & Income Commission (2013) LPELR-20520(SC) 13; Adekeye V Adesina (2010) 125 SC (Pt. 11) 28; Confidence Bireau de Change V Ndeanefo (2016) LPELR-40934(CA) 17; Asiru V Asiru

37

(2013) LPELR-22075(CA) 27; Amadi V Nwosu (1992) 6 SCNJ 59; Osho V Foreign Finance Corp. (1991) 4 NWLR (Pt. 184) 157.

Having perused the pleadings before the trial Court, I must say that I also agree that the pleadings of the App?ellants in respect of traditional history is grossly deficient and falls below the standard required since the Appellants failed to plead facts disclosing who founded the land before the Appellant?s great grandfather, Makeri, came into ownership of same. It is trite that a party who relies on traditional history in proof of title to land must plead and prove who founded the land, how the land was founded, and the particulars of the intervening owners. In Eze V Atasie (2000) 6 SC (Pt. 1) 214 at 220, the Supreme Court held thus:
?The law is that to establish the traditional history of land relied on as root of title a plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the pleading of the

38

devolution and evidence in support must be reliable being credible or plausible; otherwise the clam for title will fail.?
Also in Alli V Aleshinloye (2000) 6 NWLR (Pt. 660) 177, 203, the Supreme Court again held:
?It is not sufficient for a party who relies for proof of title to land on traditional history to merely prove that he or his predecessors in title had owned and possessed the land from time immemorial. Such a party is bound to plead such facts as (a) who founded the land; (b) in what manner was the land founded and the circumstance leading to it; (c) the names and particulars of the successive owners or trustees through whom the land devolved from the founder to a living descendant or descendants who most likely will give oral history. The traditional evidence of first settlement on or the founding of land will not be admissible let alone accepted and acted upon without the above pleadings.?
See also Anyafulu V Meka (2014) LPELR-22336(SC) 23, per Akaahs, JSC; Odubote V Okafor (2012) LPELR-9242(CA) 29; Odumosu V Oluwole (2002) LPELR-12307(CA) 26; Achiakpa V Nduka (2001) 9 MJSC 137, 160.
?Thus, where title to land

39

is said to have been derived by grant or inheritance, the pleadings must aver facts relating to the founding of the land in dispute, the person(s) who founded the land and exercised original acts of possession and persons on whom title in respect of the land had devolved since the first founding. It is not sufficient for a party who relies for proof of title to land merely to plead that he, and before him, his predecessors in title, had owned the land. He must plead and prove in detail who founded the land, how the land was founded and the particulars of the intervening owners through whom he claims. In the instant case, the Appellants failed to plead the 2nd Appellant?s root of title to wit: who founded the land before it came to his great grandfather, Makeri, and the names and history of the land. In the same vein, the alleged owners of the other portions of land in dispute sold to the 1st Appellant through the 2nd Appellant made no pretense at pleading or adducing evidence as to how they came about the land. See: Ozu V Abidi (2013) LPELR-22871(CA) 8; Bello V Sanda (2011) LPELR-3705(CA) 21; Iroagbara V Ufomadu (2009) 11 NWLR (Pt. 1153) 587.<br< p=””

</br<

40

Furthermore, it is the law that where a party fails to prove his root of title through traditional history he cannot fall back on acts of ownership or long possession because there would be nothing on which to hinge such acts.
In Dabo V Abdullahi (2005) LPELR-903(SC) 25, Onu, JSC held:
?The law is equally settled that where the radical title pleaded is not proved, it is not permissible to support a non-existent root of title with acts of possession. It is not permitted to substitute a root of title that has failed, with acts of possession which could have derived from that root. See Odofin V Ayoola (supra) 116 and Ndukwe V Acha (1998) 6 NWLR (Pt. 552) 25, (1985) 5 SCNJ at 28 at 38-39.?
Again, in Ezukwu V Ukachukwu (2004) 17 NWLR (Pt. 902) 227, the Supreme Court stated the law thus:
?A party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where he relies on traditional history and in addition, acts of ownership and long possession predicated on the traditional history as pleaded, he is not

41

entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of history is unavailable.?
See also Okoli V Omagu (2014) LPELR-22665(CA) 43; Awopegba V Adeloro (2012) LPELR-19706(CA) 27; Dikko V Abdul (2014) LPELR-23625(CA) 24; AES Ltd V Ekpo (2012) LPELR-19693(CA) 41.
Nonetheless, where the evidence of traditional history relied upon by both sides is inconclusive to establish the plaintiff?s title, the plaintiff would only succeed if he is able to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to properly infer that the plaintiff is the exclusive owner. See Arum V Nwobodo (2013) LPELR-20390(SC) per Rhodes-Vivour, JSC.
In the light of all the above, the learned trial Judge was right in holding that the Appellants failed to prove their root of title. At page 246 to 248 of the Record, he held inter alia as follows:
?The contention of the learned defence counsel, first and foremost is that the plaintiffs did not establish any of the five (5) ways of proving title to land. According to him, which is true, the 1st

42

plaintiff is claiming the disputed land which he said he bought from six (6) different persons namely: Umaru Danladi (the 2nd plaintiff); Akoku Maiganga; Mallam Dogo; Galadima; Bala Nwonki and Auta Gani? In paragraph 4, 8 and 9 of the amended plaintiff?s statement of claim, learned counsel submitted that the traditional history of these people who sold their various portions of land to the 1st plaintiff are inconclusive in that none of them mentioned the founders of these various portions of land sold to the 1st plaintiff or the persons who deforested them, that the plaintiff merely pleaded that they are from the same family and did not give any explanation as to how they are connected or related to each other especially that they do share the same surname. Learned Counsel however agreed that PW6, Umaru Danladi Garba stated in paragraph 7 of his written deposition that his great grandfather, Makeri, was the person who deforested the said land?
A careful perusal of the amended statement of claim or defence to counter claim by the plaintiffs does not indicate in any of their paragraphs where this piece of evidence in paragraph 7 quoted

43

above was so mentioned or captured or at best pleaded? I do agree with the learned counsel that PW6?s evidence in this regard is worthless since it is not in accordance with the pleadings before me. Learned counsel further submitted that the plaintiffs did not trace the root of title of all those who purportedly sold the land to the 1st plaintiff. I also agree with him in this regard. Paragraph 8 and 9 of the amended statement of claim is bereft or barren of tracing root of title by these sellers.?

Indeed, both in the pleadings and the evidence of the Appellants, there are yawning gaps which the trial Court could not have filled for them and which made their claim for title porous and unsubstantiated. I therefore find no reason to disturb this finding which was based on the facts and evidence placed before him, as well as the principles of law applicable.

Conversely, the Respondent extensively pleaded and adduced credible evidence in proof of his root of title in his Amended Statement of defence and Counter-claim. At pages 139 to 140 of the Record of Appeal, he pleaded inter alia as follows:
?5. The Defendant state that

44

the said land belong to the Madaki family which was hitherto headed by Madaki Anyitomizai before his demise in the year 2010.
6. The Defendant state that Madaki Anitomizai inherited the said land from his father Anyitomizai Iya.
7. The Defendant state that Anyitomizai Iya inherited land from his father Iya Dadayako who also inherited same from his own father Esu Dadayako of blessed memory.
7. The Defendant state that late Esu Dadayako is the person that first cleared/deforested and farmed on the land in dispute.
8.The Defendant aver thast Esu Dadayako is a former Chief of Gurku-Gbagyi in the present Gurku District, Karu Local Government Area of Nasarawa State.?

He also went on in subsequent paragraphs to set out several acts of ownership and possession carried out by his family over the years, as well as to plead facts in respect of the boundaries of the land (paragraphs 17 to 35 thereof, at pages 141 to 143 of the Record). DWs ? testified in proof of these averments. After reviewing the case before him, the learned trial Judge in his findings at pages 250 to 251 inter alia as follows:
?In respect of the defendant,

45

the traditional history of the land in dispute is pleaded, beginning from the late father of the defendant, Madaki Anyitomiza, down to Esu Dadayako who deforested the land in dispute and farmed thereon (see paragraphs 5-15) of the defendant?s amended statement of defence and counterclaim. These averments? are supported by written deposition of the defendant (DW4) which he adopted as his oral evidence before this Court. Mrs. Kande Madaki (DW3) also testified to this in her paragraph 10-14 of her written diposition (sic) which she adopted. I agree? that these pieces of evidence were not challenged during cross examination. Evidence of acts of ownership also abound in favour fo the defendant? In conclusion, I uphold the submission of ? learned counsel to the defendant that the defendant has proved his title to the land in dispute by traditional history in line with the decisions in Bello V Salami and 1 or V Alh Adetoro Lawal (2008) 14 NWLR (Pt. 1108) 546 at 549 and is therefore entitled to judgment as per his counter claim.?
?
Consequently, I am at one with the learned trial Judge that the traditional history of the

46

Respondent is more probable than that of the Appellants owing to the consistent pleadings and the evidence adduced to back it up. As a corollary to this, the traditional history of the Appellants was deficient in pleadings and so, whatever evidence was adduced thereon goes to no issue. Based on this, there is no compulsion on this Court to fall back on the hallowed principle of law evolved in the case of Kojo II V Bonsie (supra). This is because a Court is impelled by law to apply this principle only when the traditional histories presented by both warring parties are inconclusive and it is in a quandary as to which to accept. Where such a scenario plays out, it will resort to other evidence of recent acts of possession and ownership to assist it in reaching a decision on which side to believe. See Magaji V Ogele (2012) LPELR-9476(CA) 108; Nwokidu V Okanu (2010) 3 NWLR (Pt 1181) 362; Momoh V Umoru (2011) 15 NWLR (Pt. 1270) 217; Ogun V Akinyelu (2004) 18 NWLR (Pt. 305) 362.
Indeed, a careful and holistic study of the Judgment reveals that the trial Court weighed the case of the parties on an imaginary scale in accordance with the law set down in Magaji V Odofin

47

(1978) 4 SC 91, in preferring the totality of the case of the Respondents/Counter-claimants to that of the Appellants, to arrive at the conclusion that the Respondents case was cogent and credible. Thus the Appellants’ complaint that the case of the Appellants was not evaluated by the lower Court and that the learned trial Judge simply adopted the submissions of learned Counsel for the Respondent, is not borne out by the record.

Consequently, based on all my findings above, I resolve all three issues in favour of the Respondent.
Accordingly, I find the Appeal unmeritorious, It fails and is dismissed.
I award costs assessed at to the Respondent against the Appellants.

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance a draft copy of the lead Judgment of my Learned Brother, Jummai Hannatu Sankey, JCA, dismissing this appeal. The issues for determination of the appeal were characteristically comprehensively resolved and I completely adopt the same.

?It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence

48

that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 (Pt. 364) 535 S. C;Umesie v, Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC). The established legal methods of proving title to land are: by traditional evidence; by various acts of ownership numerous and positive and extending over a length or time as to warrant the inference of ownership; by production of title documents; by acts of lawful enjoyment and possession of the land; and by proof of possession adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land. See: Idundun v Okumagba (1976) 9-10 SC 227; Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR- 18890 (SC): Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways: Biariko v Edelt-Ogwuile (2001) 12 NWLR (PT. 726) 235. A Plaintiff who fails to discharge burden of proving his root of title to the land in dispute as pleaded by him, is not entitled to a declaration of title. He cannot fall back on long

49

possession and acts of ownership to prove title. The acts of ownership cannot stand independently. Title to the land must precede acceptable acts of ownership, more so in the face of challenge by the adverse party. Therefore the plaintiff in the contest must first prove a valid root of title to be able to rely on acts of ownership or long possession; Owhonda v Ekpechi (2003) 9 – 19 S.C.1, (2003) LPELR-2844(SC); Odofin v. Ayoola (1984) LPELR-2227(SC); Ude v Chimbo (1998) 9-10 S.C. 97, (1998) LPELR-3288(SC). Where title is not established acts of possession need not be considered as they would not amount to acts of ownership or possession but to of trespass; Okhuarobo v Aigbe (2002) 3 S.C. (PT 1) 141 (2002) LPELR- 2449(SC).

Where a party relies on evidence of tradition in proof of title to land, he is bound to plead and establish facts such as: who founded the land; how he founded the land; and the particular of the intervening owners through whom he claims, See Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Ngene v. Igbo (2000) 4 NWLR (PT 651) 131, (2000) LPELR-1987(SC). He must give satisfactory evidence as how he derived the particular title pleaded and

50

claimed. Where he fails to establish his root of title, any acts of ownership or possession shall not avail him. Rather, such acts of ownership or of possession cannot be adjudged to be legal.
The Appellants, who relied on traditional evidence, failed to plead essential particulars, and therefore failed to prove title to the land in issue. It is trite that once the plaintiff is unable to prove his root of title, the consequence is that his case stands dismissed; Ayanwale v Odusami (2011) LPELR-8143 (SC), Nnadozie v Mhagwu (2008) 1 SC (PT 11) 43; Owhonda v Ekpechi (2003) 9 – 10 SC 1. The Appellants’ case was therefore rightly dismissed by the trial Court. On the other hand, the Respondent, by his pleadings and evidence presented a more credible account of the traditional history. The Respondent’s account was therefore rightly preferred by the trial Court.

I see no merit in the appeal. It is also dismissed by me. I abide by the orders made in the lead Judgment, including the order to costs.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment delivered by my learned brother, Sankey, JCA. I agree with the reasoning and conclusion contained therein.

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The appellants, as plaintiffs at the trial Court, claimed, inter alia, for a declaration that the 1st appellant is the rightful owner of the land in dispute. The respondent as defendant, counter – claimed for a declaration of ownership of the same land. The burden was thus on the 1st appellant to prove a better title to the land. The 1st appellant failed to do so as his pleading fell short of the standard required by the law to establish title to land by traditional evidence. Where a party relies on traditional evidence to establish title to land, he is required to plead and prove:
(i) Who founded land;
(ii) How he founded the land; and
(iii) The particulars of intervening owners through whom he bases his claim. See Dimkpa V Chioma (2020) (1200) 482, 498, Salisu V Moholaii (2016) 15 NWLR (Pt. 1535) 242, 273 & 278 and Sogunro V Yeku (2017) 9 NWLR (pt. 1570) 290, 316.
All the requirements above are cumulative and must both be pleaded and proved in evidence. The pleadings of the appellants were completely silent on who founded the land and how he founded the land. Evidence led in that regard went to no issue. See NIIC Ltd V Thompson Organization Ltd ?

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(1969) NMLR 99 and Sogunro V Yeku supra. The case of the appellants? therefore suffered a still birth because of the fatal deficiency in their pleading. The trial Court therefore rightly dismissed their case.

On the other hand, the respondent pleaded and led evidence as to who founded the land, how he founded the land and the particulars of intervening through whom he claims. His case in this respect was unchallenged as there was no competing traditional evidence strictly so called on the part of the appellants to counteract or challenge that of the respondent. The need to apply the rule in Kojo Il V Bonsie (1957) 1 WLR 1223 did not therefore arise. The rule is that where traditional evidence preferred by the parties is inconclusive, the Court is to look into facts in recent times given by the parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed, but that since the two are competing, a Court cannot prefer one to another. It is rather enjoined to look out for further facts in recent times to see which of the traditional

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histories is more probable. See Matanmi V Dada (2013) 7 NWLR (Pt. 1353) 319, 334 and 347.
Therefore the rule does not apply where, as in this instance, the traditional history of one of the parties is fundamentally defective, as for example where one of the ingredients of traditional history is missing, while that of the other party is complete, unchallenged and credible.

The conclusion of the trial Court can not in view of the foregoing be faulted.
On account of the above and the more detailed reasoning contained in the lead judgment, I find no merit in this appeal. It is also dismissed by me.
I abide by the Order as to costs contained in the lead judgment.

 

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Appearances:

S. E. Gbaji, Esq. holding the brief of John Abah Augustine, Esq.For Appellant(s)

A. Na-Allah, Esq.For Respondent(s)

 

Appearances

S. E. Gbaji, Esq. holding the brief of John Abah Augustine, Esq.For Appellant

 

AND

A. Na-Allah, Esq.For Respondent