SULE MAMMAN & ORS v. ADAMU GARBA KOFAR-BAI (2015)

SULE MAMMAN & ORS v. ADAMU GARBA KOFAR-BAI

(2015)LCN/7981(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 29th day of July, 2015

CA/K/266/2014

RATIO

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND

In all cases where a plaintiff is seeking for declaration of title to land, the burden lies on him to prove his case on evidence adduced by him and he will fail if he fails to discharge that burden and if he succeeds by proof of credible evidence, he is entitled to the declaration of title sought by him. See NIKAGBATSE VS OPUYE (2010) 14 NWLR (PT 1213) 50; EDOHEOKET VS INYANG (2010) 7 NWLR (PT 1192) 25; JIYA VS AWUMI (2011) 4 NWLR (PT 1238) 467. per. UWANI MUSA ABBA AJI, J.C.A.

APPEAL: FINDING OR NON-FINDING OF FACT; WHAT THE APPELLATE COURT WILL SEEK TO KNOW WHERE THE FINDING OR NON-FINDING OF FACTS BY TRIAL COURT IS QUESTIONED ON APPEAL

Where the finding or non-finding of facts by a trial Court is questioned on appeal, the Appellate Court will seek to know the following:
a. The evidence before the Court.
b. Whether the trial Court accepted or rejected any evidence upon the correct perception.
c. Whether the trial Court correctly approached the assessment of the evidence before it and placed the right probative value on it.
d. Whether the trial Court used the imaginary scale to weigh the evidence on either side.
e, Whether the trial Court upon the preponderance of evidence appreciated which side the scale weighed having regard to the burden of proof. per. UWANI MUSA ABBA AJI, J.C.A.

EVIDENCE: HEARSAY IN TRADITIONAL HISTORY; WHETHER HEARSAY EVIDENCE IS ADMISSIBLE IN THE PROOF OF TRADITIONAL HISTORY

It is therefore the position of the law in OYADIGI V. OLANIYI (2005) 5 NWLR (PT.919) 561 that: “Hearsay evidence in traditional history is an exception to the general rule on hearsay. It is admissible for that purpose…A claim of ownership to land based on traditional evidence is basically hearsay from one person to the other over time out of living memory”.
See also IRALUD V. AEDOKUN (2005) 1 NWLR (PT.906) 199. per. UWANI MUSA ABBA AJI, J.C.A.

EVIDENCE: HEARSAY EVIDENCE; WHETHER HEARSAY EVIDENCE ARE ADMISSIBLE

Besides, hearsay evidence is inadmissible and the Courts are enjoined to reject them. See Section 38 of the Evidence Act, 2011 (As Amended) and OJO V. GHAHORO (2006) ALL FWLR (PT.316) 197 SC. Equally, the Court held in N.A.B. LTD V. SHUAIBU (1991) 4 NWLR (PT.186) 450 AT 465:
“It is trite that the power of a trial Court to reject evidence is limited to testimony which is clearly inadmissible.” per. UWANI MUSA ABBA AJI, J.C.A.

EVIDENCE: INSPECTION OF PROPERTY;THE PROVISION OF THE EVIDENCE ACT AS TO THE INSPECTION OF PROPERTY
See per Rowland, JCA, in UZONDU V. UZONDU (1997) 9 NWLR (PT.521) 466 AT 482. Similarly, Section 127 (2) of the Evidence Act, 2011 (As Amended), provides as follows:
127 (2), Evidence Act, 2011:
When an inspection of property under this section is required to be held at a place outside the courtroom, the Court shall either-
(a) be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until the Court further adjourns back to its original place of sitting, or to some other place of siftings; or
(b) attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in Court afterwards, and in either case the defendant, if any, shall be present. per. UWANI MUSA ABBA AJI, J.C.A.

LAND LAW: OWNERSHIP OF LAND; WHAT A CLAIMANT MUST SATISFY TO SUCCEED IN A CLAIM OF OWNERSHIP OF LAND

Further, it settled law that to succeed in a claim of ownership of land, a claimant must satisfy, the Court as to (a) the precise nature of the tide claimed, that is to say, whether it is title by virtue of original ownership, customary grunt, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Okelola Vs Adeleke (2004) 13 NWLR (Pt 890) 307, Ajiboye Vs Ishola (2006) 13 NWLR (Pt 998) 628 and Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25. 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 from his father; he must also adduce evidence of how the father acquired the land –
Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Daniel-Kalio Vs Daniel-Kalio (2005) 4 NWLR (Pt.915) 305, Adebayo Vs Shogo (2005) 7 NWLR (Pt.925) 467, Mena Vs Aniafulu (2005) 13 NWLR (Pt 943) 668, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt. 1127) 194, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

APPEAL: INTERFERENCE; THE DUTY OF AN APPELLATE COURT TO INTERFERE WITH THE DECISION OF A LOWER COURT THAT IS PERVERSE

It is settled law that an appellate Court is enjoined to interfere with the decision of a lower Court that is perverse and a perverse decision is where the Court ignored the evidence or the pleadings; or where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious and that this formed the basis of its decision; or that it went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or that it committed various errors that faulted the decision beyond redemption; or when the circumstance of the finding of facts in the decision are most unreasonable. The hallmark is miscarriage of justice – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217, Febson Fitness Center Vs Cappa Holdings Ltd (2015) 6 NWLR (Pt.1455) 263. This Court must, in the circumstances, interfere with the decision of the lower Court in the instant case as it ignored evidence and shut its eyes to the obvious. It is settled that the proper steps for an Appellate Court to take where the lower Court has failed to properly evaluate all the evidence led by parties at the trial is either to order a retrial or carry out the evaluation of the evidence itself – Orianwo Vs Okene (2002) 14 NWLR (Pt 786) 156, Wachukwu Vs Owunwanne supra, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522. In this case, the notes of the evidence led by the first plaintiff witness at the locus in quo are not available and thus the only just order this Court can make is one ordering a retrial of the matter by the lower Court. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

1. SULE MAMMAN
2. MUSA MAMMAN
3. UMMI MAMMAN Appellant(s)

AND

ADAMU GARBA KOFAR-BAI Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the Katsina State High Court, sitting at Katsina, delivered by Hon. Justice Abdullahi Yusuf (The chief Judge) on the 5th day of March, 2014. The Appellants commenced this action in the lower Court in Suit No. KTH/17/2013 against the Respondent and their claims were as follows:
a. A declaration that the house situated at Kofar-Bai quarters near Hamdana Mosque close to Magatakarda’s house bordering from east by the main road, from the north by Alh. Tijjani’s house from the south by the house of Lawal Na Gambarawa from the west bordering the house of Kabir MaiGyaran Radio is the property of the Plaintiffs by virtue of inheritance from their late father Mamman Garba.
b. An order directing the Defendant to quit from the said house the subject of this litigation and give quite possession to the Plaintiffs forthwith.
c. An order of perpetual injunction restraining the Defendant, his servants, representatives and privies from interfering with the quite possession and ownership of the said house.

d. N500,000.00 (Five hundred thousand naira only)

The Appellants who were Plaintiffs at the lower Court are siblings and children of Late Mamman Garba, while the Respondent is the Appellants’ Late father’s brother. It is the case of the Appellants that the property, the subject matter of litigation belongs to their late father, Mamman Garba, who bought same from Alhaji Magaji Unguwar Jaji about 50 years ago at the cost of $13:10s. It is their case that their later father developed and lived on the said property throughout his life time with his family. That after the demise of their late father, his estate was distributed among his heirs who were his father, wife, and three (3) children by Area Court II, Katsina, Presided by Alhaji Lawal Boyi in Suit No. 400/89 between M. BADAMAGARE KOFAR-BAI AND MARYAM HASSAN SABUWAR KASUWA. It is the Appellants’ case that the Respondent lived with their father for over 19 years.

The Respondent denied the Appellants’ assertion and argued that the property in issue was bought and developed by their late father, Mallam Garba Badamagare, who divided same into three (3) portions; a portion was developed

for the Appellants’ father when he was getting married and one portion was developed for the Respondent when he was getting married while the other portion was left for rearing of animals. It was his case that the Appellants’ father lived with his family on the portion of the land that was developed for him by his father and that Suit No. 400/98 was between M. Badamagare Kofar-Bai and Maryam Hassan Sabuwar Kasuwa and has no bearing to the title in issue. He claimed that the distribution of estate by Area Court II was done to such an extent of estate owned by the Appellants’ father and that the grandfather of the Appellants (Malam Garba Badamagare) who was an heir to his son, Mamman Badamagare said he had waived his share to his grandchildren and that they should own the part of the house as owned by their father. He finally stated that they are consanguine brothers with the Appellants’ father and every one lived in his own apartment peacefully.

At the hearing of the case, the Appellants called five (5) witnesses and tendered two exhibits while the Respondent called eight (8) witnesses and closed his case.

?It is against this background that the

learned trial judge in a judgment entered judgment in favour of the Respondent. The Appellants being dissatisfied with the decision of the trial Court, appealed vide a Notice of Appeal dated 9th April, 2014; upon three (3) grounds of appeal as hereunder reproduced without their particulars:
GROUND ONE:
The learned trial Chief Judge erred in law in failing to give the Plaintiffs’ witnesses due probative value viz-a-viz the Plaintiff’s claim thereby occasioning a miscarriage of justice.
GROUND TWO:
Had the learned trial chief Judge adverted his mind to the pleadings of the parties viz-a-viz the evidence led, the learned trial Chief Judge would not have erroneously entered judgment in favour of the Defendant which occasioned a miscarried of justice.
GROUND THREE:
Had the learned trial judge adverted his mind to the testimony of PW1, his evidence in chief as well as the explanation during the visit to locus the identity of the subject matter as claim by the Plaintiffs he would not have dismissed the Plaintiffs’ suit.

In accordance with the Rules of this Court, the Appellants filed their brief of argument dated 10th day of June, 2014, and filed on the 12th day of June, 2014; settled by Abdul Aliyu Esq, wherein two (2) issues were formulated for determination, viz:-
1. Whether the learned trial Chief Judge did not use double standard in the application of the principle of hearsay in the proceedings leading to judgment.
2. Whether the Plaintiffs’ evidence is consistent with the pleadings in so far as the identity of the only house the subject of dispute is concerned that the house is not divided into three (3) as alleged by the Defendant.

The Respondent filed his brief of argument dated 5th day of March, 2015, but deemed properly filed on 9th of March, 2015; settled by A.D. Umar Esq; wherein he formulated a lone issue for determination.
Whether the Appellants (as Plaintiffs at the trial) proved their root of title by cogent, credit (sic) and upon preponderance of evidence to be entitled to a declaration of title.
?
At the hearing of the appeal on the 3rd of June, 2015; the Counsel to the

Appellants adopted his brief of argument and prayed this Court to allow the appeal, while the Respondent adopted his brief and urged the Court to dismiss the appeal.

I shall consider this appeal on the lone issue formulated by the Respondent with a retouch which encapsulates the two issues formulated by the Appellants to wit:-
Whether the Appellants proved their root of title by cogent, credible and preponderant evidence to be entitled to a declaration of title.
ISSUE:
Whether the Appellants proved their root of title by cogent, credible and preponderant evidence to be entitled to a declaration of title.

Learned Counsel for the Appellants submitted that the learned trial Chief Judge used double standard in the application of the principle of hearsay with regards to the oral testimonies of PW1 and PW2 as being hearsay and rejected same while the evidence of DW1 and DW2 whose testimonies were equally hearsay was heavily relied upon by the learned trial judge in his judgment.

Learned Appellants’ Counsel further submitted that the oral testimony of DW1 (Shehu Abdullahi) is not only

hearsay but also not supported by written pleadings of the Respondent, yet the Court relied on it and delivered its judgment against the law. He relied on the cases of M.V. GONGOLA HOPE VS SMURFIT CASES (2007) 30 NSCQR PAGE 535 AT 557 PARAS E – F; WOLUCHEM VS GUDI (2006) 2 SC PAGE 132 AT 159 PARAS F; YARE, VS NSWIC (2013) 54 NSCQR PAGE 235 AT 50 PARAS F. Counsel argued that the evidence of DW1 which is not supported by the written pleadings of the Respondent ought to be expunged by the trial Court which duty the trial Court failed to do and instead relied heavily on it and decided the matter in favour of the Respondent.

Learned Counsel also argued that the testimony of DW2, one Asiya Isa in her evidence, apart from the fact that she was told by her father’s sister, she was at that time a child and would not be able to know anything then. On the testimony of DW7, one Haliru Musa, Counsel submitted that despite the unambiguous nature of the evidence given by DW7 as to the ownership of the disputed house, yet the trial Court believed him.

Learned Counsel argued that the learned trial Court was in great error when it believed the testimony of this

witness despite the fact that the witness has informed the Court that he knew nothing about the ownership of the house. He also submitted that the position of the law is that hearsay evidence is inadmissible and Courts are enjoined to reject them. He cited the provision of Section 38 of the Evidence Act, 2011 (As Amended) and the case of EJIOFFOR VS THE STATE (2001) 6 NSCQR PART 1 PAGE 209 AT 221 PARAS D – F. He thus urged the Court to resolve issue 1 in favour of the Appellants and allow the Appeal.

On the second issue, Counsel submitted that the evidence of PW1, one Alhaji Shehu Ahmed is in tandem with the two (2) Exhibits tendered before the trial Court when he informed the Court that during the visit to locus in quo, that it was the whole house that he came to inspect which was actually valued and shared to the plaintiffs with their mother and grandfather, yet Counsel contended that the trial Court held that it referred to the house of late Mamman Bilya.

Learned Counsel argued that the learned trial Court refused to record the proceedings and evidence of PW1 despite the fact that the attention of the trial Chief Judge was drawn, but rather

proceeded to take a date for address. Learned Counsel thus argued that the refusal to record the proceeding of the visit to locus in quo offends the provision of Section 127(a) and (b) of the Evidence Act, 2011 (As Amended); which refusal has occasioned a miscarriage of justice.

Counsel further submitted that the learned trial judge was in error when he refused to consider the evidence of DW6 when he stated that it was the whole house including where the wife of the deceased stayed with her children that was distributed. That the Learned trial Court apart from refusing to accord the testimonies of PW1 and DW6 probative value, it was in error when it allowed oral testimony to vary the content of Exhibits A and A1 which are records of proceedings and this has offended the provisions of Section 128 of the Evidence Act, 2011 (As Amended). He supported this position with the case of OGUNDELE VS AGIRI (2009) 40 NSCQR PAGE 427 AT 449-450 PARAS H-A.
Counsel finally urged the Court to allow the appeal and quash the judgment of the trial Court.

In his response, Learned Counsel for the Respondent submitted that it is settled principle of law that in all

cases where a Plaintiff is seeking a declaration of title to land, the burden lies on the Plaintiff to prove his case on his evidence, and will fail if he fails to discharge that burden. He referred the Court to the case of ECHI VS NNAMANI (2000) 8 NWLR PART 667 PAGE 1 AT 12. Counsel submitted that the Supreme Court restated the extant principles of proof of title to land in the CASE OF BELLO SALAMI & ANOR VS ADETORO LAWAL (2008) 14 NWLR PART 1108 PAGE 546 AT 574 PARAS A-E. He stated that it is clear that the Appellants’ witnesses were not there when the Appellants’ father purchased the land as stated by PW1, PW2 and PW3. That the Appellants relied on their late father as their root of their title who in turn bought it from Alhaji Magaji Unguwar Jaji. However, he said the Appellants pleaded in paragraph 14 of their statement of claim that their late father died and left the Respondent in the house in dispute. Counsel argued that where a party traces its root of title to another person, he has a duty to show how his predecessors acquired title to the land. He relied on the case of JULIUS OBA FATOYINBO & 2 ORS VS MICHEAL DADA OSADEYI & ANOR (2009)

16 NWLR PART 1168 PAGE 605 AT 625-626 PARAS H-H. Learned
Counsel finally submitted that the Appellants having failed to prove their root of title are bound to fail in their claim especially when the whole witnesses called by the parties are in agreement that the Respondent has been in possession of the subject matter for over 19 years.

Counsel therefore urged this Court to dismiss this appeal and affirm the decision of the learned trial judge.

upon the correct perception.
c. Whether the trial Court correctly approached the assessment of the evidence before it and placed the right probative value on it.
d. Whether the trial Court used the imaginary scale to weigh the evidence on either side.
e, Whether the trial Court upon the preponderance of evidence appreciated which side the scale weighed having regard to the burden of proof.

It is nevertheless observable from the pleadings that this case is not based on traditional history at all. At pages 4-5 of the records, especially Paragraphs 5-7 and 12-13, the Appellants pleaded as follows:
5. That the Plaintiffs aver that the house, the subject of litigation belongs to their late Father, late Mamman Garba.
6. The Plaintiffs further aver that it was initially a plot which their late Father bought from Alhaji Magaji Unguwar Jaji who is now late about 50 years ago at the cost of E13:10s in the presence of witnesses.
7. The plaintiffs will contend at the trial that their late Father Mamman Garba after purchasing the plot from late Alhaji Magaji

Unguwar Jaji developed the said piece of land into a full residential house where he resided and lived with his family throughout his life time.
12. The plaintiffs further state that the distribution of the estate of late Mamman Garba was carried out by Area Court II Katsina presided by Alhaji Lawal Boyi (principal Area Court Judge) in suit No.400/89/ between M.BADAMAGARE KOFAR BAI AND MARYAM HASSAN SABUWAR KASUWA. Reliance shall be placed on the record of proceedings at the trial.
13. The plaintiffs also state that pursuant to the confirmation of the distribution of the estate by Area Court No.II, Katsina, the writ of Possession was duly processed and issued the beneficiaries who are the present plaintiffs in this action. The plaintiffs will rely on the said writ of Possession issued by the Area Court No.II, Katsina, in Case No.400.89 at the trial.

The Respondent on the other hand at pages 8 and 10 of the records, at Paragraphs 2, 3 and 12 thus:
2. The defendant denies Paragraph 5 of the statement of claim and further avers that he has ownership of the said house, the documents of

ownership will be pleaded in the course of the trial.
3. The defendant denies Paragraph 6 of the statement of claim and further avers that there is still a witness that witnessed the said sale of land by Alhaji Magaji Unguwar Jaji to Alhaji Garba Badamagare (grandfather of the plaintiffs who is equally father to the defendant.)
12. The defendant further avers that there have been unsuccessful litigation against him in the lower Court and his radical title ownership cannot be defeated.

It is therefore the position of the law in OYADIGI V. OLANIYI (2005) 5 NWLR (PT.919) 561 that:
“Hearsay evidence in traditional history is an exception to the general rule on hearsay. It is admissible for that purpose…A claim of ownership to land based on traditional evidence is basically hearsay from one person to the other over time out of living memory”.
See also IRALUD V. AEDOKUN (2005) 1 NWLR (PT.906) 199.

In the instant appeal however, this exception does not apply since it is not a matter based on traditional history as otherwise pleaded by the parties in this appeal.

The hearsay rule does not therefore apply here, hence remains inadmissible.

The Appellant in his brief of argument has attacked the trial Court’s reliance and reference to hearsay evidence for double standard. In other words, the trial Court while rejecting the evidence of the Appellants’ witnesses as hearsay, somersaulted in applying and upholding same to the evidence of the witnesses to the Respondent.

Having read the pleadings and the testimonies of the Respondent’s witnesses vis-a-vis the argument and submissions of the learned Counsel to the Appellants, it is obvious that the trial Court applied double standard in its application of the principle of hearsay evidence. While it held severally in its judgment from pages 54-57 of the records, the testimony and evidence of PW3 and PW4 as hearsay, it held otherwise in the case of the Respondent. At pages 24 lines 7-12 of the records, DW1 admitted amongst other things that, “I was not present when the house was distributed… Yes, all what I told this Court is what Mallam Garba told me.’ Yet, the trial Court believed him when it held inter alia at pages 58-59 lines 22-3 that, “This witness testimony of

what he heard about the quarrel between the defendant and the plaintiffs’ father highlighted earlier is very much relevant on the ownership of the house in dispute which was not proved by the plaintiffs’ witnesses going by their testimony… I believe his testimony.” Similarly, the DW1’s testimony about a quarrel was heavily relied upon by the trial Court and same was nowhere in the records pleaded by the Respondent. I will not therefore hesitate to reject same. It is trite that any evidence that is not pleaded goes to no issue; it is inadmissible in law and the Appellate Court is duty bound to reject same. See YARE v. NSWIC (2013) 54 NSCQR 235 AT 250 PARAS E-F and WOLUCHEM v. GDI (2006) 2 LC 132 AT 159 PARA F.

In the same vein, DW2 at page 25 lines 7-10 admitted that, “I do not know who did the distribution…I was not in the house…I used to come to the house and my father’s sister told me.” yet, the trial Court held at page 59 lines 17-21 as follows: ” This Court believed the testimony of this witness as she was in the midst of all what happened having been raised and was married of by the father of the defendant who happened to be the grandfather

of the plaintiffs.”

Further, DW7 testifying at page 35 of the records admitted from lines 12-20 inter alia, “So also I do not know how the assets of late Garba Badamagare were shared. Yes I know nothing about the house as far as its ownership is concerned…I cannot say who own the house.”
Nevertheless, the trial Court pertaining the testimony of this witness, held at page 62 from line 18-21 as follows: “This Court finds the testimony of this witness very useful in that the witness was frank enough to limit himself with what he knew and that by his demeanour, he was a witness of truth. This court believes his testimony.” I must emphasize here that where there are conflicts in evidence, demeanour is of little guide to the truth. Per Onu, JSC, in OGBUOKWELU V. UMEANAFUNKWA (1994) 4 NWLR (Pt.341) 626 AT 693, held inter alia that:
“Where …, there is admittedly conflict of traditional histories and one side or the other must be mistaken, yet both may be honest in their belief, demeanour is little guide to the truth. The best way to test one traditional history against the other is by reference to the facts in recent

years as established by evidence and by seeing which of the two competing histories is more probable.”

Though I am not limiting myself to the testimonies of the above mentioned witnesses to the Respondent, I must confess that there is no absurdity and contradiction as this is enough to whittle down the evidence of these said witnesses and to make them incredible and unbelievable, yet the trial Court closed its eyes and glossed over them as if to believe a witness seals up a matter. I think that the trial Court did not appraise himself with the facts and evidence of the witnesses in this matter to have swayed him to believe them as witnesses of truth despite all that the records have revealed! He has indeed descended in to the arena. Besides, hearsay evidence is inadmissible and the Courts are enjoined to reject them. See Section 38 of the Evidence Act, 2011 (As Amended) and OJO V. GHAHORO (2006) ALL FWLR (PT.316) 197 SC. Equally, the Court held in N.A.B. LTD V. SHUAIBU (1991) 4 NWLR (PT.186) 450 AT 465:
“It is trite that the power of a trial Court to reject evidence is limited to testimony which is clearly inadmissible.”

This case

does not therefore fall within the exception of the hearsay rule since the pleadings of the parties are not based on traditional history.
Thus, this evidence of hearsay is hereby rejected.

What is more? Respondent as earlier discussed, pleaded and averred at pages 8 and 10 of the records, at Paragraphs 2, 3 and 12 of the records as follows: “that he has ownership of the said house, the documents of ownership will be pleaded in the course of the trial…, that there is still a witness that witnessed the said sale of land by Alhaji Magaji Unguwar Jaji to Alhaji Garba Badamagare (grandfather of the plaintiffs who is equally father to the defendant.), and that there have been unsuccessful litigation against him in the lower Court and his radical title ownership cannot be defeated.” However, there is nowhere in the record that he tendered any document of ownership to the land in dispute, called a witness who witnessed the sale of the land or even proved that there was any litigation against him that failed. On the contrary and to his risk, he applied for a recall of pw1 at page 35 lines 22-25 through whom he would tender a document on the ownership of

the land but told the trial Court at page 38 of the 1st paragraph that they dispensed with the recall of PW1. What else then does the Respondent have to anchor his case on as pleaded to prove “that he has ownership of the said house? “See his pleading at page 8 Paragraph 2 of the records. It is trite therefore that any pleading that evidence has not been led thereto is deemed abandoned. Thus, facts pleaded, on which no evidence is adduced, go to no issue and will be deemed to have been abandoned. See OLAREWAJU V. AFRIBANK (NIG) PLC (2001) 7 SCNJ 493.

Besides, I see this as a tactic amounting to withholding of evidence. Per Oguntade on the decision of a Counsel not to call evidence, whether it amounts to a mistake or inadvertence, had this to say in GAZU V. NYAM (1998) 2 NWLR (PT.538) 477 AT 493:
“In my experience, a decision not to call evidence always has been regarded as a legal strategy, not a mistake. If the strategy succeeds, then it enhances the case of the party, but if it fails, such a litigant cannot ask for leave to adduce further evidence in order to repair his damaged case. It seems to one that if every party who makes a wrong choice

of that nature is allowed to repair his case in this way, there will be no end to litigation.”
Again, the Court per Pats-Acholonu, JCA, in BABALOLA V. BADMUS-WELLINGTON (1998) 11 NWLR (PT.572) 167 AT 176 held:
“…the Court may presume …that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.”
See also per Iguh, JSC, in OGUONZEE V. STATE (1998) 5 NWLR (PT.551) 540 AT 553 and BELLO V. KASSIM (1969) NSCC 228 AT 233.

An application for a visit to the locus in quo was made by the counsel to the Appellants at the last paragraph of page 37 of the records. A visit to locus in quo is not meant to repair damage in the case of a litigant or the evidence given by witnesses before the Court and also to test the veracity of that evidence. See ACHO vs ADEJOH (2010) 6 NWLR (PT 1191) 537. Nonetheless, a visit to locus is a desideratum where the identity of the land is not certain or where there are ambiguities to settle by a physical visit and identity of the land. In the instant appeal, I suppose that a visit to the land would have settled the contentious issue of

whether it is the “whole house” or not. This probably impelled the application made by the learned Counsel to the Appellants. More importantly was the public alarm raised by the Appellants’ Counsel at the 1st Paragraph of page 39 of the records to the trial Court when he reminded:
“The matter was slated to today for visit to locus, having undertaken the visit, I urge this Court to note (sic) the testimony of PW1 at the locus in quo.”

Lamentably, the trial Court failed to record all that transpired at the locus and all the ambiguities and the uncertainties concerning the land was never settled by the trial Court who substituted the evidence of the witnesses with his own personal observation (if any). In fact, there is absolutely no record of the proceedings at the locus in quo even in the face of its very relevance and importance in this appeal!!! On the governing procedure where Court visits locus in quo, it was held in SEISMOGRAPH SERVICES LTD V. AKPORUOVO (1974) 6 SC 119:
“…it is manifest from the record that the learned trial Judge substituted his personal observation for the sworn testimony of

witness… Neither the plaintiff nor the defendants on record gave oral evidence at the locus. The purpose of the visit though not recorded in the record book can be gleaned from the Court’s ruling following the plaintiff’s counsel application to visit the locus in quo. It seems to me that after the visit and the parties reassembled at the Court room again, the places pointed out and everything said by the witnesses at the locus ought to be confirmed by evidence on oath in Court. In the case in hand, the learned trial Judge did not follow this procedure and he also acted on statements which were not part of the evidence…. In fact the procedure adopted by the learned trial Judge amounted to a violation of the appellants constitutional right of fair hearing… The Court below committed a serious error in not giving the defendants/appellants the opportunity to put across their own side of the case as far as the visit to the locus in quo was concerned before the trial Judge adjourned the case for ruling.”
See per Rowland, JCA, in UZONDU V. UZONDU (1997) 9 NWLR (PT.521) 466 AT 482. Similarly, Section 127 (2) of the Evidence Act, 2011 (As Amended),

provides as follows:
127 (2), Evidence Act, 2011:
When an inspection of property under this section is required to be held at a place outside the courtroom, the Court shall either-
(a) be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until the Court further adjourns back to its original place of sitting, or to some other place of siftings; or
(b) attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in Court afterwards, and in either case the defendant, if any, shall be present.

In the current appeal, it is on record that the trial Court did not record the inspection of the subject-matter nor the evidence thereto at the locus in quo. This became so necessary considering the evidence of PW1, aged 64 years, who was a Court clerk at Area Court 2, Kofar Soro, delegated by the Court in 1989 to inspect the land in dispute and share same to the Appellants, who was also present at the locus in quo, yet his evidence was not recorded. This has now become also an issue by the Appellants’ Counsel that his

evidence has agreed with that of DW6 who referred to the land in dispute as the “whole house”. In fact, DW6 vehemently maintained even when clarity was needed concerning whether it was the whole land or where only the Appellants’ father left under cross-examination at pages 33-34 of the records, said on lines 3-4 that it was “The whole house including the mother of the deceased stayed with her children.” Indeed, the trial Court was in violation of the law on visit to locus in quo and I so hold.

To cap it all, it is in evidence that the Appellants were able to rely on Exhibits A and A1 as the record of proceedings and the Writ of Possession respectively conferring the ownership of the land in dispute in the Appellants. Although the said Exhibits have not with precision and certainty described the land area and the property bequeathed to the Appellants, this matter would have been so easily settled and tackled by the trial Court at the visit to locus. Nevertheless, the evidence of PW1 is direct, relevant and germane to the pleadings and case of the Appellants with regard to the ownership and identity of the land. This is so because it is only PW1 who was

opportuned to visit the land in dispute in 1989 for distribution to the Appellants and also present at the visit to the locus. Nevertheless, the trial Court never minded or failed woefully to record his evidence at the locus even when the trial Court’s attention was called at the 1st paragraph of page 39, to “note the testimony of PW1 at the locus in quo”.

Can the oral testimony of the other witnesses to the Appellants and those of the Respondents vary the contents of Exhibits A and A1? It is trite that no oral evidence is admissible to contradict the contents of a document. See OGUNDELE V. AGIRI (2009) 40 NSCQR 421 AT 449-450 PARAS H-A. In the same vein, the Court held in ABUBAKAR v. WAZIRI (2008) ALL FWLR (PT.436) 2025 AT 2047 C-D:
“Where a party leads evidence as to the existence of a document in proof of his case, that document should be tendered. The original thereof or secondary evidence thereof, in appropriate circumstances, should be tendered.
The law does not generally allow oral evidence to be led in proof of a document.”

On competent witnesses in land cases, per Belgore, JSC, in UMEOJIAKO & ANOR V. EZENAMUO & ORS (1990)

1 NWLR (PT.126) 253 AT 267 held:
“Anybody connected with land whether due to family link with the land or as witness to what happened to the land or as a party to a transaction on the land is definitely a competent witness.”

In the case at hand, it is observable that PW1 has been a witness who has been so connected to the ownership of the land in dispute since 1989 and also the identity of same.

In the 13-Paragraph Statement of Defence at pages 8-18 of the records, the Respondent laid claim of ownership to the land in dispute at paragraph 2 but same was abandoned as no evidence was led on it.
Besides, there is no counter-claim to the ownership of the land in dispute but rather a defence to the claim of the Appellants. Thus, since he did not seek for a declaration of title to the land vide counter-claim, it was wrong for the trial Court to dismiss the case of the Appellants. In IKOKU V. EKEUKWU (1995) 7 NWLR (PT.410) 637 AT 653, it was held that:
“…the law is settled that it will be wrong to declare title in respect thereof in favour of the defendant if he had not sought for such a relief by way of a counter-claim.”

I am of the

firm opinion that the Appellants have proved their title to the land in dispute. The judgment of the trial Court is regrettably improper. I resolve this issue in favour of the Appellant. I therefore allow the appeal and set aside the judgment of the learned trial Chief Judge delivered on 5/3/2014 in Suit No.KTH/17/2013. I make no order as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the leading judgment delivered by my learned brother, Uwani Musa Abba Aji, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree that there is merit in the appeal but I differ on the reasoning and do not agree with the conclusions reached.

This is a land dispute. The Appellants commenced the action in the lower Court against the Respondent. The Appellants are children of the same father, one late Mamman Garba, while the Respondent is the brother of the late father of the Appellants. The Appellants claimed ownership of the land and property in dispute and it was their case that their father purchased the land in dispute from one Alhaji Magali Unguwar Jaji about fifty

years ago for Thirteen Pounds Ten Shillings in the presence of witnesses and that their father later developed the property on the land and lived therein with his family throughout his lifetime. It was their case that their father accommodated the Respondent in a pmt of the house for over nineteen years and that on the demise of their father his estate, including the property in dispute, was distributed amongst his heirs – his fathe4 his wife and children, by the Area Court II, Katsina State in Case No 400/89 – M. Badamagare Kofar Bai Vs Maryam Hassan Sabuwar Kasuwa and at the conclusion of which a writ of possession vesting the ownership of the property in dispute was issued to them by the Area Court II.

The case of the Respondent in response was that the land in dispute was bought and developed by one Mallam Garba Badamagare, his father and also the father of the late father of the Appellants, and that Mallam Garba Badamagare divided the land into three portions and he developed a portion for the late father of the Appellants when he got married and another for him when he got married and left the third portion for the rearing of animals. It was his

case that the late father of the Appellants lived with his family on the portion of the land that was developed for him by their father and that Case No 400/89 had no bearing on the ownership of the land in dispute and that the distribution of estate carried out by Area Court II was done to the extent of the portion owned by the late father of the Appellants.

The matter proceeded to trial and in the course of which the Appellants called five witnesses in proof of their case and they tendered two exhibits while the Respondent called eight witnesses and tendered no exhibit in proof of his defence. At the conclusion of trial, the lower Court entered judgment in favour of the Respondent and it dismissed the claims of the Appellants and whereupon their Counsel filed the present appeal.

Before going into the substance of the appeal, it is necessary to reiterate some of the established principles in land litigation and how they play out in this present case. It is settled law that in an action for declaration of ownership of land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s

case and where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ukaegbu vs Nwololo (2009) 3 NWLR (Pt 127) 194, Adu Vs Gbadamosi (2009) 6 NWLR (Pt 1136) 110, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587, Oyeneyin vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. In land matters, a defendant’s position is that even if he fails to adduce any evidence at all, he is entitled to judgment in his favour where a claimant fails to establish his claim for ownership by credible evidence; the defendant has no burden of proof – Elegushi vs Oseni (2005) 14 NWLR (Pt 945) 348, Oyedeii vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt.1188) 604. Thus in the present case the onus of proof of ownership of the property in dispute before the lower Court was on the Appellants and they were obliged to lead credible evidence in support of their claim irrespective of what the Respondent did as there was no burden of proof on the Respondent.

Further, it settled law that to succeed in a

claim of ownership of land, a claimant must satisfy, the Court as to (a) the precise nature of the tide claimed, that is to say, whether it is title by virtue of original ownership, customary grunt, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Okelola Vs Adeleke (2004) 13 NWLR (Pt 890) 307, Ajiboye Vs Ishola (2006) 13 NWLR (Pt 998) 628 and Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25. 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 from his father; he must also adduce evidence of how the father acquired the land –
Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Daniel-Kalio Vs Daniel-Kalio (2005) 4 NWLR (Pt.915) 305, Adebayo Vs Shogo (2005) 7 NWLR (Pt.925) 467, Mena Vs Aniafulu (2005) 13 NWLR (Pt 943) 668, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt. 1127) 194, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587. It is only where the defendant does challenge or deny the ownership of the land by his father that a claimant has no duty to prove the source of the father’s title

Anukam Vs Anukam (2008) 5 NWLR (Pt 1081) 455. The Respondent denied the ownership of the property in dispute by the late father of the Appellants and the Appellants thus had the further burden of proving how their father acquired ownership of the land in dispute.

In arguing the appeal, parties exchanged briefs of arguments. Reading through the grounds of appeal of the Appellants and the issues formulated for determination by their Counsel in this appeal, it is clear that the grouse of the Appellants is with the manner the evaluation of the evidence led by the parties was carried out by the lower Court. They complained that the lower Court adopted double standards in evaluating the evidence of the two set of witnesses and took no records and made no use of the evidence led by the first plaintiff witness during the visit to the locus in quo.

Now, it is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is

evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt 1256) 574, Nacenn Nigeria Ltd vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt.1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1.
It is the primary responsibility of a trial Court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision.
This is regulated by time honoured procedure designed to mete out justice to both parties before the Court. The procedure is crucial in its observance. The trial Court is enjoined to place the totality of the testimonies of both parties on an imaginary scale.
One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The Court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the Court in this regard, it should consider whether the evidence led by a party in its totality

is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the Court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision.
The lower Court must not impair the evidence either with its personal knowledge of matters not placed and canvassed before it or by inadequate evaluation, and should endeavour to avoid vitiating the case presented by the parties through its own wrongly stated or misapplied principle of law. It must carefully examine the evidence and clearly understand the issues he has to resolve in the case and then proceed to resolve them. Its duty is to reach a decision only on the basis of what is in issue and what has been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. Its breach will most likely lead to a perverse decision – Mogaji Vs Odofin (1978) 4 SC 91, Adeleke vs Iyanda (2001) 13 NWLR (Pt.729) 1, Okoko vs Dakolo (2006) 14 NWLR (Pt 1000) 401, Tippi Vs Notani (2011) 8 NWLR (Pt 1249) 285.

Counsel to the Appellants accused the lower Court of employing double standards in its assessment of the testimonies of the witnesses called by both parties in that while it rejected the testimonies of the third and fourth plaintiff witnesses as hearsay evidence, it believed the testimonies of the first, second and seventh defence witnesses which were also hearsay evidence. Counsel also complained that the lower Court accepted and relied on evidence of the first defence witness led on facts not pleaded. By way of emphasis, it was not the submission of the Counsel to the Appellants that the lower Court wrongly rejected the testimonies of the third and fourth plaintiff witnesses as hearsay evidence; his submission was that the lower Court wrongly accepted the evidence of the first, second and seventh defence witnesses which he said were also hearsay evidence and that the lower Court relied on the unpleaded evidence of the first defence witness. Thus, the best that this Court can do on this complaint of the Appellant is that it will expunge the evidence of the first, second and seventh defence witnesses. This Court will not admit the evidence of the third and

fourth plaintiff witness on the strength of the complaint. I must say that I fail to see how the rejection of the evidence of the first, second and seventh defence witnesses aids the case of the Appellants in this appeal. As stated above, the onus of proof in this matter before the lower Court, being a land matter, was on the Appellants and it is settled that the rejection of the case of the defence would not discharge the burden on the claimant to prove his case to entitle him to judgment – Bornu Holdings Co Ltd Vs Bogoco (1971) All NLR 324, Ewulu Vs Nwakpu (1991) 8 NWLR (Pt 210) 487. This complaint of the Appellants is thus neither here nor there and it cannot further the case of the Appellants in this appeal.

It was also the complaint of the Appellants that the lower Court failed to record or make note of the proceedings that took place during the visit to the locus in quo and in the course of which the first plaintiff witness gave further evidence in proof of the case of the Appellants and that the lower Court completely ignored this evidence of the first plaintiff witness in its evaluation of the case of the parties. It is clear from the records of

appeal that the lower Court undertook a visit to the locus in quo at the request of the Counsel to the Appellants on the 2nd of January, 2014. The record of what transpired at the locus in quo is not contained anywhere in the records of appeal.
It is obvious from the records of appeal that the first plaintiff witness gave further evidence during the visit to the locus in quo and the notes of the evidence, if any, are not part of the records of appeal. The records show that at the resumed proceedings on the 2nd of January, 2014, upon the return from the visit to the locus in quo, Counsel to the Appellants urged the lower Court to note the evidence given by the first plaintiff witness at the locus in quo but that the lower Court ignored the request. The records show that the Counsel to the parties addressed the lower Court on the admissibility and usefulness of the evidence given by the first plaintiff witness during the visit to the locus in quo in their respective final addresses. The lower Court made no reference to the evidence given by the first plaintiff witness during the visit to the locus in quo in its evaluation of the case of the parties and he

gave no reason therefor, but rather relied on what it perceived during the visit in ascribing probative value to the respective cases of the parties.

It is not in contest that a trial Court possesses the power to visit the locus in quo of a matter. This power is given statutory backing in the provisions of Section 127 (2) of the Evidence Act – Chukwuogor Vs Obuora (1987) 3 NWLR (Pt 61) 454, Olawore Vs Olanrewaiu (1998) 1 NWLR (Pt 534) 536, Igwe Vs Kalu (2002) 5 NWLR (Pt 761) 678, Okpala Vs Okoli (2011) 1 NWLR (Pt.1229) 563. There are two alternate procedures to be followed as prescribed by Section 127 (2) of the Evidence Act 2011 with regard to inspection of locus in quo and these are:
i. the Court shall either be adjourned to the place where the subject matter of the said inspection may be and proceedings shall continue at the place until the Court further adjourns back to its original place of sitting; or
ii. the Court shall attend and make an inspection of the subject matter only, evidence, if any, of what transpired there being given in Court afterwards.
The Court need not record which of the two options it proposes to adopt when it

pays a visit to the locus in quo – Chukwuogor Vs Obuora (1987) 3 NWLR (Pt 61) 454, Unipetrol (Nig) Plc Vs Adireje (WA) Ltd (2005) 14 NWLR Pt 946) 563, Nnadi Vs Amadi (2011) 4 NWLR (Pt 1238) 553. Speaking on the procedure to be adopted on a visit to locus in quo, Muhammad, JSC explained in Igwe Vs Kalu (2002) 5 NWLR (Pt 761) 678 at 709 B-G thus:
‘A visit to the locus in quo is not for an additional hearing for all the witnesses to be assembled. The witnesses had already given evidence. The Court is going there to see for itself what had been testified by the witnesses. If it needs any further explanation, the parties and there counsel are there to give it. And it is permitted at the visit of the locus in quo for the Court to take notes of inspection and ask questions about features it had been told by witnesses in Court to exist on the land. After the inspection, the Court will re-assemble and hear evidence from witnesses who if counsel or parties request shall be cross-examined. In any event, the Court can choose to conduct the proceeding at the locus in quo. In the instant case, the trial Court visited the locus in quo and heard witnesses there. Counsel

were asked to cross-examine the witnesses which they declined. The Court recorded all that transpired there and when it reassembled, the notes were read to the hearing of all the parties and their respective counsel. Both counsel accepted that the notes were correct. After the notes of inspection were certified correct by counsel of both parties, the Court adjourned the case for further address. There was nothing wrong with this procedure.’
On such a visit, the Court does not cease to be a Court because it is on inspection away from the Court house and statements made thereat are as much oral items of evidence as if they were made in the Court room and the trial Court can take them into consideration without observing the provisions of Section 205 of the Evidence Act which provides that oral evidence should, with specified exceptions, be taken on oath – Briggs Vs Briggs (1992) 3 NWLR (Pt.228) 128, Okunrinmeta Vs Agitan (2002) 2 NWLR (Pt 752) 565, Obim Vs Achuk (2005) 6 NWLR (Pt 922) 594. It is incumbent on the Court that conducts a visit to the locus in quo to make detailed record of what transpired at the visit in its record of proceedings so as to

enable it refresh its memory when it comes to writing its judgment and assist it in its consideration and evaluation of the evidence adduced before it – Chukwuogor Vs Obuora (1987) 3 NWLR (Pt 61) 454, Briggs Vs Briggs (1992) 3 NWLR (Pt 228) 128, Unipetrol (Nig) Plc Vs Adireje (WA) Ltd (2005) 14 NWLR (Pt.946) 563. This is because a visit to the locus and the proceedings or inspection thereat form part of the trial, and a trial Judge has a duty to observe the rules of practice and procedure of the Court as well as the law of evidence and these certainly include having records of notes taken by the trial Judge at the inspection – Chukwuogor Vs Obuoru (1987) 3 NWLR (Pt.61) 454, Obim Vs Achuk (2005) 6 NWLR (Pt.922) 594, Baba-Iya Vs Sikeli (2006) 3 NWLR (Pt 968) 508. It is obvious from the records that the lower Court breached all the above stated rules governing a visit to the locus and it made no records of and no reference to the evidence which Counsel to both conceded was adduced by the first plaintiff witness at the locus in quo.

As stated earlier, the lower Court rejected the testimonies of the third and fourth plaintiff witnesses as hearsay evidence and

this finding not having been appealed against, this Court cannot consider the testimonies of these witnesses. This leaves the testimonies of the first, second and fifth plaintiff witnesses and the two exhibits tendered by the Appellants in proof of the case made out by them on the pleadings. It is my view that none of the testimonies of these witnesses or of the exhibits discharged the onus on the Appellants in this case; they did not answer the question that was germane to the success of the case of the Appellants in this matter – how did the late father of the Appellants acquire ownership of the land in dispute? The case of the Appellants on the pleadings was that their late father purchased the land in dispute from one Alhaji Magaji Unguwar Jaji about fifty years ago for Thirteen Pounds Ten Shillings in the presence of witnesses and later developed same. None of the first, second and fifth plaintiff witnesses gave evidence that they witnessed the purchase of the land and they gave no direct evidence of the payment of the purchase price by the late father of the Appellants to his said vendor. The two exhibits, documents emanating from the Area Court II of

Katsina State in Case No 400/89, were issued upon the sharing of the Estate of the late father of the Appellants and are not documents of the tide of the late father of the Appellants to the land and property in dispute. They did not prove purchase of the land by the late father of the Appellants and they were issued on the presumption that the late father of the Appellants owned the land and property in dispute. They do not prove the case of the Appellants on the ownership of the land and property in dispute by their late father.

The best that can be said of the case of the Appellants on the strength of testimonies of these witnesses and on the exhibits is that their case was equally as good as that of the Respondent and this is after expunging the evidence of the first, second and seventh defence witnesses. In an action for claim of ownership of land, the onus lies on the party claiming title to satisfy the Court that he is the exclusive owner of the land and that he is entitled on the evidence brought by him to a declaration of ownership of the piece of land claimed – Owhonda Vs Ekpechi (2003) 17 NWLR (Pt.849) 326, Jija Vs Shande (2005) 9 NWLR (Pt

931) 543, Yusuf Vs Adegoke (2007) 11 NWLR (Pt.1045) 332, Dim vs Enemuo (2009) 10 NWLR (Pt.1149) 353, Maigari Vs Mailafiya (2011) 1 NWLR (Pt.1228) 379. The law requires a claimant to prove his ownership to land or at least a better title than that of the defendant and the burden on a claimant is established on a balance of probabilities or preponderance of evidence – Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148. It follows therefore that a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Onwuka Vs Ediala (1989) 1 NWLR (Pt.96) 182, Dibiamaka Vs Osaliwe (1989) 3 NWLR (Pt.107) 101 at 113, Jiaza Vs Bamgbose (1999) 7 NWLR (Pt 610) 182, Mbani Vs Bosi (2006) 11 NWLR (Pt.991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt.1014) 71.

A case is decided on the totality of evidence adduced. Therefore, if on any given issue, the evidence of the claimant only be as good as that of the defendant so that there is an equilibrium, it is the party on whom rests the burden of proof that fails. This is because

the evidence does not preponderate in such party’s favour – Ezukiwu Vs Ukachukwu (2000) 1 NWLR (Pt 642) 657, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt 1127) 194. This was explained by Omosun, JCA in Igwe Vs Alozieuwa (1990) 3 NWLR (Pt 141) 735 at Page 751 thus:
“It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court or tribunal of the probability of his case rather than that of the opponent on the point in issue …”
Thus, it is not enough for a claimant asking for a declaration of ownership of land to set up a case which is a “little more probable” than the case put forward by the defence, or of which the highest that can be said is that in the absence of better evidence, there are some grounds for accepting it. It is not an argument that the scales are evenly weighted, for evidentially in that case he does not discharge the onus – Nwokafor Vs Udegbe (1963) l SCNLR 184, Odiete Vs Okorie (1973) NMLR 175, Owoade Vs Omitola (1988) 2 NWLR

(Pt.77) 413, Sarhuna Vs Lagga (2002) 3 NWLR (Pt.754) 322, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1. In Adenitan Vs Alao (1992) 2 NWLR (Pt 223) 350, Niki Tobi, JCA (as he then was) put the issue thus at pages 367-368 H-A:
“In a claim for a decree of declaration of title to land, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiff is the exclusive owner.
Where the claim of the plaintiff to ownership is tenuous, vague, lacking intimate tendentiousness to the property claimed, the action must fail. Similarly, a claim to title by a plaintiff which is based on mere speculation or which appears merely more probable to the case of the defendant without really proving definite acts of ownership cannot succeed. It is not enough for plaintiff in an action for declaration of title to land to set up a case which is a little more probable than the case put forward by the defendant, or of which the highest that can be said is that in the absence of better evidence, there are some grounds for accepting the plaintiff’s case.”

It is thus my

view that the evidence of the first, second and fifth plaintiff witness and the documentary exhibits tendered by the Appellants cannot, in the circumstances of this case and on their own, sustain the claims of the Appellants in this matter. This then raises the issue of the importance of the additional evidence given by the first plaintiff witness during the visit of the lower Court to the locus in quo and the errors committed by the lower Court in not taking notes of the evidence and in not relying on same in its evaluation of the cases of the parties, and in discountenancing it without stating any reason for doing so. The law is that the decision of a Court will not be vitiated or annulled merely for the reason of incorrect procedure or wrong steps taken when the Court paid a visit to the locus in quo unless it is shown that such wrong steps materially affected the decision of the Court – Osolu Vs Osolu (1998) 1 NWLR (Pt 535) 532. It is my view that where a trial Court ignores evidence given at the locus which a party considers vital to his case, it will be difficult for an Appellate Court to uphold a decision given on the strength of such omission unless it

is shown that the evidence would not have materially affected the decision of the lower Court.
Unfortunately, the notes of the evidence given by the first plaintiff witness at the locus in quo have not been produced to enable this Court determine whether or not it would have materially affected the decision of the lower Court by preponderating the evidence led by the Appellants over that of the Respondent and thus entitling the Appellants to judgment.

justice – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217, Febson Fitness Center Vs Cappa Holdings Ltd (2015) 6 NWLR (Pt.1455) 263. This Court must, in the circumstances, interfere with the decision of the lower Court in the instant case as it ignored evidence and shut its eyes to the obvious.

It is settled that the proper steps for an Appellate Court to take where the lower Court has failed to properly evaluate all the evidence led by parties at the trial is either to order a retrial or carry out the evaluation of the evidence itself – Orianwo Vs Okene (2002) 14 NWLR (Pt 786) 156, Wachukwu Vs Owunwanne supra, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522. In this case, the notes of the evidence led by the first plaintiff witness at the locus in quo are not available and thus the only just order this Court can make is one ordering a retrial of the matter by the lower Court.

It is for these reasons that I find merit in this appeal and I allow it. I hereby make an order setting aside the judgment of the High Court of Katsina State in Suit No KTH/17/2013 delivered by Honorable Justice Abdullahi Yusuf on the 5th of

March, 2014. I direct that the case file of the matter be remitted to the Chief Judge of the High Court of Katsina for re-assignment to another Judge for hearing de novo. These are my orders in this appeal.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, UWANI MUSA ABBA AJI JCA and am in agreement that the Appellants have proved their title to the land in dispute. The trial judge, as set out comprehensively in the leading judgment, was in grave error to have held otherwise. I also allow this appeal and set aside the judgment of the lower Court.

Appearances:

ABDUL ALIYU, ESQ.For Appellant(s)

A.D. UMAR, ESQ.For Respondent(s)

Appearances

ABDUL ALIYU, ESQ.For Appellant

AND

A.D. UMAR, ESQ.For Respondent

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