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SHUAIBU & ANOR v. JAURO & ORS (2020)

SHUAIBU & ANOR v. JAURO & ORS

(2020)LCN/15554(CA)

In The Court of Appeal

(JOS JUDICIAL DIVISION)

On Wednesday, October 07, 2020

CA/J/471/2019

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

1. GARBA SHUAIBU 2. MUSA DOMA APPELANT(S)

And

1. HADIZA JAURO 2. HUSSAINI BAGIRE 3. ISIYAKA WAJE RESPONDENT(S)

RATIO:

PRINCIPLES GOVERNING THE GRANT OF DECLARATORY RELIEFS.

To start with, each of them had to show the Trial Court that he has an interest or right, which forms a foundation for the said relief.  This is because a declaration claimed must relate to some legal right or legal interest of which the law will take cognizance.  See Olawoyin Vs. A–G Northern Nigeria (1961) 2 SCNLR 5; International Textile Industries Nig. Ltd. Vs. Aderemi & Ors. (1999) 8 NWLR (Pt. 614) 268 SC.  The bottom line is that the grant of a declaratory relief is discretionary and it will only be granted when the Court is of the opinion that a party seeking such a relief is, when all facts are taken into consideration, fully entitled to the exercise of Court’s declaration – Odofin Vs. Ayoola (1984) 11 SC 72.
​Therefore, a plaintiff claiming a declaration of title to land must succeed on the strength of his case, and not on the weakness of the defence.  He must prove his ownership in the land claimed which is in dispute.  See Umar Vs. Geidam (2019) 1 NWLR (Pt. 1652) 29 at 32 and Makon Engr. & Tech Services Ltd. Vs. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 165 at 168. TANI YUSUF HASSAN, J.C.A. 

DUTY OF PLAINTIFF ON DECLARATION OF TITLE TO LAND

Therefore, a plaintiff claiming a declaration of title to land must succeed on the strength of his case, and not on the weakness of the defence.  He must prove his ownership in the land claimed which is in dispute.  See Umar Vs. Geidam (2019) 1 NWLR (Pt. 1652) 29 at 32 and Makon Engr. & Tech Services Ltd. Vs. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 165 at 168. TANI YUSUF HASSAN, J.C.A. 

DUTY OF PARTY WHO BASES HIS CLAIM FOR DECLARATION OF TITLE TO LAND ON INHERITANCE

Where a party bases his claim for declaration of title to land on inheritance, it is not enough for him to testify that he inherited the land in dispute, he must also adduce evidence of how the person from whom he inherited acquired the land. TANI YUSUF HASSAN, J.C.A. 

INSTANCE WHEN EVIDENCE OF A WITNESS SUPPORTS THE CASE OF THE OPPOSING PARTY

When evidence of a witness supports the case of the opposing party against whom he purports to give evidence, that opposing party can take advantage of the evidence to strengthen his case, as long as it is consistent with and corroborates his own case.  See N. B. N. Ltd. Vs. T. A. S. A. Ltd. (1996) 8 NWLR (Pt. 468) 511; Umar Vs. Geidam (2019) 1 NWLR (Pt. 1652) 29 at 33 and Makon Engr. & Tech Services Ltd. Vs. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 165 at 172. TANI YUSUF HASSAN, J.C.A. 

A GROUND OF APPEAL MUST ARISE FROM THE DECISION OF THE COURT. 

Without going into the submissions of counsel to the parties, this issue is an academic issue because it does not relate to and has no bearing to an issue decided in live litigation between the parties before the Trial Court.  A ground of appeal must arise from the decision of the Court.  The ratio decidendi of the Trial Court is the part of its judgment that answered and determined all questions in the Writ of Summons.  This, part contains the decision by that Court and the reasons for the decision.  See Abdullahi Vs. State (2013) 11 NWLR (Pt. 1366) 435 and Gov. Imo State Vs. Amuzie (2019)10 NWLR (Pt. 1680)331 at 338. TANI YUSUF HASSAN, J.C.A. 

 

 

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Bauchi State delivered on the 28th of June, 2019 in Suit No. BA/157/2017 by Hon. Justice A.M. Liman.

The appellants as plaintiffs at the Lower Court, by a writ of summons and statement of claim dated 20th June, 2017 instituted an action against the respondents, jointly and severally as follows:
a. A declaration that the land situate at Gauri Hamlet of Polchi village are in Dass Local Government Area, described by the following boundaries viz: bounded by the west with a big hill, from the southern part is bounded by the land of Sale Dodo, from the eastern part the land is bounded by the land of wanzam and from the northern part is the land of Adamu Gani belongs to the plaintiffs.
b. A declaration that the continued stay of the defendants and their privies on the land against the agreed period of December, 2016 was in breach of contract.
c. An order mandating the defendants and their privies to vacate the land forthwith.
​d. Damages for breach of contract and loss of opportunity to utilize the land for 2017 rainy season jointly and severally against the defendants in the sum of N1,000,000,00 (One Million naira) only, in favour of the plaintiffs.
e. Costs of this action in the sum of N500,000.00.

In response to the claim, the defendants/respondents filed a joint statement of defence and counter claim dated 20th July, 2017. The counter claim reads:
The 1st, 2nd and 3rd Defendants repeat paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 of their statement of defence and counter claim as follows:
A declaration that the defendants/counter claimants are the owners of the land in dispute situated at Gauri Hamlet of Polchi Village area in Dass Local Government Area described by the following boundaries viz: the land share boundary with Garba Na’ibi of Polchi from the north and Musa Makeri Gauri from the south which reached the river and from the western part is a hill or rock.
(a) Cost of this action in the sum of N500,000.00
(b) Whereof the defendants deny the entire reliefs sought by the plaintiffs and hereby urge this Honourable Court to dismiss the action as being frivolous, vexations and malicious.
The plaintiffs filed defence to the counter claim dated 2/8/2017.
The appellants’ case at the Court below was for a claim of a piece of land situate at Gauri Hamlet of Polchi Village area in Dass Local Government Area which they claimed to have inherited from their parent and by extension from the appellants’ ancestors who founded the land. That the respondents settled on the land for about three to four years before this action, and based their title on a gift by the Emir of Dass Bilyaminu Usman to one Abdullahi Jauro (Privy to the respondents) about forty-five (45) years back.

Trial commenced in the matter and at the conclusion of trial, judgment was entered in favour of the respondents as per their counter claim.

Dissatisfied with the judgment, the appellants appealed to this Court on four grounds of appeal with their particulars. The notice of appeal was dated and filed on the 27th of September, 2019.

The appellants’ brief dated the 21st day of November, 2019 was filed on the 2nd of December, 2019, settled by S.U Aliyu Esq. In it, the following issues are formulated for determination thus:
1. Whether the appellants have proved their case before the Trial Court as provided by the law” (Grd 1)
2. Whether the case of the Respondents before the Trial Court has shown more probable title to the land in dispute than that of the appellants” (Grds 3)
3. Whether the judgment of the Trial Court is supported by the evidence led in Court” (Grd 2)
4. Whether the statement of defence and counter claim of the respondents is a competent process in the eyes of law (Grd 4)

In adopting the brief, learned counsel for the appellants urged us to allow the appeal.

The respondents’ brief settled by Umar Hassan was dated and filed on the 23rd day of December, 2019. Three issues were identified therein for determination:
1. “Whether the Lower Court was right when it held that the Appellant did not prove their case before the Lower Court.”
2. Whether the respondents have proved their case before the Trial Court as provided by law.”
3. Whether the appellants can raise fresh issue on appeal which was not raised before the Lower Court.

​The issues formulated by the parties are similar but couched differently. I shall be guided by the appellants’ issues for determination of the appeal. The issue 1, 2, and 3 shall be taken together.

ISSUE ONE
“Whether the appellants have proved their case before the Trial Court as provided by the law”

The appellants’ counsel submitted on this issue that the appellants by their pleadings and evidence have shown the traditional history upon which they based their title to the land in dispute. He referred to Odunze & Ors. Vs. Nwosu & Ors. (2008) Vol. 157 LRCN 110 at 121 ratio 15 on the five ways of establishing title thus:
“(a) By traditional history of the land which include mode of acquisition of same by deforestation of the virgin forest by the first settler:
(b) By production of title documents to the land;
(c) Act of possession
(d) Act of selling, leasing of portion of land
(e) Proof of possession of the connected and adjacent land”

It is submitted that the appellants by traditional history have shown the first settler of the land they are claiming and how the land was founded by the appellants’ grandparents.

He relied on Mallam Wasiu Salawu Vs. Kwara Breweries Nig. Ltd. (2003) Vol. 112 SNJC 2147 at 2150 ratio 5.

Counsel argued that their evidence not been discredited or contradicted under cross-examination ought to have been acted upon by the Trial Judge to enter judgment for the appellants.  He referred to the evidence of PW1, PW2 and PW3 who testified as to who and how the land in dispute was founded and their evidence having not been challenged either by pleadings or under cross-examination, their evidence is deemed admitted, which the court is entitled to act on it. The Court was referred to Adewuyi Vs. Odukwe (2005) ALL FWLR (Part 278) 1100; Alhaji Raufu Gbadamosi Vs. Olaitan Dairo (2007) Vol. 145 P. 508-511 and Oludamola Vs. State (2010)8 NWLR (Pt.1197) 565 and urged the Court to resolve in favour of the appellant.

ISSUE TWO
“Whether the case of the Respondents before the Trial Court has shown more probable title to the land in dispute than that of the appellants.”

ISSUE THREE
“Whether the judgment of the Trial Court is supported by the evidence led in Court?”

​In arguing these issues jointly, learned counsel for the appellant referred to Godfrey Anukam Vs. Felix Anukam (2008) Vol. 159 P. 33 at 37 ratio 4, to submit that the law is settled, a party seeking declaration over title to land has to succeed on the strength of his/her own case and not on the weakness of the defence. Also referred is the case of Nwokorobia Vs. Desmond Nwogu & Ors. (2009)10 NWLR (Pt. 1150)553 at 560 ratio 11.

​The contention of the appellants is that the respondents having claimed that the land in dispute was given to their father or privy by the emir of Dass, Bilyaminu Usman, but the respondents did not state how the said Biluaminu owned the land and the claim of intervening ownership up to the respondents. That there was no mention of the land the respondents are claiming and how the founder founded the land which is fatal to the counter claim of the respondents. He referred to Iroagbara Vs. Ufomadu (2009)11 NWLR (Pt. 1153) 587 at 591 ratio 4 and urged us to so hold.

​It is also submitted on behalf of the appellants that the respondents’ case was full of material contradiction as regards the purported gift, in that the respondents witness admitted that Bilyaminu Usman was not on throne as Emir of Dass, not to talk of giving land in dispute to Abdullahi Jauro. Counsel referred to pages 54 and 59 on the evidence of the witnesses, wherein at page 59, the witness under cross-examination said it was the respondent’s privy Abdullahi Jauro who first cleared the land in dispute as against the claim of a gift alleged by the respondents. The Court is urged to discountenance the evidence that the land was founded by Abdullahi Jauro, same having not been pleaded by the respondents in their statement of defence.

Submitting further, that the description of the land given by DW2 contradicts the description of the disputed land as averred in the statement of defence. The Court was referred to page 54 of the record under cross-examination.

That the Trial Court’s reference to paragraphs 9, 10, and 11 of the respondents’ statement of defence that respondents have shown their root of title, learned counsel argued that there was no fact as to who and how the land was founded in paragraphs 9, 10 and 11 of the respondents statement of defence.

Also that the Trial Judge held that failure of the respondents to tender the pleaded proof of title issued by Emir of Dass to the respondents was not withholding evidence but abandonment is misconceived, as the law does not allow oral evidence to be led but for the document to be tendered in proof of the gift. He relied on Abubakar Vs. Waziri (2008) Vol. 160 LRCN 72 at 78 ratio 9. That the non-production of the document evidencing the gift, the respondents are caught by the provision of Section 167(d) of the Evidence Act, 2011.

Relying on the case of Udengwu Vs. Uzuegbu (2003) Vol. 110 LRCN 1701 at 703 ratio 3, it is submitted that the judgment of the Trial Court is perverse and we are urged to resolve the two issues in favour of the appellants.

ISSUE FOUR
“Whether the statement of defence and counter claim of the respondents is a competent process in the eyes of law.”

On this issue learned counsel for the appellants referred to the statement of defence and counter claim of the respondents signed by one Hassan Umar Esq., while the seal on the statement of defence and counter claim bears the name of Shipi Rabo, to submit that it is contrary to Section 9 of the Rules of Professional Conduct of Legal Practitioners, 2007. That the statement of defence and counter claim did not comply with the provision of Section 10 of the Rules of Professional Conduct for Legal Practitioners and the effect of that omission is as stated in Section 10(3) of the rules.

The Court is urged to expunge the statement of defence and counter claim filed by the respondents for being incompetent. The case of Ogli Oko Ltd. Vs. N.A.C.B (2008) Vol 34 (Pt. ii) NSCQLR 1057 was referred to, and we are urged to allow the appeal.

On the other hand, the respondents counsel relying on the case of Owoeye Vs. Oyinlola (2014) ALL FWLR (Pt. 721) 1458 at 1463 R. 5 submitted that the appellants are duty bound to prove their title by showing who founded the land in dispute, the names and particulars of successive owners through whom they claim. That the appellants have failed woefully in this proof.

Learned counsel for the respondents contended that the appellants were not originally the people of the area where the land in dispute is situated. The Court was referred to paragraph 7 of the witness statement on oath of PW1 and PW2 respectively. That all lands traditionally, particularly in rural area, between 40-50 years ago were under the Emirs, who have the authority to give land to their subjects either for farming or residence.

Referring to the evidence of DW1, DW2, DW3 and DW4, it is the contention of the counsel that the fathers of the appellants were not the people who founded the land in dispute. That the appellants have not been able to show how many years they have been in possession of the land in dispute while the respondents have been able to do that through their witnesses. He referred to the evidence of DW1 particularly paragraphs 5-10 which has not been challenged or disputed by the appellants. That the respondents adduced cogent evidence which altered the case of the appellants.  He referred to the evidence of Isiyaku Madaki (Babale) (DW3) in paragraphs 4-6 and 8 where the witness stated that the family of Abdullahi Jauro had been on the land in dispute for about 45 years without disturbance and nobody ever claimed the ownership of the land apart from Abdullahi Jauro and his family. That the evidence of this witness was not challenged or discredited under cross-examination.

​Submitting further, that Abdullahi Jauro the husband of the 1st respondent was the first person who founded the land in dispute having cleared same and built his house and established his family over the years. That it was the late Emir who gave late Abdullahi Jauro the land as a gift and which evidence was not disputed or discredited.

Counsel referred to the evidence of one Abdullahi Mahmood Dass (DW3) who confirmed the position of the respondents in this suit, and his evidence was not challenged or discredited. He said the evidence of DW1, DW2, DW3 and DW4 challenged the position of the appellants and their witnesses.

That the appellants failed to adduce cogent evidence to entitle them for the reliefs they sought. The Court was referred to Duro Waiye Vs. UBN Plc. (2015) ALL FWLR (Pt. 789)225 at 227-228.

Relying on the case of Lambe Vs. Aremu (2014) ALL FWLR (Pt. 729) 1075 R. I,  it is submitted that the appellants are duty bound to establish their claim on the strength of their case and not to rely on the weakness of the defence.

​It is submitted that the appellants’ parents migrated from the hill where they had their farm lands and started working at the adjacent of the disputed land without the approval of the Emir. That the onus is on the competing claimants for declaration of title to establish their root of title. We are urged to resolve in favour of the respondents.

On issue two, learned counsel for the respondent referred to Lambe Vs. Aremu (supra) at page 1075 R. 3 on ways of proving title to land, and submitted that the respondents/counter claimants have proved their case by preponderance of evidence to entitle them to a declaration of the land in dispute, through traditional evidence and long possession of the land. That the respondents proved their root of title through the evidence of DW1, DW2, DW3 and DW4 with no material contradiction and their evidence was not discredition under cross-examination.

Submitting further, that the respondents/counter claimants acquired the land through the late Emir of Dass and have exercised the act of possession and ownership of the disputed land for more than forty (40) years. That the act of possession by the respondents/counter claimants is numerous and positive to infer that the land belong to them and they have not been challenged all these years until the demise of the original owner, the husband of the 1st respondent/counter claimant.

That it is trite, a counter claim is a separate claim which must be proved and must be directly related to the principal claim. Counsel argued that the respondents/counter-claimants have been able to prove their counter claim through the evidence of DW1, DW2, DW3 and DW4 and there is no material contradiction in their evidence and the evidence was not discredited under cross-examination. He referred to Nsefik Vs. Muna (2014) ALL FWLR (Pt. 718) 845 at 852 R. 5 and Ihekwoaba Vs. Oyedeji (2014) ALL FWLR (Pt. 718) 921 at 925 R. 3 and urge the Court to hold that the respondents/counter claimants have proved a better title and dismiss the appeal.

On the argument of the appellant’s counsel that the statement of defence and counter-claim of the respondents is incompetent, learned counsel for the respondent submitted that it is a fresh issue raised on appeal as it was not raised at the Trial Court during trial. That the appellants having been served with the process, they did not challenge same but took part in the proceedings from the beginning to the end. Counsel submitted that the appellants are deemed to have waived the irregularity having not raised same timeously. He relied on N.U.B Ltd. Vs. Samba Pet. Co. Ltd. (2006)12 NWLR (Pt. 993)98.  That the appellants having not raised the issue at the Lower Court, cannot raise it on appeal without leave of the Court. The Court was referred to Rotec Eng. Ltd. Vs. N.A.O.C. (2015) ALL FWLR (Pt. 778) 836 at 838 R.I and Odom Vs. PDP (2015) ALL FWLR (Pt. 773)1962 at 1965 R.I.  We are urged to resolve in favour of the respondents.

The Trial Court was faced with a claim and counter claim for the same piece of land and being separate actions, both parties as claimant and counter claimant had to establish their cases, in line with principles governing the grant of declaratory reliefs.
To start with, each of them had to show the Trial Court that he has an interest or right, which forms a foundation for the said relief.  This is because a declaration claimed must relate to some legal right or legal interest of which the law will take cognizance.  See Olawoyin Vs. A–G Northern Nigeria (1961) 2 SCNLR 5; International Textile Industries Nig. Ltd. Vs. Aderemi & Ors. (1999) 8 NWLR (Pt. 614) 268 SC.  The bottom line is that the grant of a declaratory relief is discretionary and it will only be granted when the Court is of the opinion that a party seeking such a relief is, when all facts are taken into consideration, fully entitled to the exercise of Court’s declaration – Odofin Vs. Ayoola (1984) 11 SC 72.
​Therefore, a plaintiff claiming a declaration of title to land must succeed on the strength of his case, and not on the weakness of the defence.  He must prove his ownership in the land claimed which is in dispute.  See Umar Vs. Geidam (2019) 1 NWLR (Pt. 1652) 29 at 32 and Makon Engr. & Tech Services Ltd. Vs. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 165 at 168.  In the instant case, the appellants claimed that they are entitled to ownership of the land in dispute by virtue of inheritance. Where a party bases his claim for declaration of title to land on inheritance, it is not enough for him to testify that he inherited the land in dispute, he must also adduce evidence of how the person from whom he inherited acquired the land.

​The evidence of the 1st and 2nd appellants is on the same line.  In paragraphs 8 – 11 of their statement of defence and paragraph 5 of their witness statement on oath, they pleaded that they inherited the land from their ancestors.  In paragraphs 6 – 8 of their statement on oath they averred that the land in dispute was founded by Kariko who settled on the hill.  Chiroma Kariko inherited from his father Kariko and thereafter moved the residential settlement from the hill to the farm land in dispute where he continued farming there. That after the death of Chiroma, his son Shuaibu inherited the land and the said Shuaibu was the father of the 1st appellant.  The land in dispute is situate at Dot Gindin Dutse, as testified by the respondents.

However, under cross examination Pw 1, the appellants’ witness admitted that the land in dispute belongs to the late Emir of Dass.

Pw2 (1st appellant) under cross examination said he was 49 years as at the 11th of October, 2017 when he testified and has been living in Gauri village for over 49 years.  Still under cross examination he said their ancestors originated from Dauri village, and they never settled anywhere except Dauri. Pw3 (2nd appellant) also said under cross examination that he did not know when the late Emir of Dass gave the land to late Abdullahi Jauro.  He said he would be surprise to hear that the respondents lived in the land for over 40 years when they only stayed on the land for 3 years.

The case of the respondents/counter-claimants is that the land in dispute was given to the late husband of the 1st respondent by the late Emir of Dass, Bilyaminu Usman as deposed in paragraph 3 of their joint statement of defence.  That the land was a forest but late husband of the 1st respondent Abdullahi Jauro cleared the land and made it habitable and established a family, where the 1st respondent lived with him on the land until his death.

In paragraph 7 of the joint statement of defence, it is deposed that the respondents have been in possession of the land in dispute for more than 45 years while the appellants’ ancestors had their land on top of the hill and only migrated from the hill, years after late Abdullahi Jauro was given the land in dispute by the late Emir of Dass.

​In paragraph 10 of the 1st respondent’s witness statement on oath, it is averred that the respondents have been living in the area peacefully without disturbance until two (2) years after the death of her husband that the appellants started claiming ownership of the land. Under cross examination Dw1 (1st respondent) confirmed that it was the late Emir of Dass that gave the land in dispute to her late husband.  She said she got married to her late husband and lived with him on the land for 45 years, when he died and left her on the land which she inherited along with her sons the 2nd and 3rd respondents.

​DW2, Abdullahi Mahmood, the Sarkin Kuletu in Dot village, Dass Local Government Area, stated under cross examination that he was present when the Emir of  Dass gave late Abdullahi Jauro the land in dispute. Also in attendance were Sarkin Dot, Sarkin Kuletu (his late father) and other people from village head of Dot who he could not recall were present at the time of the gift of the land to late Abdullahi Jauro. Still under cross examination Dw2 said the appellants had their land on top of the hill of Dauri.

DW3, Isyaku Madaki (Babale) in paragraph 5 of his statement on oath deposed that late Abdullahi Jauro was the first to settle on the land in dispute.  In paragraph 6, it is averred that it was the Emir of Dass who gave the land in dispute to the husband of the 1st respondent, Abdullahi Jauro and the late Abdullahi Jauro made the land habitable and established his family there.  In paragraph 8, it is deposed that late Abdullahi Jauro had been on the land for more than 45 years without disturbance and no one ever claimed the said land in dispute.  While the appellants have their land on top of the hill.

Under cross examination Dw3 said he was present when the Emir of Dass gave the land in dispute to late Abdullahi Jauro to settle there.  Still under cross examination, he said one Dogara and one Madaki Dauri were also present when the gift was made about 45 years ago to the late Abdullahi Jauro by Emir Bilyaminu Usman, that the Emir even sent his people to demarcate the land for the late Abdullahi Jauro.

​DW4, Nasiru Hassan Wali is the Secretary of Dass Emirate Council.  He also confirmed under cross examination that it was the late Emir of Dass Bilyaminu Usman that gave the land to the 1st respondent’s husband about 45 years ago. Still under cross examination he said late Abdullahi Jauro was the first person to clear the land in dispute.

A calm view of the evidence presented by the parties, the appellants did not lead credible evidence in proof of their title.  The evidence of Pw1 who is the only witness of the appellants, supports the case of the respondents when he said the land originally belongs to the Emir of Dass, thus refuting the claim of the appellants who said the land originated from their ancestors. The evidence of the respondents has been consistent all through and was not controverted or discredited under cross examination.

​Pw2, the 1st appellant deposed in paragraph 6 of his statement on oath that the land in dispute was founded by Kariko, his ancestor who settled on the hill and cleared the land in dispute.  The land in dispute is situate at Dot. However, under cross examination, PW2, (1st appellant) said their ancestors originated from Dauri village and they never settled anywhere except in Dauri. Still under cross-examination PW2 (1st appellant) said as at the 11th of October, 2017 when he testified, he said he was 49 years old and had been in land in dispute for over 49 years.  The contradiction in his evidence only goes to show that he is not a witness of truth to be believed.  He couldn’t have been on the land for over 49 years before he was born, when he said he was 49 years old as at 11th of October, 2017 when he testified.  This is ridiculous.  The respondents testified to the fact that the appellants’ land is on top of the hill.  The appellants by their own showing admitted to this fact by their paragraph 6 of their witness statement on oath.

If the appellants are truthful as they want the Court to believe, they claimed to be on the disputed land for over forty years, the respondents also claimed to be on the disputed land for 45 years, why did the appellants had to wait until after the demise of the 1st Respondent’s husband to start claiming ownership of the land?  The appellants have no answer for this question.

​The evidence of Pw3 (2nd appellant) is also not of any assistance to their case.  Since Pw1, the appellants’ witness confirmed the land in dispute to belong to the late Emir of Dass as testified by the respondents, then the late Emir could give the land to anybody he wished.

When evidence of a witness supports the case of the opposing party against whom he purports to give evidence, that opposing party can take advantage of the evidence to strengthen his case, as long as it is consistent with and corroborates his own case.  See N. B. N. Ltd. Vs. T. A. S. A. Ltd. (1996) 8 NWLR (Pt. 468) 511; Umar Vs. Geidam (2019) 1 NWLR (Pt. 1652) 29 at 33 and Makon Engr. & Tech Services Ltd. Vs. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 165 at 172.  In the instant case the evidence elicited from the appellants strengthen the case of the respondents.  The Trial Court found that the appellants did not prove their title to the land in dispute while the respondents/counter-claimant proved their counter claim which entitled them to the ownership of the land in dispute.  The Judgment of the Lower Court cannot be faulted.  Issues 1, 2, and 3 are resolved in favour of the respondents and against the appellants.

​On Issue 4, whether the statement of defence and counter claim of the Respondents is a competent process in the eyes of law.  Without going into the submissions of counsel to the parties, this issue is an academic issue because it does not relate to and has no bearing to an issue decided in live litigation between the parties before the Trial Court.  A ground of appeal must arise from the decision of the Court.  The ratio decidendi of the Trial Court is the part of its Judgment that answered and determined all questions in the Writ of Summons.  This, part contains the decision by that Court and the reasons for the decision.  As there is no decision of the Lower Court on the issue, the ground 4 of the appellants’ notice of appeal from which the issue 4 is distilled is incompetent.  Ground 4 of the notice of appeal and the issue 4 distilled therefrom are struck out for being incompetent. See Abdullahi Vs. State (2013) 11 NWLR (Pt. 1366) 435 and Gov. Imo State Vs. Amuzie (2019)10 NWLR (Pt. 1680)331 at 338.

In conclusion, I find the appeal unmeritorious and it is accordingly dismissed.  I award N100, 000.00 costs for the respondents against the appellants.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now a copy of judgment just delivered by my learned brother, TANI YUSUF HASSAN, JCA and I agree with the reasoning and conclusion thereat that the appeal is unmeritorious and should be dismissed.

I also dismiss the appeal and I abide by the consequential orders.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft form the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A. I am in agreement with her that the appeal is unmeritorious; accordingly, I also dismiss this appeal. I abide the order as to costs as contained in the lead judgment.

Appearances:

S. U. Aliyu For Appellant(s)

Umar Hassan, with him, Mrs. M. S. Aliyu. For Respondent(s)