SHUAIBU AKU v. ABDULLAHI OSIKI OSASYE (2019)

SHUAIBU AKU v. ABDULLAHI OSIKI OSASYE

(2019)LCN/13656(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of July, 2019

CA/MK/85/2014

RATIO

LAND LAW: DECLARATION OF TITLE TO LAND: ANYONE CLAIMING DECLARATION OF TITLE TO LAND MUST PROVE BY EVIDENCE THAT HE IS ENTILED
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653.

LAND LAW: 5 METHODS OF PROVING TITLE TO LAND

Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of 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 also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(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 Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant?s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. PER ONYEKACHI AJA OTISI, J.C.A.

LAND LAW: PLAINTIFF MUST RELY ON THE STRENGHT OF HIS CASE AND NOT WEAKNESS OF THE DEFENCE

In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233 (SC). The party that is able to prove title to land in issue is deserving of judgment. PER ONYEKACHI AJA OTISI, J.C.A.

LAND LAW: TRADITIONAL HISTORY OF PROOF OG TITLE OT LAND: FACTS THAT SHOULD BE PLEADED

The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme(2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. PER ONYEKACHI AJA OTISI, J.C.A.

LAND LAW: WHEN A PARTY PLEADS AND TRACES HIS ROOT OF TITLE TO A PARTICULAR PERSON, WHAT MUST HE PROVE

Once a party pleads and traces his root of title to a particular person, he must establish how that person came to have title invested on him. He must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged; Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC); Osafile v Odi (1994) LPELR-2784(SC); Ngene v Igbo (supra). PER ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE: EFFECT CONTRADICTIONS IN THE EVIDENCE OF WITNESSES

The principle is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses: Nwokoro & Ors v. Onuma & Anor (1999) LPELR-2126(SC); Taiwo & Ors v. Ogundele & Ors (2012) LPELR-7803(SC). I see no contradictions in the evidence of the Respondent that were major enough to cast serious doubts on the veracity of his case. PER ONYEKACHI AJA OTISI, J.C.A.

LAND LAW: CUSTOMARY TENANCY: MAIN FEATURE

Judicial pronouncements have established that the main feature of a customary tenancy is the payment of tribute to the overlord, which entitles the customary tenant to enjoy his holding in perpetuity, subject to good behaviour. There can also be a customary tenancy without the payment of tributes but this must be proved by evidence. The recognition of the rights of the overlord is paramount in a customary tenancy as non recognition of the overlord could lead to forfeiture; Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463(SC); Salami & Anor v. Lawal (2008) LPELR-2980 (SC). A loan of land or the borrowing of land also implies that the person who loans land is the overlord of the borrower;Galadima v Kuku (2018) LPELR-43886(CA). PER ONYEKACHI AJA OTISI, J.C.A.

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

SHUAIBU AKU
(For and on behalf of Aku Family of Tudun Adabu) Appellant(s)

AND

ABDULLAHI OSIKI OSASYE
(For and on behalf of Omeri family of Odobu) Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the judgment of the High Court of Justice, Nasarawa State sitting in its appellate jurisdiction, delivered on November 1, 2013 in Appeal No: NSD/LF2A/2011 in which the decision of the Upper Area Court, Keana, Nasarawa State delivered in favour of the Respondent herein, was affirmed.

In issue in this appeal is a parcel of land situate at backyard of Odobu where the original but now deceased plaintiff was the village head. The Appellant, who was the defendant in the trial Court, and members of Aku family are residents of Tudun Adabu (Odobu) settlement under the village area of Odobu. The Respondent as plaintiff before the trial Upper Area Court, Keana, sought to recover the disputed land which they alleged was granted to the Appellant?s deceased father to farm on a temporary basis. The trial Upper Area Court, Keana heard the matter and gave its decision in favour of the Respondent. The Appellant was dissatisfied with the decision of the trial Court and appealed against the decision to the High Court of Justice, Nasarawa State,

Appellate Division. The appeal was dismissed by the said High Court (the lower Court) and the decision of the trial Court was affirmed. Still dissatisfied with the decision of the lower Court, the Appellant further appealed to this Court by Notice of Appeal filed on 27/1/2014, pages 219-226 of the Record of Appeal. An Amended Notice of Appeal was filed on 26/6/2018 but deemed properly filed and served on 6/11/2018 on twelve grounds of appeal.

The parties filed Briefs of Argument. The Amended Appellant?s Brief was filed on 26/6/2018 but deemed properly filed and served on 6/11/2018. The Respondent?s Brief was filed on 3/12/2018. The Appellant?s Reply Brief was filed on 19/12/2018 but deemed properly filed and served on 14/5/2019. At the hearing of this appeal on 14/5/2019, the respective Briefs of Argument were adopted by Dr. M.E. Ediru for the Appellant and by I.D. Atanyi, Esq., holding the brief of Y.A. Hassan, Esq., for the Respondent. Dr. Ediru urged the Court to allow the appeal while Mr. Atanyi urged the Court to dismiss the appeal and affirm the decision of the lower Court.

The Appellant formulated three issues for

determination of this appeal, as follows:
1. Whether the Lower Court was not wrong when it affirmed the trial Court’s declaration of title to the respondent who did not prove his root of title as required by the law. (Distilled from grounds 1 & 10).
2. Whether the Lower Court was not wrong in affirming the decision of the trial Court declaring title to the respondent without properly evaluating and considering the evidence of the parties on record. (Distilled from grounds 2, 3, 7 & 9)
3. Whether the Lower Court was not wrong when in affirming the decision of the trial Court it appropriated the alleged loan transaction of the disputed land to the respondent as an act of ownership. (Distilled from grounds 4, 5, 6 & 8).

For the Respondent, the following issues were distilled:
(i) Whether having regard to the evidence on record, the Plaintiff/Respondent had prove (sic) his case before the trial Court to be entitled to the judgment being affirmed by the lower Court? (Distilled from grounds 1 and 10 of the notice of Appeal)
(ii) Whether having regard to the evidence on record, the learned justices of the lower Court properly

reviewed and evaluated the evidence of the parties before arriving at their decision affirming the decision of the trial Court? (Distilled from grounds 2, 3, 7 and 9 of the notice of Appeal)
(ii) Whether having regard to the evidence on record, the learned justices of the lower Court were right to have affirmed the decision of the trial Court which is to the effect that the Appellant’s father was given the land by the Respondent’s family on temporary basis. Grounds 4, 5 and 8.

The Appellant distilled no issues for determination from grounds 6, 11 and 12 of the grounds of appeal. These grounds are therefore struck out being abandoned. The Issues distilled for determination by the parties seek similar determinations. Being interrelated, it is expedient to consider the issues together. I therefore adopt the issues as distilled by the Appellant and shall consider the issues together.

?Arguments
It was submitted for the Appellant that a party relying on traditional evidence as a mode of proof of his root of title has to call credible and consistent witnesses to establish the root with credible and consistent evidence on the following

facts:
a. who founded the land;
b. in what manner the land was founded; and
c. the particulars of intervening owners from whom he claims

The decisions relied on included Ezekiel Ezinwa & Anor v Emmanuel Agu (2004) 3 NWLR (Pt. 861) 431 at 449; Odi v lyala (2004) 8 NWLR (Pt. 875) 283. It was argued that the Respondent had failed to prove who founded the land in dispute with credible and consistent evidence. Rather, that the evidence of the Respondent and his witnesses were full of material contradictions and discrepancies. Where there are material contradictions and discrepancies in the evidence of witnesses called by a party to prove his case the Court is not obliged to pick and choose which of them to believe, rather, the Court must reject the evidence of such witnesses and the case of the party must fail, citing Adum v Osunde (2003) 16 NWLR (Pt. 847) 643; Mogaji v Cadbury (Nit) Ltd (1985) 2 NWLR (Pt. 7) 393; Amefule & Anor v Nmecha & Ors (2013) LPELR-20632 (CA). The Court was urged to note the contradictions and discrepancies in the evidence of the Respondent?s witnesses on traditional history and dismiss his

case. Reliance was placed on the case of Ohiaeri v Akabeze (1992) 2 NWLR (Pt. 221) 1 at 19. It was argued that having found that the evidence of the Respondent and his witnesses was direct evidence, the lower Court ought to have allowed the Appellant’s appeal, since traditional history is usually centuries old and incapable of proof by direct evidence. Reliance was placed on Thanni v Saibu (1977) 2 SC 89; Ikpang v Edoho (1978) 6-7 SC 221; Lebile v. Regd Trustees of Cherubim and Seraphim Church of Zion of Nigeria, Ugbonla (2003) 2 NWLR (Pt. 804) 399 at 407. The lower Court however relied on this direct evidence in affirming the decision of the trial Court. It was argued that since the evidence of the Respondent and his witnesses was direct evidence, their credibility became an issue, more so as there were contradictions in their evidence.

It was further submitted that in the circumstance only the trial Court and not the lower Court was in position to evaluate and ascribe probative value to the pieces of evidence put forward by the Respondent to prove his root of title; citing Bashaya v State (1998) 5 NWLR (Pt. 550) 351 SC. That the lower Court erred

in law when it assumed the position of the trial Court to evaluate and ascribe probable value to the evidence of the prosecution witnesses on the root of title. It was submitted that the findings of the lower Court on the root of title of the disputed land were perverse as it ignored the evidence of the Appellant on his traditional history. The case of Anekwe v Nweke (2014) 34 WRN 30 at 57, was that relied on to submit that where a Court ignores facts or evidence in making a finding, such finding is perverse. A perverse finding does not qualify as concurrent finding of facts but is an exception to the principle of concurrent findings, relying on Mogo Chinwendu v Nwanegbo Mbamali (1980) 3 SC. 31; Nwagwu & Anor v Okonkwo & Ors (1987) LPELR 2094 (SC). It was argued that once the lower Court disagreed with the findings and conclusion of the trial Court on the nature of the evidence on record to prove the root of title, it ought to have allowed the appeal.

The Appellant contended that in evaluating the evidence on record the lower Court failed to apply the established test for evaluation of evidence, citing GEO Memorial Medical Centre v N.D.E (2013)

35 WRN 110 at 136; Mogaji v Odofin (1978) 3-4 SC 65. The findings of the lower Court were primary findings of facts which are based on the credibility of the witnesses whom the lower Court had no privilege of seeing, hearing or observing their demeanour as witnesses. The lower Court being an appellate Court ought not to have made such findings, resulting in miscarriage of justice. The decisions in VAB Petroleum Inc v Momah (2013) 50 WRN 1 at 29-30; Anyanwu v Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 at 465 were cited and relied on. It was further argued that the lower Court had refused to place weight on the evidence of the Appellant and his witnesses on his traditional history but only did with respect to the evidence of the Respondent and his witnesses which were full of material contradictions and lacked credibility and probative value or weight, leading to perverse findings.
?
The lower Court had affirmed the decision of the trial Court that the alleged loan transaction of the disputed land to the Appellant?s father was an act of ownership by the Respondent and the land therefore belonged to him. It was argued that this resort to the alleged loan

transaction when the Respondent had failed to prove title was wrong; citing the case of Oyadare v Keji (2005) 7 NWLR (Pt. 925) 571. Once this Court resolves the issue of proof of root of title to the disputed land through traditional history in favour of the Appellant then there would be no basis on which to found acts of ownership like the alleged loan. It was further argued that the alleged loan transaction was not proved. There was no witness to the alleged loan transaction. The trial Court branded the evidence of the Respondent thereon as hearsay evidence admissible under Section 45 (now Section 46 of the Evidence Act, 2011. It was submitted that oral evidence of family tradition admissible under Section 45 (now Section 46) relates to evidence of who founded the land, how he founded it and particulars of intervening owners. It cannot be relied on to prove a loan of land. A loan is not a family tradition that can be proved by traditional history. To rely on the evidence of PW2 who did not witness the loan to make a finding was perverse and it occasioned miscarriage of justice. Although both the trial Court and the lower Court had made concurrent findings

that the Respondent proved his title, the Court was urged to hold that perverse findings cannot sustain a judgment. Reliance was placed on Jolayemi v Olaoye (2004) 12 NWLR (Pt. 887) 322 at 344.

It was also submitted that a finding that is against the trend of evidence or that is based on evidence that in law is inadmissible is an exception to the concurrent finding principle; citing the case of Arum v Nwobodo (2013) 10 NWLR (Pt. 1362) 374 at 402. The lower Court having disagreed with the nature of the evidence and application of S. 45 (now S. 46) of the Evidence Act, 2011, ought to have held the finding of the trial Court were perverse and occasioned a miscarriage of justice. The finding of the Lower Court that the Respondent proved the loan transaction was not a concurrent finding. The Court was urged to disturb the findings of the lower Court and hold that the Respondent did not prove the loan transaction and allow the appeal on this point.
?
It was further argued that the lower Court did not follow the procedure for the appropriation of acts of ownership or possession in recent memory to a party who sets out to prove his root of title by

traditional history and at the same time alleging acts of ownership or possession as in the instant case. Both parties herein had relied on traditional history. Relying on Agbetu &. Anor v Akinboyo & Anor (2012) LPELR – 9749 (CA); Elewuju & Anor v Onisaodu & Anor (1999) LPELR 6566 (CA) it was submitted that where the parties present conflicting evidence of traditional history, which the Court cannot resolve, the title may be established by evidence of numerous acts of possession and ownership or acts in recent memory. The lower Court, before considering and appropriating the loan transaction to the Respondent as an act of ownership or possession ought to have made a specific finding showing which of the traditional histories, that of the Appellant or Respondent, it had accepted. It was further contended that the appropriation of the loan transaction to the Respondent by the trial Court and the lower Court rendered the reliefs sought by the Respondent in this case not grantable. A plaintiff who seeks a declaration of title to land coupled with an injunction, must prove exclusive possession; citing cases including Igwegbe v Ezuma (1999) NWLR (Pt.

606) 228 at 230. There was no evidence on record to show that the land had been reclaimed. If there was a loan of the land granted by the Respondent?s father, then the Respondent did not have exclusive possession of the disputed land. He was not entitled to the reliefs sought. The Court was urged to resolve the issues in favour of the Appellant and allow the appeal.
?
For the Respondent, a plethora of decisions were relied to submit that the Respondent had pleaded and proved title to the disputed land in accordance with judicially established method of traditional history. The Respondent also gave evidence to establish acts of ownership on the land such as selling, leasing or renting out all or the part of the land or farming on it or in a portion of it. The Respondent gave unchallenged evidence on how he leased the land to respective people and also how part of the land was given to the government to build a hospital. It was submitted that the evidence of traditional history coupled with the additional evidence of leases proffered by the Respondent, was not at all challenged or debunked by the Appellant. Such evidence amounted to an admission on

which the Court could act, relying on Okoebor v. Police Council (2003)5 SCNJ 52 at 66. Evidence which is not challenged or contradicted under cross-examination and which evidence is credible remains good evidence upon which the Court is enjoined to accept and act. Reliance was placed on Military Governor of Lagos State & Ors v. Adebayo Adeyiga & Ors (2012)2 SCNJ (PT. 1) 1 at 38, inter alia. In the light of the evidence adduced by the Respondent and with the position of the law, regarding traditional evidence, it was submitted that the Respondent proved before the trial Court one of the methods of establishing title to land.

It was further submitted that there were no contradictions in the evidence of the Respondent. Assuming without conceding that there were contradictions or discrepancies in the evidence of the Respondent, it was submitted that it would only be enough to warrant a reversal of the decision of the lower Court when the contradictions or discrepancies affect the live issues. It was argued that traditional evidence by its nature cannot be devoid of contradictions or discrepancies. The Court would consider in assessing traditional

evidence the quality of the evidence given by the parties. The appellate Court would only interfere with the judgment of the lower Court on the ground of contradictions, or discrepancies when such situations are material to live issues in the matter. Reliance was placed on Alfred Usiobaifo & Or v. Christopher Usiobaifo & Ors (2005)1 SCNJ 227 at 238. The Court was urged to discountenance the contention of the Appellant in this regard.

On the contention that the lower Court was wrong to have affirmed the decision of the trial Court having found that the evidence of the Respondent and his witnesses as direct evidence, it was submitted, assuming without conceding that the lower Court erred on that findings, that it was not enough to warrant the appellate Court to reverse the decision of the lower Court unless or except where such findings has occasioned a miscarriage of justice, citing cases including: Newman Olodo & Ors v. Chief Burton M. Josiah & Ors (2010)12 SCNJ (PT.2) 386 at 397. No miscarriage of justice has been occasioned by the error, if any, of the lower Court on the findings on the direct evidence to warrant a reversal of Judgment.

On the complaint that the evidence of witnesses was not properly evaluated, the Respondent summarized the evidence adduced by witnesses of both parties and submitted that the Respondent projected traditional evidence with additional method. The Appellant attempted to project the same methods but the evidence of the Appellant and his witnesses were inconsistent. Where a party gives inconsistent and contradictory evidence on material facts, such evidence on the point would be regarded as unreliable and be rejected, citing Unipetrol Nigeria Plc v. Aderije West Africa Ltd (2005)14 NWLR (PT. 946) 563 at 607. The Appellant had also attempted to project the third criteria for establishing title to land being acts of ownership. The Appellant and his witnesses in evidence gave different names of persons that their father allegedly leased the land to for the purpose of farming but failed to call one single lessee to give evidence to substantiate this assertion. During the visit to the locus-in-quo by the Court, no one was seen on the land. The Appellant failed to lead satisfactory evidence in support of his claim to establish title to land. The Court was

urged to discountenance his contentions to the contrary. There was no perverse finding by the lower Court and no miscarriage of justice or misapplication of the law was established.

The Respondent also referred to the evidence adduced to submit that the loan transaction was established. The evidence demonstrated that the Respondent gave the disputed land to the Appellant’s father on the condition that it will revert to them whenever they are in need. This evidence was never controverted or discredited by the Appellant under cross-examination. On the argument that the Respondent was not in exclusive possession, the case of Dere v. Ebwa (2006)1 SCNJ 160 at 211 was relied on, where the Supreme held thus:
“Mere possession of land by customary tenant however long cannot mature to confer right envisaged in the Act”.

It was argued that the Appellant was not in exclusive possession of the land. From the evidence before the trial Court, both the Appellant and the Respondent claimed to be in possession of the land in dispute. The decisions in John Ogbu v. Best Wokoma (2005)7 SCNJ 299 at 315; Chief S.O. Awoyoolu v. Sufianu Yusuf Aro (2006)2 SCNJ 44 at 58

were also cited and relied on. It was submitted that from the available evidence before the lower Court, the Respondent established a conclusive traditional account notwithstanding the possession claimed by the Appellant and hence proved a better title. The Court was urged to discountenance the submissions of the Appellant on this issue and resolve same in favour of the Respondent.

In the Reply Brief, the Appellant submitted, inter alia, that the parties had given parallel and competing accounts of traditional history. It was therefore not correct to submit that the Respondent?s account was unchallenged.

Resolution
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of

Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of 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 also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(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 Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant?s claim for declaration of title to land; Onwugbufor v. Okoye

(1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233 (SC). The party that is able to prove title to land in issue is deserving of judgment.

(2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. Once a party pleads and traces his root of title to a particular person, he must establish how that person came to have title invested on him. He must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged; Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC); Osafile v Odi (1994) LPELR-2784(SC); Ngene v Igbo (supra).

The Respondent, who as plaintiff had the burden to prove his case, relied on traditional evidence. The Appellant has contended that the evidence for the Respondent on traditional evidence was contradictory, drawing the attention of the Court mainly to the evidence of PW1. The evidence adduced by the Respondent must therefore be examined.

The witnesses for the Respondent all testified that the land in issue is located at Odobu. PW2 testified on the origin of Odobu. He said, page 12

of the Record of Appeal:
?The founder of Odobu was Iyima, followed by Ogah, then Onuku, then Omeri. They are all by Alago. Odobu is Alago settlement

Both PW2 and PW4 testified that the land in dispute was founded by Omeri, who also deforested it. Omeri was the father of PW4. Under cross examination, PW2 said he witnessed when the land was deforested. Omeri and family farmed on the land upon deforesting it. Omeri?s children inherited the land upon his demise. Ayakweyi was also Omeri?s son but older than the Respondent. Their evidence on this issue was not discredited under cross examination.
?
PW1, Amina Samuel, contrary to the contentions of the Appellant?s Counsel, did not testify regarding the founding of the land in issue. She gave no evidence on its traditional history. Rather, her testimony was on how she came on the land, and who let her in possession of a portion of the land, which is a different issue. In evidence in chief, PW1 said she was let into the land for farming purposes by her uncle by name Mallam, who had been farming on the same land. She further said, page 10 of the Record of Appeal:<br< p=””

</br<

?it was when he was leaving to Akwanga that the portion of the land was given to me. I am still farming in the land?My uncle told me how he got the land from one Alkali, he gave us the history that it was one Alkali and on condition that when the owner comes back same be return(sic) to him. He told me how Alkali got the land that the land before(sic) to Alago (tribe) from Odubo. The plaintiff is from Odubo, He is the chief of Odobo.
While I was farming on the land, we got a letter to vacate the land. It was Elashiku is(sic) from Odubo, Alago by tribe. When I got the letter we went waiting for them to come and collect their land. If they come I will give them their land because it belong(sic) to them?The defendant is Eggon by tribe he lives at Tundun Odubo. I heard that they came from Nasarawa Eggon. Tundun Adabu is under Odobu (the defendant)?
?
Under cross examination, PW1 said she had been farming on the land for over ten years. She also said that the father?s name of Elashiku was Omeri. Her evidence merely demonstrated acts of ownership exercised over the land in dispute by the Respondent, which by itself does not

prove title to the land.

Attesting to acts of ownership exercised by the Respondent over the disputed land, PW2, Obala Angulu, testified that the disputed land was initially given to Alkali ?pay-master?, who was also a judge at Deddere, to farm by Ayakweyi, Omeri?s son. When Alkali ?pay-master? was transferred, he returned the land to Ayakweyi who later gave the land to his friend, Aku, the Appellant’s father, to farm, on temporary basis. PW2, who described himself as a member of one of the ruling houses in Odobu that once contested for the stool of Odobu and who was at the time the fourth in command in the village, went further to explain that Odobu is Alago settlement while Tundun Adabu was a Mada settlement. Omeri, the Respondent?s father, gave the Mada the land to settle. PW2 further testified, page 12 of the Record of Appeal:
?A stranger can have land in Adabu if the chief gives him. There are 2 strangers in Adabu in categories. The first are Tiv while the second set are Mada?Aku cannot inherit the property of Ayakweyi and vice versa.?
?
His evidence stood the test of cross

examination.

PW3, Alhaji Adamu Turaki, in evidence, page 15 of the Record of Appeal, gave details of as to how he accompanied his grandfather, Alkali ?paymaster? to meet some named persons of Alabo in respect of a dispute over the land given to him by the Respondent’s father when he was Area Court Judge in Deddere. There was a meeting later called in which Alkali informed the gathering of both the Respondent and the Appellant families that he was proceeding on transfer to Area Court Doma and:
?That he is not going to carry the farm for that he is leaving the people of Odobu Alago to look after the farm for him because it was their grandfather who gave him the farmland?That they should continue to look after the farm if he comes back he will continue farming but in the event he does not come back, that the Alago shall get back the farm. The Eggons people were in attendance. There was no response on their part.?

The trial Court noted that PW3 identified three Eggon persons who were present in the trial Court, as having been present at the meeting. Under cross examination, PW3 pointedly said the Appellant was

present at the meeting. His evidence was also not discredited under cross examination.

PW4, Osagye Omeri, was the original plaintiff, now deceased and substituted by the Respondent. His testimony in summary was that during the life time of his father, Omeri, his brother, Ayakweyi was approached by his friend, Aku, an Eggon-mada man by tribe, for farm land, since he was a stranger in the community. Aku, the Appellant’s father, was given the portion of land on which Alkali ?pay-master? had formerly farmed, on temporary basis, after which the land was to revert to the Respondent?s family. A portion of the land was also given by the Respondent?s father to the government for a hospital. Under cross examination, PW4 said there was a dispute with Eggon and his family in respect of the land. When matter was referred to ?paymaster?, he confirmed that he did not give any Eggon the land and explained that it was Ayakweyi gave who gave him the land. PW4 said he was present when Ayakweyi, his older brother, gave the land to the ?paymaster?. His evidence was also not discredited under cross

examination.

In my view, there was no contradiction on the traditional history presented by the Respondent. The evidence of PW1 flowed in line with the evidence given by other witnesses of the Respondent. It must be emphasized that the law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on any issue in contention. The principle is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses: Nwokoro & Ors v. Onuma & Anor (1999) LPELR-2126(SC); Taiwo & Ors v. Ogundele & Ors (2012) LPELR-7803(SC). I see no contradictions in the evidence of the Respondent that were major enough to cast serious doubts on the veracity of his case.

?The Appellant also relied on traditional evidence to prove his title to the land. DW1, Abdullahi Aku, the Appellant?s brother, said they inherited the land from their late father Aku Attah, who had deforested the land. DW1 said he was with his father when the land

was deforested. They thereafter began to farm on the land. After their father, Aku, died, they, his children inherited it. DW1 named persons who had been given portions of the land for farming as Ibrahim Obile, Otsa Alla, Saidu Oko, Ari Eggon Aya, Hassan Attah, Yahaya Madaki, Danbaki Attah, Saleh Madaki etc. Under cross examination, he admitted that the Eggon people initially settled at Odobu before moving to the hill. He also admitted the consent of Aren Eggon or Aren Alogani (the Chief) must be obtained before a stranger cultivates land in their domain. He admitted that it was during the reign of Omeri that his father Aku came into the land.

DW2 was Alh. Salihu Aku, senior brother of the Appellant. He testified that their late father Aku deforested the land in dispute after which they farmed on it. He further said that their father also gave portions of the land on loan to other persons for farming purposes. He named these persons to be Baba Hussani, Madaki Aku, Saidu Oko, Dnjuma Akpu Matti Luca. Under cross examination, DW2 said:
?Before my father came to Tundun Adabu there were people in Odubu already. Yes my father was

among the first settlers of Tundun Adabu.?

He also said that the land in dispute is at the backyard of Odubu.

DW3 was Alh. Aku. He similarly said the land was deforested by Aku. He named persons who were given farming portions therein as Ada Ogbole and Okwari. Under cross examination, he admitted that it was Alago people that first came to Odobu before the Eggon people came. He also admitted that late Omeri was custodian of both Odubu and Adabu. For him, it was possible for anyone to go to Nasarawa Eggon and deforest land without the consent of Aren Eggon.

DW4 was the Appellant. He gave similar testimony about the founding of the land by his late father Aku. He gave these names as persons who were given portions of land by his father to farm on, and that they are still there: Okoawi, Ibrahaim Ogbele/Ada Ogbele, Egga Aya, Mohammadu Gwamma. His older brothers also gave portions to the following persons: Yakubu Ogah, Salihu Ogah and Ladan Enna. Under cross examination he said:
?My father is the first settle (sic) of Tudun Adabu. My father was not the first ward head of Tundun Adabu?it is

not true that it was Odubu people that give Eggon people to reside at Tundun Adabu.?

Both the trial Court and the lower Court were unable to accept that the version of the Appellant weighed heavier on the scale of justice. I am inclined to tow the same path for reasons I shall give below.

In the first place, there is no doubt that the number of witnesses called by a party does not guarantee the success of the case, but the weight of evidence adduced by material and credible witnesses cannot be downplayed; Akano v. Ilorin Emirate Council & Ors (2000) LPELR-11972(CA). All the Appellant?s witnesses belong to virtually one family. All four of them named a total of about twenty different persons as the people who were given portions of the disputed land to farm on by their late father Aku and by other family members. Out of this teeming number, none was called as a witness to back up the claim. Such evidence from these persons would have been helpful. This was unlike the case of the Respondent where PW1 testified that the land belonged to the Respondent but traced how she came thereon to farm.
?
Secondly, while DW2 testified that his

father was among the first settlers on the land, DW4 described his late father as the first settler on the land. Yet, DW4 said that his father was not the first ward head of Tundun Wada. If his father, Aku, was indeed the first settler, it would be aberrant in our mores for another person who came on to the land after a first settler had been there to be made the ward head of the community above the first settler. DW2 and DW4 therefore contradicted themselves on this point. Further, it is interesting to note that under cross examination, DW1 admitted that the Eggon people initially settled at Odobu before moving to the hill. DW3 also admitted under cross examination that it was Alago people that first came to Odobu before his people, the Eggon people came on the land. While DW1 admitted that it was during the reign of Omeri that his father Aku came into the land, DW2 under cross examination said he could not say under whose reign his father came to Tundun Adabu.
?
The testimony for the Respondent was that a stranger to the community could not simply enter into any land to farm without the consent of the community Chief. Both of sets of strangers in Odobu,

the Tivs and the Eggon – Mada, including the Appellant?s family, were settled by Omeri, he gave them land. DW3 admitted under cross examination that late Omeri was custodian of both Odobu and Adabu. Although DW3 took the opposite position, DW1, under cross examination, admitted that the consent of the Chief must be obtained before a stranger cultivates land in their domain. These pieces of evidence are in tandem with the evidence for the Respondent. Indeed the witnesses for both the Appellant and the Respondent are at one as to the status of Omeri as having been a Chief in Odobu and with DW3 further admitting that Omeri was custodian of both Odobu and Adabu.

The Appellant argued that there was no evidence to ground a finding that there was a loan of the disputed land to Aku or a customary tenancy. The lower Court held, page 219 of the Record of Appeal:
“We want to add that land in our traditional societies were divided into family land community land or even stool land.
A stranger had to go through the family Head Community Head or the Chief to be given land. The concept of cleaning or deforesting a virgin land was

restricted to the member of that family community a chiefdom. A stranger had to ask before he was given a piece of land otherwise he would be treated as an intruder or a trespasser.
All these make it most probable that Aku the father of the defendant who is a stranger (a native foreigner) must have been given the land by Ayikweyi an Alago man and a member of the Odabu family. We therefore accept the story of the plaintiff witness (PW2) and hold that on this issue (of possession) the plaintiff/respondent evidence is more acceptable than that of the appellant/defendant”.

LPELR-2980 (SC). A loan of land or the borrowing of land also implies that the person who loans land is the overlord of the borrower;Galadima v Kuku (2018) LPELR-43886(CA). Black?s Law Dictionary, Ninth Edition at page 1019 defines a loan as a grant of something for temporary use. A loaned item is not a gift. A loan may have conditions attached to it or it may be simply informal. There must be clear evidence of the loan.
?
In resolving how to classify the land said to have been given to Aku by Ayakweyi, the evidence for the Respondent is enlightening. The consistent evidence for the Respondent was that the Aku got the land on an informal and temporary basis on account of his friendship with Ayakweyi, who was Omeri?s son, Aku being a stranger in the land. Under cross examination, PW4 said, page 37 of the Record of Appeal:
?I do not know if a land given to some body there must be something given as Kola. It was Ayakweyi that gave to paymaster. So I so(sic) not know if a Kola most(sic) be given. I was there when Ayakweyi gave the land to paymaster?It was Ayakweyi that gave Aku the land. The land belongs to our father in which

Ayakweyi gave to Aku as our elder brother?We were the ones that deforested the land so I was farming on the land before Aku.?

There was thus no evidence that any kola was paid for the land given to Aku or that the land was held as a formal loan or under any form of customary tenancy. Although it is not in evidence that there were any conditions attached to the loan, it was not an outright gift. What can be gleaned from the evidence for the Respondent was that all that was loaned or handed over to Aku was temporary possession of the disputed land for farming purposes. Contrary to the postulations of the Appellant?s Counsel, no customary tenancy created, in which case there would have to be conditions to ground the veracity of the claim; Archibong & Ors v. Ita & Ors (2004) LPELR-535 (SC). The unwavering evidence for the Respondent was that it was an informal and temporary grant of the land by Ayakweyi, with the consent of Omeri, to his friend Aku for farming purposes, Aku being a stranger in the land. The uncontroverted evidence was that the same disputed land had earlier also been loaned on a temporary basis to Alkali

?paymaster? for farming purposes, when he was an Area Court Judge in Deddere. When the said Alkali was transferred out of the area, he handed back the said land to the Respondent?s family through Ayakweyi, who extended the same courtesy to Aku, then also a stranger in the community. If as was admitted by the Appellant?s witnesses, DW1 and DW3, under cross examination, that it was Alago people that first came to Odobu before the Eggon people came on the land; that Omeri was custodian of both Odobu and Adabu; and that a stranger cannot come into a land to farm in the community without the consent of the Chief (of Odobu), it follows that the Appellant?s father, Aku, who came on to the land after the Respondent?s family, could only have farmed on the land in issue with their consent. By the informal and temporal loan of the land made to him, Aku could not have acquired ownership so as to divest the radical owner (the Respondent) of his title thereto. Further, the informal and temporary grant of the land was made to Aku personally. Therefore, the disputed land could not have become the subject matter of inheritance for

Aku?s children, including the Appellant. I would emphasize that Alkali ?paymaster?, who held the same land earlier for the same farming purpose, relinquished it and returned the land to the Respondent?s family through Ayakweyi, when he relocated out of Odobu.

It is settled law, as already noted above, that a plaintiff seeking title to land must rely on the strength of his case and not on the weakness of the defence, except that where the case of the defence supports his claims, the plaintiff may quite perfectly take advantage of those facts; Buraimoh v. Bamgbose (supra); Oduaran v. Asarah (supra). Therefore the admissions made by the Appellant?s witnesses under cross examination can enure in favour of the Respondent.

As already demonstrated above, I find that the evidence for the Appellant was largely inconsistent. When a party?s evidence on material facts is inconsistent or contradictory, it would cast serious doubt on the veracity of the party?s case and the Court would be justified to disbelieve the party. This is simply because the Court cannot pick and choose which piece of inconsistent evidence to

believe and give effect to; Ige v Akoju (1994) LPELR-1451(SC), (1994) 4 SCNJ 288; Akpan v Otong (1996) 10 NWLR (PT 476) 108; Nwokoro v Onuma (1999) 9 S.C. 59; Usiobaifo v Usiobaifo (supra), (2005) 1 S.C. (PT 11) 60; Igabele v The State (2006) LPELR-1441 (SC); Taiwo v Ogundele (2012) LPELR-7803 (SC). What amounts to contradiction in evidence was restated by the Supreme Court, per Augie, JSC in Zakirai v Muhammad (2017) LPELR-42349 (SC) at pages 70 ? 71 of the E-Report in this manner:
?A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts. Put another way, evidence contradicts evidence, when it says the opposite of what the other evidence says, not just on any point but on a material point.?

It is primarily the duty of the trial Court to appraise and evaluate evidence given at the trial. An appellate Court may not disturb such evidence merely because it would have arrived at a different conclusion on the same facts, though the appellate Court is entitled to interfere when it is satisfied that the decision reached by the trial Court was wrong; Atuyeye & Ors v. Ashamu

(1987) LPELR-638(SC); Adeleke & Ors v. Iyanda & Ors (2001) LPELR-114(SC). In this instance, there are two concurrent findings of fact of the lower Courts. Ordinary, this Court would not disturb concurrent finding fact made by the trial Court and by the lower Court unless a substantial error apparent on the face of the record of proceedings is shown, such as when such Counsel findings have been made on legally inadmissible evidence, or are perverse, or are not based on any evidence before the Court; Sule & Ors v. Orisajimi (2019) LPELR-47039(SC); Fidelity Bank v. The M.T. Tabora ors (2018) LPELR-44504(SC). In my considered view however, there were no perverse findings made by the lower Courts and no substantial error apparent on the face of the record of proceedings has been shown. The Respondent by evidence established his root of title by traditional history and acts of ownership on the disputed land exercised by his family; and, his evidence withstood cross examination. I therefore see no reason to disturb the concurrent findings of both the trial Court and the lower Court.

?This appeal is without merit. It accordingly

fails and is hereby dismissed. The judgment of the lower Court in Appeal No: NSD/LF2N2011 in which the decision of the Upper Area Court, Keana, Nasarawa State in Suit No: UACK/CV27/2007 was affirmed, is hereby affirmed.
The Respondent is entitled to costs, which is hereby assessed at N100,000.00.

JUMMAI HANNATU SANKEY, J.C.A.: My learned brother, Onyekachi A. Otisi, J.C.A., obliged me a draft of the lead Judgment just delivered which has comprehensively addressed all the issues arising in the Appeal. I agree with the reasoning leading to the conclusion dismissing the Appeal.

Accordingly, I also dismiss the Appeal and abide by the consequential Orders made therein, including the Order as to costs.

JOSEPH EYO EKANEM, J.C.A.: I have had the privilege of reading before now the judgment which has just been delivered by my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein.
?
For the reasons ably articulated in the lead judgment which I adopt as mine, this appeal ought to be and is dismissed by me. I abide by the

consequential orders in the lead judgment.

Appearances:

Dr. M.E. EdiruFor Appellant(s)

I.D. Atanyi, Esq. holding the brief of Y.A. Hassan, Esq.For Respondent(s)

Appearances

Dr. M.E. EdiruFor Appellant

AND

I.D. Atanyi, Esq. holding the brief of Y.A. Hassan, Esq.For Respondent

LawCare Nigeria

SHUAIBU AKU v. ABDULLAHI OSIKI OSASYE (2019)

general

YOU MAY HAVE MISSED

UNDERSTANDING CONTRACT LAW FOR BUSINESS TRANSACTIONS IN NIGERIA

Protecting Minority Shareholders in a Nigerian Company

Agency and Distribution Agreements in Nigeria: What You Need to Know

Franchising Your Business in Nigeria: Key Legal Considerations

general

Related Story

YOU MAY HAVE MISSED