TIDI YAZZA & ORS v. JAMES KWAGA & ANOR
(2013)LCN/6444(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of July, 2013
CA/J/81/2010
RATIO
DUTY OF COURT: WHETHER THE DUTY TO EVALUATE AND ASCRIBE PROBATIVE VALUE TI TESTIMONIES OF WITNESS IS VESTED IN THE TRIAL COURT
It is settled law that evaluation of evidence and ascription of probative value to the testimony of a witness is within the exclusive domain of the trial court that heard and watched the witness testify before it. The law on the issue of credibility of witnesses is that where a question before an appellate court which has not seen the witnesses is in issue, it must defer to the opinion of the trial court. In other words, in such cases, the opinion of the trial court ought to be preferred except it is demonstrated that the inferences drawn by the trial judge were not supported by the evidence and the facts before him, or were perverse. See Dim V Enemuo (2009) 4 SCNJ 199; Agbi V Ogbeh (2006) 11 NWLR (Pt. 990) 65; Nnorodim v Ezeani (2001) 5 NWLR (Pt. 706) 203; Sagay v Sajere (2000) 6 NWLR (661) 360; Abba v Ogodo (1984) 1 SCNLR 372. PER JUMMAI HANNATU SANKEY J.C.A.
ON WHOM LIES THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
In a claim for a declaration of title to land, like in all civil matters, the onus is on the plaintiff to prove his case. In the process, he must rely on the strength of his case and not on the weakness of the defence, except where the weakness of the defendant’s case tends to strengthen the plaintiff’s case. Unless a defendant files a counter-claim, the plaintiff has the primary duty to establish his claims by credible and consistent evidence in accordance with his pleadings. He must satisfy the court that he is entitled, on the evidence brought by him, to the declaration claimed. See Nwokido V. Okanu (2010) 1 SCNJ 167; Odofin V. Ayoola (1984) 11 SC 72; Okafor V. Idigo V. Idigo (1984) 1 SCNLR 481.
Where a plaintiff’s existence on a land acquired by him either through a grant, settlement, sale or conquest, as the case may be, is challenged, he has an option of five ways under the law to prove such title as follows:
(a) By traditional evidence;
(b) By production of documents of title duly authenticated or executed;
(c) By acts of ownership over a sufficient length of time, numerous and positive enough as to warrant the inference of a true ownership;
(d) By acts of long possession and enjoyment;
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See Fasoro v. Beyioko (1988) NWLR (pt. 16) 263; Amajideogu v. Onanaku (1988) 2 NWLR (Pt. 78) 614; Idundun v. Okumagba (1976) 9-10 SC 227; Piaro v. Tenado (1976) 12 SC 31. PER JUMMAI HANNATU SANKEY J.C.A.
THE REQUIREMENT OF THE LAW REGARDING THE ONUS PLACED ON A PARTY CLAIMING A DECLARATORY RELIEF
In declaration of title to land, the Plaintiff should furnish the court with evidence on how he acquired the land and other evidence of such transaction must be placed before the court. This evidence in this situation and in all other civil situation is usually on the balance of preponderance of evidence.
See Sections 131(1) (2), 132, 133(1) 134, 135(1) of the Evidence Act, 2011 (as amended).
It has been held by our apex Court that in order to succeed in a claim for a declaration of title to land, the court must be satisfied as to:-
- Theprecise nature of the title claimed that is to say, whether it is title by virtue of original ownership, or customary law of land, possession or otherwise.
- Evidenceestablishing title of the nature claimed must be credible, convincing and equivocal.
See Obineche V. Akusobi (2010)12 NWLR (Pt. 1208) 383 SC.
There is no doubt that a claim for declaration is purely and absolutely within the discretionary wisdom of the court, however, the Plaintiff must show the existence of a legal right, or a claim which the court is prepared to recognize and which if validly made, the court is prepared to give legal recognition by exercising its discretion in favour of such a person.
See Orlu V. Hogo-Abite (2010) 8 NWLR (Pt. 1196) 307 SC.
The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant in the present appeal is trite. A claim for a relief of declaration, whether of title to land or not, is not established by an admission by the Defendant, because the Plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a court does not grant declaration on admission of parties, because the court must be satisfied that the Plaintiff on his own evidence is entitled to the relief claimed.
See Ayanru V. Mandilas Ltd. (2007) 10 NWLR (Pt. 1043) 462, David Fabunmi V. Abigail Ade Agbe (1985) 1 NWLR (Pt. 2) 299 at 318, Kodilinye V. Odu (1935) 2 WACA 336, Woluchem V. Gudi (1981) 5 SC. 291, Gundairo & Ors. V. Okanlawon & Ors. (1963) 1 All NLR 358, Bello V. Eweka (1981) 1 SC 101.
In Ngene V. Igbo (2000) 4 NWLR (Pt. 651) 131, the Supreme Court held thus:-
“Where in a claim of declaration of title, the Plaintiff relies on derivative title, he must not only plead and prove how he derived his title but also the title of the person from whom he claims to have derived title. It is only if, such Plaintiff can establish the title of the person from whom he claims, that the burden of proving title would have been discharged…”
See also Thomas V. Holder 2 WACA, Chukwu V. Wuche (1976) 9-10 SC 173, Oronsaye V. Ogula (1976) 6 SC 21.
Now, it is a trite law devoid of academic exercise that in a case where a party is seeking a declaration of title to land, the onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title claimed.
In this regard, the Plaintiff must rely on the strength of his own case and not on the weakness of the Defendant’s case. If this onus is not discharged, the weakness of the Defendant’s case will not help him and the proper Judgment will be for the Defendant.
see Elema v. Akenzua (2000) 13 NWLR (pt. 683) 92, Kodilinye v. Odu (1935) 2 WACA 336, Bello v. Eweka (1981) 17 SC. 101, Odunukwe v. Otom (2010) 18 NWLR (Pt. 1225) 404 SC, Gbadamosi v. Dairo (2007) 3 NWLR (pt. 1021) 282, Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 734, Onissaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517, Ajiboye V. Ishola (2006) 13 NWLR (pt. 998) 628, Olodo v. Josiah (2010) 18 NWLR (pt. 1225) 653 SC. PER SOTONYE DENTON WEST, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. TIDI YAZZA
2. TIDI JAMES
3. STEPHEN TIDI – Appellant(s)
AND
1. JAMES KWAGA
2. KWADA MINTA – Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal challenges the decision/judgment of Honourable Justice A. B. Mubi of the High Court of Justice Adamawa State Holden at Mubi Judicial Division wherein this Lordship dismissed the plaintiffs (now Appellants’) suit against the Defendants/Respondents. The Appellants as plaintiffs had in their writ of Summons and Statement of Claim sought for the following reliefs against the Defendants, jointly and severally:-
1. A declaration that the Plaintiffs are entitled to all that piece of land lying and situate at Lughu Ward of Michika Town measuring about 150m x 150m and bounded by Vandi Tihale family on the south, by Ayuba Zirawaga and Ali Kwada family on the West, by the plaintiffs family house on the East and by Tizhe Tari Tia and Tizhe Pembi’s family on the North.
2. An order of perpetual injunction restraining the Defendants either by themselves servants, agents or privies from further trespassing into the Plaintiffs land aforesaid.
3. General damages in the sum of N200,000.00 against the 1st Defendant for trespass.
4. General damages in the sum of N300,000.00 against the 2nd and 3rd Defendants.
5. The cost of this suit”.
Pleadings were exchanged by the parties in the Lower Court and at the hearing of the case, the Plaintiffs/Appellants called four witnesses while the Defendants/Respondents called three as at July 2006. Henceforth, the case subsequently suffered series of adjournments because of the absence of parties and the respective required Counsel until three years later on the 31st March, 2009, when the Court suo motu adjourned same to the 14th of May, 2009, for judgment. Subsequently, the learned Counsel to the Defendants then brought an Application on the 9th of April, 2009 to arrest the judgment which motion was dismissed for being alien to our jurisprudence. The learned trial judge then proceeded to deliver the judgment on the 16th day of September, 2009 dismissing the case of the Plaintiffs.
Piqued by the judgment, the Plaintiffs/Appellants (who shall henceforth be referred to as Appellants) on the 27th day of October, 2009, filed their Notice of Appeal dated 16th of October, 2009 with three Grounds. Upon transmission of the Record of Appeal hereto, the Appellants by a motion dated and filed on the 6th day of November, 2011 were granted leave to file their brief of argument out of time. Owing to the difficulties encountered in serving the Respondents with the Court processes, the Appellants were further granted leave to effect substituted service on the Respondents by pasting all the processes in the Appeal at the last known Address/abode of the 1st and 2nd Defendants/Respondents at Villegwa Village Area, Michika Local Government Area of Adamawa State.
Indeed up to the 9th day of May, 2013 when this Appeal was heard the Respondents have not filed their Respondents’ Brief culminating in our being obliged to accede to the application of learned Counsel to the Appellants to hear the Appeal solely on the Appellants’ Brief in line with Order 18 Rule 10(1) of the Court of Appeal Rules, 2011. It would be recalled that the name of the 3rd Respondent had been struck out on 28th day of September, 2012 following his demise.
Before proceeding to delve into the arguments of the respective learned Counsel on the Appeal, it is only appropriate at this juncture to have a brief a resume’ of the facts of the case as can be gleaned from the pleadings of the parties. The case of the Appellants who were fathers and his two sons in that they resided in their Tidi Yazza family compound Lughu ward of Michika Town. The three Respondents who are said to be of Kwaga clan of the Higgi people also resided in their compound around Michika Town.
According to the Appellants, their ancestors migrated from Ghye and settled at the present place called Lughu Ward of Michika Town and that the sons of Higgi who migrated from Ghye were three namely: – KWABE, KWAGA and KWACHE and they now constitute the main Higgi Clan in Michika Town. As regards their immigration routes and pattern, KWACHE migrated North-wards and settled in Sangere/Central Area of Michika Town, KWABE towards the south and settled in the present lughu Area of Michika Town while KWAGA migrated toward the West and settled in Villegwa and sparsely scattered thereabout.
The Appellants’ present settlement is said to be made up a large compound which has been develop over time as they inherited the land from their great grandfather YAZZA TSALA who founded and cultivated the area over 100 years ago as a settlement. Appellants gave their boundary neighbours as VANDI TIHALE FAMILY on the South, AYUBA ZIRAWAGA AND ALI KWADA FAMILY on the West, the Appellants houses and settlement on the East and TIZHE TARI TIA and TIZHE PEMBI’S FAMILY on the North adding that the land the subject matter of the dispute is 150m x 150m in dimension by approximation and forms part of the land described by the boundaries afore-stated.
Upon YAZZA TSALA founding and cultivating the land so described above, he was approached by his friend one TERI TUMBA for a plot of land to allow him settle temporarily within the area in despite to enable him undertake his hunting and farming ventures outside the land. As bosom friends, the Appellants’ grandfather obliged Teri Tumba and gave him a small piece of land upon which to build some huts. Before the Appellants’ grandfather died in 1932, he entered into an oath with his bossom friend (Teri Tumba) not to part with each other and for the Yazza Tsala family to always accommodate his (Teri Tumba’s) family members whenever the need arose. This development was communicated to the Appellants with specific instructions to adhere to the terms of the covenant.
Teri Tumba predeceased Yazza Tsala leaving behind an only son as Tumba’s successor (Vandi Tumba) who subsequently left Yazza Tsala family area to join his (Vandi’s people of KWAGA CLAN and settled in Villegwa and it was not until 1997 that the Appellants’ family became aware of that Vandi Tumba also died and left an only son (Sini Vandi). In keeping with the grand father’s covenant with Sini Vandi’s grand father, the Appellants invited Sini Vandi and intimated him of the oath between their grand fathers and sought from Sini Vandi whether he would want to settle with the Appellants an offer which Sini Vandi rejected on the ground that he was not aware of such an oath or bound by it.
In order to free themselves, from there grandfathers oath, the Appellants offered to pay Sini Vandi compensation for the land which he accepted and the Appellants became absolute owners of every piece of land within the Yazza Tsala family land. The Appellants pleaded the document evidencing the transaction between them and Sini Vandi and averred further that they have been in absolute control of every piece of land within the Yazza Tsala family land since 100 years before litigation and had developed same without any interference or any adhere claim until sometime in the year 2000 when the 1st Respondent trespassed into a portion of the land measuring 150m x 150m within their Appellants’ aforesaid family land and started cultivating same. When the 1st Respondent was confronted by the 1st Appellant to desist from further trespass, the 1st Respondent refused where upon the 2nd Appellant sued the 1st Respondent at the Upper Area Court, Michika in suit No.MCJ/CVF1/23/2000 over the 1st Respondent’s act of trespass.
At the Michika Area Court, the 1st Respondent admitted trespassing on the land but asserted that it was upon the permission of the 2nd and 3rd Respondents who claimed ownership of the land and when called, the 2nd and 3rd Respondents admitted the 1st Respondent’s assertion and further claimed that the piece of land in dispute belongs to them through inheritance. Hence the claim of the Appellants as contained in their Writ of Summons and Statement of Claim.
The Respondents case on the other hand as can be deduced from their Joint Statement of Defence after admitting paragraphs 1, 2, 3, and denying paragraphs 4 – 23, of the Appellants Statement of Claim; is that the 1st, 2nd and 3rd Appellants’ ancestors did not migrate from Ghye but from Yazza Village in Borno State and settled under the Defendants’ ancestors and were accommodated into the Respondents’ family. They averred that not all the three Clans of Kwabe, Kwaga and Kwache migrated from Ghye as Kwache and Kwaga first settled in Lughu thereby forming the present Lughu ward of Michika while the Kwabe clan from Yazza village of Borno State came and settled at Madzi thereby forming the present Madzi ward of Michika.
According to them, it was Madee the Respondents ancestor who first cleared the disputed land and later invited Tsala to stay near him as a friend. Tsala also later invited Yazza with the consent and permission of Madee to have temporary settlement under him (Madee). The Appellants also claimed that all those named in paragraph 8 of the settlement of claim are not boundary neighbours but one and the same people with the Appellants.
As regards the dimension of the land, the Respondents also alleged that it is more than 150m x 150m by approximation and forms part of the disputed land belonging to the Respondents. They denied that Teri Tumba ever requested a plot land from of Yazza Tsala but rather it was Madee the grand father of the 2nd and 3rd Respondents who gave Yazza Tsala after Yazza Isala married the daughter of Madee. Teri Tumba also known as Teri Tumbara Madee grew up with his late father Madee where he farmed the disputed land with his late father and has never requested any piece of land from Yazza Tsala.
The Respondents also denied that there was any time oath was taken between Yazza Tsala and Teri Tumba’s family members since there was no such relationship existing between them. As for Vandi Tumba, they averred that he hailed from Kwaga Clan and has been in Lughu ward Michika with his settlement and not Villegwa. Vandi, they added, is the grand son of Madee who inherited his late father (Vandi Tumba’s) land and has never settled amongst the Appellants since there was no friendship between the late father of Appellants and his (Vandi’s) father. Reacting to the averments/pleadings of the Appellants in paragraphs 18 and 19 of their statement of claim, the respondents alleged that Sini Vandi was never offered any compensation by the Appellants family rather of was Kwada Furi and Kwatri Tumba who are of the same grand father with Sini Vandita who sued Sini Vandita before Area Court No. 2 Michika because the latter illegally sold the land in disputes, which is a family land belonging to them, to the 2nd and 3rd Respondents.
In the Area Court case aforesaid, Tidi Yazza testified as DW1 to the affect that the land in dispute is that of the Respondents. The Area Court Judge in his judgment revoked the illegal and held that the land in dispute belonged to Kwadi Furi, Kwatri Tumba and Sini Vandita (the 2nd and 3rd Respondents in this Appeal). The Respondents further averred, and insisted from the foregoing that the land in the dispute now in this Court, is the same as adjudged to them in the proceedings of the Area Court 2 in suit No.CV/11/99 which they pleaded.
On response to paragraphs 20 and 21 of the Appellants’ Statement of Claim, the Respondents further averred that there was never a case of trespass between the 2nd Appellant and 1st Respondent before the upper Area Court Michika rather the case was between 3rd Plaintiff and 1st Defendant/Respondent which case was for declaration of title and same was later struck out because 1st Defendant was wrongfully sued.
The Respondents also denied paragraph 22 of the Appellants statement of claim and contended that there was no where before the Area Court Michika that the 2nd and 3rd Respondents admitted authorizing 1st Respondent to trespass into the land of the 1st Appellant but they (the 2nd and 3rd Respondents) asserted ownership of the disputed land through inheritance because the land was first cleared by their grand parent late Madee and same was later in inherited by the following:- Tia Madee, Tumbara Madee, Watu Teri Tumbara Madee, Kwatri Tumbara Madee, Kwada Fure down to the 2nd and 3rd Respondents and other brothers.
They finally averred that they shall contend at the trial that Appellants were/are not entitled to the reliefs sought in paragraph 23 of their (Appellants’) Statement of Claim on the grounds that their suit was frivolous, vexatious and amounted to an abuse of Court process and accordingly should be dismissed with costs.
It would be recalled that Innocent Da’agba Esq. who settled the Appellants’ brief of argument formulated two issues as calling for resolution in this Appeal which issues are reproduced hereunder as follow:-
“1. WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT IN LAW TO HAVE BASED HIS JUDGMENT SOLELY ON THE EVIDENCE OF THE PLAINTIFFS WITHOUT HAVING REGARD TO THE EVIDENCE OF DEFENDANTS BEFORE ARRIVING AT HIS DECISION TO ENTER JUDGMENT FOR THE DEFENDANT’S AGAINST PLAINTIFFS (Distilled from Grounds 1 and 3).
“2. WHETHER THE DEFENDANTS/RESPONDENTS WERE ENTITLED TO HAVE JUDGMENT ENTERED FOR THEM HAVING NOT MADE OUT ANY COUNTER-CLAIM AGAINST THE PLAINTIFFS (Distilled from Ground 2)”.
ARGUMENTS OF COUNSEL ON THE ISSUES:-
Arguing issue one (1), the learned counsel for the Appellants pointed out that there was a clear miscarriage of justice when the trial court failed to properly evaluate or indeed evaluate the evidence adduced by the parties at the trial before arriving at its decision. The learned counsel recalled that at the trial, the Appellants called four witnesses while the Respondents called three and that the learned trial judge having closed the case of the Defendants by order, he was bound to review the evidence adduced at the trial, evaluate them and ascribe probative value to them before arriving at his decision. For this submission he placed reliance on Mogaji V. Odofin (1978) 4 S.C. 91 at 93 and Adebayo V. Adusei (2005) ALL FWLR (PT.240) 152 at 176 para. D-177 para. A.
Alluding to the nature of the Appellants claim before the lower court, as contained in pages 9-11 and 15-16 of the record of proceedings, he relied on Idundun V. Okumagba (1976) 9-10 S.C. 227 at 242 – 250 and Onwugbufor V. Okoye (1996) l SCNJ 1 at 20-21; to contend that the Appellants led evidence to establish their traditional history of the land with boundaries and how the land was founded by the first person who cleared same adding that traditional evidence is one of the five ways of proving title to land before the Courts. On what a party relying on traditional evidence in land matters should plead and prove, he cited the case of Dioha V. Ohia (2005) ALL FWLR (pt 291), 713 at 721 paras. A-D, insisting further that the Appellants led such evidence through PW1 at page 29 lines no 15-30; lines 9-17; PW2 at page 32 lines 22-31; lines 9-17, PW3 on page 35 lines 15-22 and PW4 at pages 38-41 of the Records.
He summarized the case of the Appellants as borne out of the evidence of the Appellants and Respondents on record and submitted that having established the trend of their Appellants claim, the court was in error to have only singled out the evidence of the Appellants’ witnesses and disbelieved them after labeling them as “telling lies”, “very unreliable”, “manifestly unreliable” and “most unreliable”; without a critical examination of the evidence of the Defence, because in deciding the veracity of evidence of traditional history, demeanour alone is not a proper guide (Ogun V. Akinyelu & Ors. (2005) ALL FWLR (Pt. 24) 601 at 623 refers). This was particularly so, the learned Counsel maintained, in the face of Exhibits ‘A’ “A1” and ‘B’ which were tendered and admitted but the Court ignored on the ground that the PW4 through whom they were tendered was “most unreliable”.
Still on this issue, the learned Counsel for the Appellant argued that oral evidence of various witnesses before the court is different in value from documentary evidence tendered and admitted through such witnesses and that the trial Court must express one way or the other its opinion on the weight to be attached to such document(s), which the trial court failed to do in this case. The learned Counsel further alluded to the findings of the court at pages 53-54 of the Record which rejected the totality of the evidence led by the Appellants on the ground that the events they testified to occurred before they were born and submitted that traditional history as the name connotes is the story of events in the life of an individual or community or nation handed down by word of mouth then through generations and the narrator need not witness such occurrence in order to be believed especially if such an account is viewed against the back ground of section 33 (1) (c) of the Evidence Act, CAP. E14 LFN, 2004; which was applicable as at time the suit was instituted.
On evidence of the PW2 as recorded in pages 32 and 33 of the Records, the learned counsel for the Appellants argued that oath taking on the authority of Umeh Vs. Okoronkwo (1996) 10 NWLR (Pt. 477) 133 at 144 paras. A-B, is one of the methods recognized by custom to establish the truth of a matter and as practices accepted by many tribes and ethnic groups in Nigeria. He therefore maintained that it was due to the fear of not breaching the oath that the Appellants called on the Pw2 (Sini Vandi) to discharge themselves of the obligations of the oath by paying N13,000.00 (Thirteen Thousand Naira) as per Exhibits ‘A’ and ‘A1′ for the piece of land situated within their area, which facts were not evaluated by the trial court.
As for the evidence adduced by the Respondents it was contended by the learned counsel for the Appellants that it fell short of the requirements of declaration of title under our customary land law as the persons named as having exercised control of the land are not only conflicting but their evidence tended to strengthen the case of the Appellants especially on the location of Kwabe, and Kwage claims and the location of their respective pieces of land which the Appellants houses are closer to the Appellants land situated at lughu as opposed to the Respondents which is situated at Villegwa far from the land in dispute. Refer to the evidence DW1 at page 44 lines 22-23, lines 25-26, DW2 at page 45 lines 15-16 & page 46 lines 8-10.
On the foregoing score, he cited Arum V. Nwobodo (2003) ALL FWLR (Pt. 246) 1231 at 1258 paras. E-E; to submit that even if the Appellants historical accounts conflict with those of the Respondents (which he did not concede) on their respective roots of title the court ought to have had resort to acts in recent times over the land to resolve the conflict. The learned counsel for the Appellants pointed out the Appellants’ acts of continuous possession with their houses close to the land, the suing of the Respondents as in exhibit ‘B’ claiming title thereof the admission by the Respondents’ witnesses of their knowledge that the Pw2 had sold the land to the appellants and that the appellants are closer to the land than the Respondents. All which should have informed the court below to resolve the issue in favour of the Appellants.
The learned counsel for the Appellants maintained that the Respondents having failed to establish their root of title by the evidence adduced (incidentally none of the Respondents testified) and having not contradicted the Appellants evidence of traditional holding of the land in dispute, the Court below was said to be in error to have dismissed the Appellants’ claim and rather found for the Respondents. Reference was made to the holding of the trial Court at page 53 lines 15 – 24 of the Records where it upheld the facts adduced by the Appellants in support of their claim submitting on the authorities of Salako V. Dosunmu (1997) 7 SCNJ 278 at 301 and Ndukwe V. Acha (1998) 5 SCN 128 at 36-37; on the duty of an appellate Court to properly evaluate and appraise the evidence adduced by the parties at the trial, where the trial Court failed so to do and came to a wrong conclusion, and called on this Honourable to step into the shoes of the trial Court to allow the Appeal and enter judgment for the Appellants on their claim against the Respondents.
ISSUE NUMBER 2:-
On this issue the learned counsel for the Appellants submitted that the Courts do not make the habit of awarding a party relief not specifically claimed. For this submission he placed reliance on the case of Ekpenyong V. Nyong (1975) 2 S.C. 71 at 181 – 182; and referred us to pages 9 and 10 of the Records which contain mainly the Appellants’ claim before the lower court without any counter-claim by the Respondents nor any evidence led by them counter-claiming the land the subject of the dispute. According to learned counsel, the Respondents in denial of the claim of the Appellants gave a different account on who founded the land and how they (Respondents) came upon same but that the evidence of the Respondents on their traditional history is disjointed as to the names of persons said to have succeeded Madee their alleged founder as well their boundary neighbours.
The learned counsel for the Appellants reiterated that there is no where in the Records that the Respondents specifically gave evidence claiming the land as their witnesses indeed admitted that the land was ‘sold’ to the Appellants by the Pw2 who is their relation. Citing the cases of Yusuf V. Oyetunde (1998) 10 SCNJ 1 at 20 and Tizeonwu V. Onyechi (1996) 2 SCNJ 250 at 260, it was the learned counsel for the Appellant’s further contention that for a Defendant to be entitled to a declaration of title, he must have made a counter-claim as mere failure of the Plaintiff to establish his claim (which he does not concede herein), does not automatically mean that the Defendants would enjoy a declaration of title.
Accordingly, he pointed that the reliance placed by the lower court on the authorities of Sanusi V. Amoyedun (1992) 4 SCNJ 17 ratio 9 at 179 and Nneji V. Chukwu (1996) 12 SCNJ 388; to enter judgment for the Defendants, was therefore misplaced in that the trial court did not carry out an evaluation of the totality of the evidence led by the parties before resolving to dismiss the Appellants’ claim and entering judgment in favour of the Respondents. It was therefore their submission from the foregoing that in the face of the glaring errors, the lower court was not on a strong wicket to have dismissed the Appellants’ case and entered judgment for the Respondents.
We were therefore urged to hold so because even where a plaintiff’s claim for declaration of title to land is dismissed it would be wrong to grant a declaration in favour of the Defendant who never claimed for a remedy in the form of counter-claim or cross-action. For this submission he called in aid the dictum of Iguh, JSC; in Ogboni V. Ojah (1996) 6 SCNJ 140 at 153; to urge the court once more to allow the Appeal and enter judgment for the Appellants.
RESOLUTION OF ISSUES
ISSUE NUMBER ONE (1)
In the resolution of this issue it is necessary to allude to the provisions of the Evidence Act (Sections 131 (1) (2); 132; 133(1); 134 and 136(1)) as regards the burden of proof, on whom the burden lies in civil cases and the burden of proof as to particular facts. The Appellants in the lower court having sought for declaration of title, perpetual injunction and general damages against the Respondents, the burden of proof lay on them in the first place because as plaintiffs, they desired the court below to give them judgment as to their right to the piece of land in dispute. More so, it was they who would fail if evidence were not to be adduced by them in the court below. If they adduced evidence which ought reasonably to have satisfied the learned trial judge that the fact sought to be proved had been established, the burden shifted to the Defendants/Respondents against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in their respective pleadings had been settled. Where there were conflicting presumptions the case was the same as if there were conflicting evidence.
Like in all civil matters the Appellants as plaintiff in the lower court were expected to discharge the burden proof of their case on the balance of probabilities see the meaning of burden of proof as provided for under the Evidence Act, per Tobi, JSC in Buhari V. INEC (2008) 19 NWLR (Pt. 1120) 246 at 369-370 paras. F-D. See also Nwavu V. Okoye (2008) 18 NWLR (Pt. 1118) 29 at 64-65; paras. D-P, Per Mohammad, J.S.C.
In law therefore, it is said that the burden of proof oscillates between the plaintiffs and Defendants until all the issues joined in the pleadings have been settled. Thereafter, the court of trial then places the totality of the evidence adduced on the imaginary scale of justice and then would appraise and evaluate them before arriving at a decision one way or the other. See Omorinbola II V. Military Governor, Ondo State (1995) 9 NWLR (Pt. 418) 201. Ogbu V. Wokoma (2005) 14 NWLR (Pt. 944) 118, Adighijie V. Nwaoga (2010) 12 NWLR (Pt. 1209) 419 at 464 paras. A-C 480.
The gravamen of the Appellants case as articulated by learned counsel on this first issue is the failure, neglect and/or refusal of the learned trial Judge to properly evaluate or at all, the evidence adduced by the parties in the lower court. As was rightly argued by the learned counsel for the Appellants, the Appellants at the trial called four witnesses and tendered three documents marked Exhibits ‘A’, “A1” and ‘B’ while the Respondents called three before the Court below suo motu closed the Defendants/Respondents case and adjourned for judgment. In the oft-quoted dictum of Fatayi Williams, J.S.C. (as he then was), in the celebrated case of Mogaji V. Odofin (1978) 4 S.C. 91 at 94 ably cited by the learned counsel for the Appellants:
“…..before a judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believers or accepts and which evidence he rejects, he should first of all put the totality of testimony adduced by both parties on the imaginary scale, he will put the evidence adduced by the plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together.” See Bello V. Eweka (1981) 1 S.C. 101 at 118 – (20) per Eso, JSC of blessed memory who held that in the evaluation process, the trial Judge was expected to set out the issues joined by the parties in the pleadings, assemble the evidence adduced by either party on the issues joined, weigh the evidence in the imaginary scale of justice in order to decipher which of the evidence outweighed or preponderated the other, by the quality or probative value of the testimonies of the witnesses and documentary evidence tendered.
In Sagay V. Esajere (2000) 4 SCNJ 383 at 391, Ayoola, JSC; further stressed the need for trial judges to assess the material evidence placed before them it is not enough to say that they believe or disbelieve the witness(es) without any iota of evaluation upon which such belief is based. What is needed before the Judge can come to such a finding as to who to believe or not to believe notwithstanding the fact that he has a right and duty to decide in his wisdom on such, is to be discreet in evaluating the evidence and ensure that the plaintiff’s case is juxtaposed with that of the Defendants before arriving at a decision. See Ozigbe & Ors. V. Aigbe & Ors. (1977) Vol.11 NSCC 389 at 394; Amokowo V. Audu (1985) NWLR (Pt. 3) 358; per Uwais, JSC (as he then was) and Adebayo V. Adusei (2005) ALL FWIR (Pt. 240) 152 at 176 paragraphs D-177 paragraphs A.
Now, going by all the authorities above cited, it would be recalled that the Appellants pleaded in paragraphs 4 – 22 of their Statement of Claim, their origin and who founded the land in dispute, the mode of acquisition of the land and the names/particulars of the successive owners through whom the land devolved from the founder to the living defendants who were expected to give oral history of the disputed land. Again in paragraph 19 of the statement of claim they have also pleaded acts of possession and ownership of the land numerous and positive enough to warrant the inference that they are owners of the land if proved. Besides, it would also appear that by the same paragraph of the statement of claim, the Appellants had pleaded acts of possession of connected or adjacent land, in circumstances rendering it probable that they are owners of the land in dispute.
In paragraphs 18 and 20 they had further pleaded documents entitling them to the land and acts like initiating proceedings against trespassers. After all, in the land mark case of Idundun V. Okumagba (1976) 9-10 S.C. 227, (1976) 1 NMLR 200 and (1976) NSCC (vol.10) 445 at 455; per Fatayi-Williamsn JSC (of blessed memory as he then was); identified five ways of proving title to land namely:-
1. By traditional history
2. By production of documents of title (Johnson V. Lawanson (1971) ALL NLR 56);
3. By acts of person(s) claiming the land such as farming, selling leasing or renting out the land or part of it extending over sufficient length of time numerous or positive enough to warrant the inference that the person(s) is/are the true owner(s) of the land (Ekpo V. Ita (II NLR 68);
4. Acts of long possession and enjoyment of the land which might be prima facie evidence of ownership of the particular piece of land in dispute. See section 35 of the evidence Act, 2011, and Dacosta V. Ikomi (1958) ALL NLR 394 at 398.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addiction, be the owner of the land in dispute. Section 35 of the evidence Act also refers.
Having laid down the legal principles ingrained in the establishment of party’s right to declaration of title to land, it is only apt to reflect on what the West African Court of Appeal had said as far back of as 1935 per Webber C.J. who interpreted the provisions of the Evidence Act as earlier cited in Kodilinye V. Odu (1935) 2 WACA 335 at 337-338; on the mode of discharging the burden of proof in suits for declaration of title as in our instant case, which decision has been followed in a litany of cases when he posited thus:-
“The Onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the Defendants case. If the Onus is not discharged, the weakness of the Defendants case will not assist him and the proper judgment is for the Defendant, such a Judgment, decrees no title to the Defendant, he not having sought the deceleration. So if the whole evidence in the case be conflicting and somehow confused, and there is little to choose between the rival traditional stories, the plaintiff fails in the decree he seeks and judgment must be entered for the Defendants”. See Kaiyajola V. Egunla (1974) S.C. 55, Enigwe V. Akaigwe (1992) 8 LRCN 486; Adeyeri V. Okobi (1997) 51 LRCN 1529; Adeniran V. Alao (2001) 92 LRCN at 3267 and 3268 per Uwaifo, J.S.C; and Eyo V. Onuoha (2011) 39 W.R.N.I at 26 paras. 30-45.
However, the above proposition of the law notwithstanding, in land matters such as this, even though the Appellants were not expected to succeed on the weakness of the Respondents’ case, the Appellants could rely on the evidence of the Respondents which supported their (Appellants’) case. See Onisaodu V. Elewuju (2006) 13 NWLR (Pt. 998) 517 at 529-530 paras. A-B; per Tabai, JSC and Olabodun v. Lawal (2008) 35 NSCQR 570 at 644.The crucial question that should agitate our minds for an answer at this juncture is whether from the totality of the evidence before the court, the Appellants discharged the onus cast upon them or proved their case as required by the Evidence Act as far as their Claim for Declaration of title was concerned. I must agree with the learned counsel for the Appellants as has already been highlighted and on the authorities of Idudun V. Okumagba (Supra), Onwugbufor V. Okoye (1990) 1 SCNJ 1 at 20-21 and Dioha V. Ohia (2005) ALL FWLR (Pt. 291) 713 at 721 paras. A.C; that the Appellants who relied first of all on traditional evidence of first settlement on the land in dispute ought to lead credible and cogent evidence to establish their claim for declaration of title to the land in dispute. In this wise they were duty bound to prove the following:-
1. How the land was founded;
2. The name(s) of the Ancestor(s) who founded the land and exercised each original acts of possession; and
3. Names of persons on whom the title to the land had devolved before they inherited same.The learned counsel to the Appellants has referred us to particular pages of the record of proceedings where the Appellants led evidence to this effect.
At page 29 lines 10-15 thereof, the Pw1 TIDI TIZZA testified in-chief thus:
“The land in question is near my house. The people I am sharing boundary with in the land are: Ayuba Zira Waga, Ali Tizhe, B=Vandi Tikale, David Pembi. I inherited the land from my father. My father migrated from Zah and settled on the land in question. One Teri Tumba came and lived together with my father. As he was about to leave he made an agreement with my father that whenever his son comes my father should receive him and live together with him. When my sons came to live on the land, I refused because there was agreement on the land”.
At page 30 lines 5-20 the witness also testified in-chief that when his father migrated from Zah to the disputed land he (the father) did not meet any body there on and that: “It is nearly 100 years since my father migrated from Zah to the land in dispute. The name of my father is Yazza Thala”. Teri Tumba his father’s friend was deceased and was the father of Vandi Tumba while Sini Vandi is the son of Vandi Teri Tumba. Vandi Tumba is also deceased.
The witness further stated that after informing his children about the covenant between his PW2’S father and Teri Tumba, he called Sini Tumba the son of Vandi and his (PW2’S) sons gave the said Vandi’s son (Sini Vandi) the sum of N13, 000.00 (Thirteen Thousand Naira) in respect of the piece of land which his grandfather left behind following the said grand father’s demise. Three years after he saw James (the 1st Respondent) entering the land and he therefore sued James and the two other Respondents who sent James (the 1st Respondent) to enter into the land and cultivate same.
Under cross examination the witness admitted that he had a case with one Sini Vandita at the Area Court No. 2. Michika and that he testified as DW1. He denied telling the court that the land in dispute in that court belonged to Sini Vandita but that he told the court that the land belonged to Sini Vandi. He denied knowledge of any person called Madee on further cross examination and admitted that the land he is now claiming is the land he had said belonged to Sini Vandi.
When further cross examined he replied that he did not know whether Kwada Furi and Kwatri Tumba are brothers to Sini Vandi. When further asked whether he knew that Yazza Thala married the daughter of Madee he replied in the negative adding that he did not know when the agreement between Terri Tumba and his father was entered into because he was not born then. When further questioned as to whether the agreement between Terri Tumba and his (PW2’s) family is still binding, he answered in the affirmative. When further questioned he admitted that the 3rd Plaintiff/Appellant is his son and that his said son had a case with the 1st Respondent at the Upper Area Court Michika in respect of the same disputed land. Upon being further questioned on the whereabouts of Sini Vandi he replied Sini was then in at Virakwa, Michika LGA and he knew that this matter was before the Court below. The said Sani Vandi also has interest in the land in dispute he added.
PW2 whose evidence appears at pages 32 lines 15-22 and 30 lines 7-17, stated in his evidence-in-chief that his name is Sini Vandi and lives in Nrakwa Michika. According to him: “I have come to give evidence in respect of a farm land. The farm land is situated at Lugwi (Lughu?) The farmland belongs to the plaintiff Tidi Yazza. My grandfather gave him the land on trust. My grandfather. My grandfather was Terri Tumba. My grandfather has died.” Thereafter his death Tidi, the plaintiff inherited the farmland. It was Tidi who called me and told me that I should now take possession of my grandfather’s farmland. I then took over the land, but I told him I cannot farm so let him give me something and continued using the land. He then gave me N13,000.00. This agreement was reduced into writing my father is dead. I am the only surviving. My father is dead I am only surviving son of my father. The name of my father is Vandi Rah. Vandi Rah is not the same as Vandi Tumba. See page 33 lines if the record.
Under cross examination at page 33 lines 5 – 24 of the records the witness stated that he was not present when his grandfather gave the land to the plaintiff on trust. He did not know how many years since his grandfather gave the land in trust to the plaintiff because he was not born then. On further cross examination he replied that it was about 30 years since Tidi the 1st Appellant told him about the land but he would not know the number years since his grandfather died. The witness insisted that his father farmed on the land though he would not know the number of years, but he was informed by the said 1st Appellant that his (PW2’s) father inherited the land from his (PW2’s) grandfather. He admitted knowing Kwada Frey and Kotri Tumba who are related to him and that the said “Kwada Frey and Kotri Tumba sued me before the Area Court No. 2 Michika in respect of this farmland. That Court (sic) we should divide the land. Tidi Yazza testified before that Court as DW1. I was not satisfied with that decision. I did not appeal against that decision. Tidi Yazza told the court that the farmland belonged to my grandfather. There were three people around when Tidi Yazza handed over the farmland to me. They are: Daniel, my senior brother, Tizhe Mbaga and Jiba”.
The PW 3 (Jiba Tizhe) a 90 year old woman testified in-chief at page 35 lines 10-20 of the Record of proceeding that he had come to court in respect of the land in dispute which is situated in Michika. In his words;
“What I knew about the land is, when we where born the farmland was on the right hand and our house was on the left. My father and the father of the plaintiff died there. To the best of my knowledge the farmland belongs to Teri Tumba who has since died. Teri gave the farmland to the father of the plaintiff before he died. The father of the plaintiff is dead. The plaintiff inherited the farmland after his father’s death. Teri Tumba only had a grandson he did not have a son. The name of the grandson is Sini”.
Upon being cross-examined she stated at lines 26-30 of page 35 of the Records to page 36 lines 1-5 thereof thus;
“I know the 3 Defendants I was not born before the farmland was given to the father of the 1st Plaintiff. I know the neighbours to this land. They are:- Baki Teri Tha; Tijhe Teri Tha (deceased); my father’s farmland; my husband’s farmland.
I was very young when Teri Tha died. I cannot tell my age by then. The grandson of Teri Tumba Sini is at Michiko. There are trees and a house on the farmland. The house belongs to the 1st plaintiff. There are three houses on the land. The Defendant’s farmland is near the Plaintiff farmland”.
Upon being re-examined by the learned counsel for the Appellants she explained that; “The farmland near the plaintiff farmland is not the same with the farmland in dispute”.
Stephen Tidi the 3rd Plaintiff/Appellant testified as PW 4 and in his evidence-in-chief which was quite elaborate told the Court that he decided to sue the Respondents because the 1st Respondent encroached into the disputed land and farmed thereon without authorization from him (the PW 4). That was around the year 2000. As for the Traditional history of the land and how his ancestors acquired same he sated thus:-
“From time immemorial our great grandfather called Yazza Tsalla migrated from Ghe the present Zaa. When they migrated, they settled in one mountain and gave a name to the mountain. My grandfather was the first person to cultivate the said land. The land in dispute is measuring approximately 150m x 150m with our family compound – Tide Yazza family compound situated at the East of the land and Vandi Tihade’s land situated at the South of the land in dispute and Tizhe Pembi and Tizhe Teri Tiah’s land situated on the North of the land in dispute and Ali Kwada and Ayuba Zira land situated on the West of the land in dispute.
After my father cultivated this land one man called Teri Tumba who was his friend approached him for a piece of plot so that he could build his hut there. My grandfather obliged and gave him. After some time, they parted because Teri Tumba wanted to go and join his people at Villegwa. Before they parted they had an oath that in the nearest future we should be able to accommodate his people whenever the need arises. My grandfather died in 1932. Then we sought to know of any of Teri Tumba’s children and we learned that he had only one surviving grand child by name Vandi Sini. We invited him and we explained to him the oath which his grandfather took with our grandfather. That was in the year 1997.
When we explained to him, he said he had never known any thing like that and in order for us to free ourselves from the oath of our grandfather we compensated him with the sum of N13,000.00 as he said he would not come and live with us rather he would live with his people at Villegwa. This was reduced to writing. We wrote a written agreement. I can recognize the written agreement which I wrote in Hausa which was translated into English by a High Court Translator called Ferdinand Vranoun. The names of 4 of us the sons of Tidi Yazza, are written on the agreement. The witnesses of Sini Vandi also signed. My witnesses also signed”.
When those documents were brought to be tendered through the witness the learned counsel to the Respondents objected to their admissibility which objection the Court below overruled and the Hausa and English versions of the Agreement were admitted and marked Exhibits ‘A’ and ‘A1′ respectively.
See pages 38-40 of the Records.
At page 41 lines 1-30; the PW 4 further stated that the 1st Respondent James Kwada went and started farming on the plot of land without their Appellants’ authorization. The 1st Appellant then approached the said 1st Respondent to desist from further trespass but the 1st Respondent refused and he (PW4) sued the 1st Respondent at the Upper Area Court, Michika. While in the Court, the 1st Respondent admitted farming on the disputed land but by the permission of the 2nd Respondent Kwada Minta. The PW 4 then contacted his counsel who advised him (PW4) to sue the Respondents in the High Court.
The witness also tendered a document said to have been written by the Registrar of Upper Area Court Michika (Mr. A. B. Kilwao) which was duly signed and stamped. The said document was tendered admitted and marked Exhibit ‘B’.
The witness continued in his evidence-in-chief that he knew Sini Vandi the grandson of Teri Tumba who came to court to testify as the PW2. He added that the people settling at Lughu are Kwabe Clan while those in Villegwa are of the Kwaga Clan, where Teri Tumba came from like the Respondents too. He explained that both Kwabe and Kwage Clans are of Higi Tribe and that when he used the words “we” and “us”, he meant the sons of Tidi Yazza. He further denied having any relationship with Madee hence the reliefs sought in his statement of claim.
When cross examined, the witness replied that the 1st Respondent is his father and knew the land better that him (the PW4). He admitted not being around when Teri Tumba requested for the piece of land from his (Pw4’s grandfather nor was he around when Teri Tumba and his grandfather entered into the oath. On further cross-examination, he stated that he only knew Sini Vandi as Sini Vandi. He admitted that there was a case between Sini Vandi and Kwada Furi and Kwatri Tumba before Area Court No. 2, Michika but to his knowledge no judgment was passed in that case.
The witness further averred on further cross examination that he attended that case from the beginning to the end and that Exhibits ‘A’ and ‘A1’ were in respect of compensation for the land in dispute. The documents/Exhibits above mentioned were written by him (the PW 4) and Exhibit ‘B’ is a declaration of title in respect of the disputed land. He admitted that it is true that there are houses on the disputed land and the houses belong to his father and his brothers. Furthermore, he admitted as the truth that his father testified before the Area Court in respect of the case. Finally, the witness stated under cross-examination that he measured the land by his steps and he said it is about 150m by 150m and that all that he told the Court below mere what he gathered from his personal inequities and observations from what his elders told him.
In proof of their averments in the statement of Defence particularly paragraphs 2, 3, 4, 5, 7, 8, 9, 10 which deal with their root of title the DW1 Tahe Sini Kwaya denied knowing the Appellants but knew the Respondents he testified that the farmland belonged to Tumbara Madee the grandfather of Kwada and Fashe (the Respondents). Tumbara Madee was said to have died a long time ago. He would not know what happened to the farmland after the death Tumbara Madee. According to him: “The defendants got the farmland from their said grandfather. After his death Tumbura Madee, Kwada and Fashe inherited the land. I know Tumbura Madee first cleared the land because he was sharing boundary with my grandfather”.
Under cross examination the witness admitted that he knew one Sini Vandi but denied knowing Vandi Tumba and Sini Vandis’s father who had no real brother. He stated on further cross examination that: “Sini Vandi and the Defendants ore relatives. The Defendants live at Vragwa which is far away from the land in dispute. I cannot know how long since Madee died. I don’t know how old I was when Madee died. I did not start going to farm when he died. Their (There?) are the houses close to the land in dispute. The houses do not belongs to the Defendants”.
Kwada Fore who lived in Vragwa (Villegwa?) who was the DW2 also testified that the land in dispute belonged to Madee who had died. After his death then Fashewula and Kwada Minta (the 3rd and 2nd Respondents); Sini Vandi and Sini Wada inherited the land. Then Tidi Yazza called Sini Vandi and asked him to sell the land to him (Tidi Yazza) and they went to Court No.2 Michika and the Court gave the farm to Fashewula and Kwada Minta.
Sini Vandi he also told the Court is the grandson of Madee. Madee, according to him, gave Yazza a portion to build a house and he built a house there which is still on the land. The witness also claimed that:
“I was present when Madee gave Yazza the portion to build the house. Barde and Bake were also present. We were on the farm when Madee gave the portion to Yazza so that if and when Yazza is able to get his own he should leave the portion for him. The neighbours to the land are: Tizhe Yagwa, Washa Kotri Bata, Zira Bake Zanzra and myself, I have never seen the plaintiff’s farming on the other part of the land. I can show the farmland to the Court”.
Under cross examination the witness replied that;
“The Kwabe Clan are staying at Laghu. There are houses near the disputed land. It is true that the houses do not belong to the Defendants. I don’t know whether Sini Vandi gave evidence in this court. I was 10 years when Madee died. I was 70 years old when Madee gave the land to Tidi Yazza. I have forgotten how long Tidi Yazza was on the land. Madee called me when he was giving the land to Tidi Yazza. I don’t know why Sini sold the land to Tidi Yaza.
It is not true that Ayuba Zira Woba has a farm land near the land.
Ali Kwada farmland is not near the farm land”.
When re-examined by the learned counsel for the Respondents the witness explained that Kwabe Clan were staying at Madzi near Wofu before they came to the farm land in question. He further explained that Zira Bake Zangra, Washa Kofri Buta Banika were the ones who built the houses near the farmland in dispute but that the houses do not form part of the portion given to Tidi Yazza.”
DW3 Bake Teri who was the last witness for the Respondents testified as a boundary neigbour to the land in dispute. According to him;
“My father used to tell us that this farm is (sic) boundaring Madee’s father of Defendant. That is all I know about this land. Made died. After his death his son Tumbara Madee continued to farm on the land. Tumbara Madee has also died. After his death, his children Fashe, I cannot remember the names of others, we have been sharing boundary with the land in dispute for 20 years. I can show the boundary between us”.
On being cross examined by the learned counsel for the Appellants he admitted that he is from Kwage Clan of Michika but would not know whether the Appellants are from Kwabe Clan of Michika. He would not know whether the Defendants are living in Villegwa nor would he know whether the land is surrounded by houses. He also did not know one Sini Vandi or whether the people staying around this land are from Kwabe Clan of Michika. When further asked whether he knew who was Bulama of Lughu, he replied in the affirmative but would not know his name and upon being further questioned, he replied that he would be surprised that the said Tidi Yazza (1st Appellant) was the Bulama of Lughu. Finally he stated that he did not know whether he wanted the Court to believe him that he has been working near the land in dispute for 20 years yet did not know what has been taking place around the land in dispute. See pages 44 to 48 of the Record of proceedings.
Upon suo motu closing the case of the Respondents, the learned trial Judge delivered his judgment on the 15th of September, 2009. At page 53 lines 15 to 24 of the Records (page 32 of the judgment), the learned trial Judge held thus:-
“I find as fact that the land is dispute is situated at Lughu Ward of Michika Town and that the Plaintiffs house is near the land in dispute. It is bounded by Ayuba Zira Waga, Vandi Tihale and David Pembi. It is about 150m x 150m. I also find as a fact that the 1st Defendant James Kwaga was seen entering the land in dispute and farming on it. See evidence of PW1 who told the court that he inherited the land in dispute from his father who settled on the land in dispute after migrating from Zah.”
Surprisingly, in spite of the above findings which are in favour of the Appellants, the learned final judge turned somersault when he subsequently from lines 25 – 30 of page 53 of the Records to page 54 lines 1-30, and page 55 lines 1-28; went on to impugn the evidence of the witnesses for the Appellants on the frivolous, flimsy and unreasonable grounds that:-
1. If the PW1 was 70 years old by the time of giving evidence before him then the witness was telling lies and that his evidence was manifestly unreliable because he could not have been born when his father migrated nearly a hundred years from Zah to settle on the land without meeting anybody thereon.
2. The evidence of the PW2 was also very unreliable and consisted of hearsay having told the Court that after the death of his grandfather, Tidi the 1st Appellant called him (the PW 2) and asked the witness (PW2) to take possession of his PW2’s grandfather’s farmland which was given to Tidi Yazza’s father on trust for the PW2.
Furthermore, under cross examination the PW 2 had stated that he was not present when his grandfather gave the land to the Plaintiffs/Appellants on trust or that he did not know the number of years since his grandfather gave the land to the Appellants more so when he (the PW2) was not born. Furthermore, it was about 30 years since Tidi told him that his grandfather gave him (Tidi) the land in trust as well as the fact that his (PW 2’s) father farmed on the land which his said PW2 inherited from father.
3. The evidence of the PW3 was also manifestly unreliable because the witness told the court that she was not born when the farmland was given to the father of the 1st Appellant and that the said witness gave evidence of boundary neighbours which were radically different from those given by the Plaintiffs/Appellants (the PW1).
4. The evidence of the PW 4 is most unreliable and he placed no premium on the documentary Exhibits tendered as “A” and ‘A1 & B’ because the witness told the Court under cross examination that his father (the 1st Appellant knows the land better than him and that he was not present when Teri Tumba requested for the piece of land from his PW4’s father and the oath was subsequently taken by them.
There is no doubt, and I am not oblivious of the time-honoured principle of law as has been enunciated in a plethora of cases, that it was within the exclusive purview of the learned trial judge as a Court of first instance who had the singular opportunity and advantage to hear and watch the demeanor of all the witnesses for the parties who testified; to appraise and evaluate the totality of the evidence and ascribe probative value to those testimonies before arriving at the conclusion of whom to believe and/or disbelieve. See Onisaodu v. Elewuju v. Anor (2006) 12 NWLR (Pt. 998) 517 at 529 – 530 per Tabai, JSC; Essien v. Essien (2009) 9 NWLR (Pt. 1146) 306 at 334; Ameyo v. Oyewole (2009) 8 NWLR (pt. 1142) 13 paras. F-G and Iwoha & Anor. v. NIPOSTS LTD & Anor. (2003) 8 NWLR (pt. 822) 308 at 339; per Niki-Tobi JSC.
This Court ordinarily and generally in its Appellate jurisdiction has no business interfering with the findings of facts of the learned trial Judge particularly where credibility of witnesses is concerned. In this case however, it would appear that the Court below failed in its primary and bounding duty of evaluating the evidence as has been laid down in the cases of Mogaji v. Odofin (supra), Ozigbe & Ors. V. Aigbe & Ors (supra) and Amokowo v. Audu earlier cited; when it failed to place the totality of the evidence of the parties and their witnesses on the imaginary scale of justice, weighed them before disbelieving the Appellants and believing the Respondents and their witnesses.
For instance, the learned trial Judge approached the case purely from the prism of criminal procedure law when he in part, erroneously (in my humble view), held at page 56 lines 5-25 that:-
“I think in law it is the case of the Plaintiff that has to be considered first and foremost to ascertain whether or not a prime facie case has been made out to warrant consideration of the Defendant’s case and where a prima facie case has not been made out, where the evidence is unsatisfactory the case of the Defendant needs not to be considered at all and the appropriate thing in the circumstance is to enter judgment for the Defendant by dismissing the action. See Sanusi v. Amoyegun supra ratio 2, 3, 6-9, Neji v. Chukwu (1996) 12 SCNJ 388 ratio I. in this case I am of the opinion that a prima facie case has not been made out against the Defendants. The evidence is unsatisfactory and the case of the Defendants needs not be considered at all. A no case submission would have been enough.”
With the greatest respect, although the learned trial Judge was on solid pedestal when he stated the basic position of the law in respect of actions for declaration of title to land as in this case which position of the law and authorities, like Kodilinye v. Odu (supra), Sanusi v. Amoyedun (1992) 4 SCNJ 17 ratio 9; are to the effect that in cases of this sort, the Plaintiff must rely on the strength of his case and not on the weakness of the Defendant’s (though sometimes the Plaintiff can rely on the weakness of the Defendants case to buttress his case), since the Plaintiffs and Defendants pleaded and testified and basically relied on traditional evidence as laid down in Idudun v. Orumagba (supra); it was incumbent on the learned tried judge to juxtapose the disparate evidence of the parties on the imaginary scale before coming to a proper decision.
This is more so where there were material conflicts on their respective evidence of title to the land in dispute. With the greatest respect once more to the learned trial judge, he lost touch with the fact that traditional evidence is glutto-chronologically handed down from one successive generation to another mostly from time beyond human memory. Therefore, there was no basis for disbelieving the witnesses for the Appellants simply on the basis that they rehashed the historical antecedents of the land in dispute and how their ancestor acquired the same, how it devolved from the founder as well as the particulars of the successive owners and trustees as in this case where the land was held by the Appellants in trust for Sini Vandi (the Pw2). See Akinloye v. Eyiyola (1968) NMLR 92; Mogaji v. Cadbury NIG. Ltd. (1985) 2 NWLR (pt. 7) 393; Piaro v. Tenalo (1976) 12 S.C.31; Anyanwu v. Mbara (1992) 5 NWLR (pt 242) 386 and Ali v. Alesinloye (2000) 6 NWLR (pt.600) 177 at 203 Paras. A-C.
Where, as in this case, there were conflicts in the traditional histories of the parties as to the founder of the land in dispute, the court below ought not to rely on the demeanour of witnesses as demeanour alone in circumstances of this nature does not necessarily serve as a guide to the truth of the matter. As has been held in the celebrated case of Kojo v. Bonsie (2003) 34 WRN 162 (1953) 14 WACA 242, (1957) 1 WLR 1233 per Lord Denning M-R; since traditional history is transmitted orally from generation to generation as I had earlier held:-
“In this regard, it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken yet both may be honest in this belief. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.” See Alli v. Alesinloye (2000) 6 NWLR (pt 660) 222 paras. A-B; Agedegudu v. Ajenifuga (1963) 1 ALL NLR 109; Ayomano v. Ginuwa (1943) 9 WACA 85; Mora v. Nwalusi (1963) 1 ALL NLR 681 (P.C); and Eyo v. Onuoha (2011) 39 W.R. N.1 at 27 lines 30-35 and page 28 lines 5-30.
In the case at hand, I am of the candid view that the stories of each of the traditions of the parties could have been plausible and credible but conflicting, and the court could not have justifiably and realistically referred to that of the Appellants as incredible or unbelievable when he did not evaluate or consider the case of the Defendants which he believed. The only realistic and justifiable thing the learned trial judge ought to do was to test the stories with recent events of living memory or recent acts of possession by any of the parties in order to arrive at a proper conclusion as to which of the stories is true. See Mogaji v. Cadbury (Nig) Ltd (2004) 23 WRN 54 (1985) 7 S.C. 59 (1985) 2 NWLR (Pt. 7) 395; Ogbuokelu v. Umeanyajukwe (1994) 4 NWLR (Pt. 341) 676 at 698, Okeramowebi v. Mbadugha (1999) 7 NWLR (pt. 588) 471 at 481 and Ene v. Atasie (2000) 10 NWLR (pt. 676) 470 at 492.
Still on this point, it is pertinent to note that the Appellants pleaded Exhibits “A” – “A1” and ‘B’ as documents buttressing their claim to the land in dispute. The Respondents on the other hand had pleaded in paragraph 10 of the Statement of Defence that Sini Vandi was never offered any compensation by the Appellants’ family rather it was Kwada Fari and Kwatri Tumba who are of the same grandfather with Sini Vandita who sued Sini Vandita before the Area Court No. 2, Michika because the said Sini Vandita illegally sold the land in dispute which is a family land belonging to them including the 2nd and 3rd Defendants/Respondents.
The 1st Appellant was said to have testified as DW1 before the Area Court No. 2 Michika and that the Judge of the Area Court No. 2, in his judgment revoked the illegal sale and confirmed the land as family property belonging to Sini Vandita and Respondents and the said piece of land upon which judgment was given was the same sought to be re-litigated upon by the Appellants in the High Court and which is the subject of this Appeal. The Respondents even pleaded the said judgment in Suit No. CV/11/99, in which case, they had raised the plea of res judicata. Exhibits ‘A’, ‘A1’ and ‘B’ tendered by the Appellants ought to have been compared with the judgment in Suit No. CV/11/99 purported to have been given in favour of the Respondents but no such judgment was tendered by the Respondents. Thus Exhibits ‘A’, ‘A1’ and ‘B’ tendered by the Appellants stood alone to support the Appellants’ claim that the land in dispute belonged to Sini Vandi as an inheritance from his grandfather which was kept in trust for him by the Appellants’ grandfather as a result of the covenant the said Appellants’ grandfather entered into with Sini Vandi’s grandfather for Teri Tumbas’s children/family to be accommodated on the land after the two friends had parted ways.
In fact at page 20 line 25-30 the PW 4 had stated under cross-examination that:
“I know there was a case between Sini Vandi and Kwada Furi and Kwatri Tumba before Area Court No, 2, Michika. To my knowledge there was no judgment passed, I attended the case from the beginning to the end. Exhibit ‘A’ and ‘A1’ was compensation in respect of the disputed land,” and that ‘Exhibit ‘B’ is a declaration of title in respect of the disputed land”.
The Court below from the authorities of Kojo v. Bonsie and others earlier cited was duty bound to appraise those documents and compare them with the oral testimonies of witnesses in order to discover who amongst the witnesses for the Appellants and Respondents was telling the truth. Still on the documents tendered, since it is clear from my perusal of Exhibit ‘B’ that the Area Court Judge on the 5th of September, 2000, did not decree title in favour of the Appellants in that he had held at pages 61 and 62 of the Record that:
“This Court having heard from the four people invited by this Court,
i.e. Kwada Mita, John Fashe, Tapa Sini and Moses Kwada. This
Court is convinced that there was no sale of the disputed land between them and the Defendant James O. Kwaga they merely authorized him to use the land. Since the Defendant does not lay any claim to the disputed land he is not a proper party before this Court the Plaintiff shouldn’t have sued him. Since James is not the proper party to be sued this Court has no option than to strike out the Plaintiff Claim. Same is therefore struck out. The Plaintiff can if he so wish can sue laying claim to the disputed land;”
and the Area Court also remarked that any of the parties had a right of appeal within thirty days to the High Court; which warranted the Appellants to institute the action for declaration of title before the High Court which culminated in this Appeal and tendered Exhibits ‘A’ and ‘A1’; the Court ought to have given effect to the said documents as evidence of title to the land in dispute in favour of the Appellants.
Exhibit ‘A1’ for instance is titled “SALES AGREEMENT FOR A PIECE OF LAND” and it reads thus:
“I MR. SINI VANDI HAVE SOLD MY SHARE OF A PIECE OF LAND TO THE CHILDREN OF TIDI:-
(1) JAMES TIDI
(2) STEPHENE
(3) DANLANDI
(4) ELIJAH
AT THE RATE OF THIRTEEN THOUSAND NAIRA (N13, 000,00) ONLY BEFORE THESE WITNESSES;
WITNESSES FOR THE SELLER
NAMES
AYUBA VANDI (SCD) 19-4-97
DANIEL TIZHE (SGD) 19-4-97
WITNESSES FOR THE BUYER
NAMES
YOHANNA DA (SGD) 19-4-97
AMAILA TIZHE (SGD) 19-4-97
WARD HEAD
TIDI YAZZA (SGD) 19-4-97
TRANSLATED BY BRONOUN J. S. FERDINAND, SENIOR REGISTRAR WITH LITIGATION DEPARTMENT HIGH COURT, YOLA ADAMAWA STATE.”
From my perusal of the Exhibit reproduced l am satisfied that the Appellants who through their ancestors had been in possession of the land in dispute and for fear of the Oath their grandfather entered with the PW2’s grandfather invited the PW2 to take over his inheritance, had proved that the PW2 passed the title of the land in dispute to them on payment of the sum of N13,000.00 to the PW 2 by the Appellants since the PW 2 was not interested in settling on the disputed land but preferred to go back to his village (Villegwa).
The Respondents who purported to have been given judgment in respect of the land did not tender a copy of the said Judgment nor any document before the Court to that effect and the presumption is that such a judgment does not exist or that if such a judgment were to be tendered, it would have been detrimental to the their case. This explains why the Respondents absconded from Court until now even on Appeal. See Section 149(d) (now Section 167(d)) of the Evidence Act, 2011 and the cases of Amgbare v. Sylva (2009)1 NWLR (Pt.1112) 90 at 150 Paras. D-F; 68 paras. C-E and 176 Paras. H-B; Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1; Aremu v. Adetoro (2007) 16 NWLR (Pt.1060) 244; Agbi v. Ogbeh (2006) 11 NWLR (990) 65 and Igbeke v. Emordi (2011) 11 NWLR (Pt.1204) 1 at 35 paras. B-F.
On another score, assuming Exhibits ‘A’ – ‘B’ tendered by the Appellants are of no utilitarian value, the Respondents had admitted that they knew that the PW2 had sold the land in dispute aside from their also admitting that the Appellants are of Kwabe Clan and their (Appellants) and kindred houses surround the land in dispute while the Respondents who are of Kwaga Clan live in Villegwa Village far away from the disputed land. From the foregoing scenario, the law is settled as decided in Idundun V. Okumagba (supra), Johnson V. Lawanson (1971) 1 All NLR 55; Ekpo V. Ita (Supra) and Dacosta V. Ikomi (1968) 1 All NLR 394 at 398; which interpreted Section 46 of the old Evidence Act (now Section 35 Evidence Act, 2011) that:
“Acts of possession and enjoyment of land may be evidence of ownership or right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land situated or connected therewith by locality or similarity that what is true as the one piece of land is likely to be true of the other piece of land.” See Salami V. Lawal (2008) 36 NSCQR 1047 – 1648 Paras. C-H.
From the foregoing authorities and Arum V. Nwobodo rightly cited by the learned counsel for the Appellants, the Appellants had proved their case in at least the first, third, fourth and fifth modes of proving title to the land in dispute. I am therefore of the candid view, that even if the Appellants did not pay any compensation or buy back the land from the PW2, under customary law if the PW2 decided to abandon the land he ought to have inherited from his grandfather, the said land would have reverted back to the Appellants’ family since they were the original owners of that land. See Akintola V. Oyelade (1993) 3 NWLR (Pt.349) 382 per Kutigi, J.S.C. (as he then was); Abidoye V. Alawode (1994) 6 NWLR (pt.349) 245.
On the whole, I agree totally with the submission of the learned Counsel for the Appellants that the Respondents failed to establish their root of title to the land in dispute more particularly when none of the Respondents testified and where the Court below had earlier made findings at page 53 lines 15-24 of the Records upholding the facts adduced by the Appellants in support of their claim against the Respondents. The learned counsel for the Appellants has on the authorities of Salako V. Dosunmu (1997) 7 SCNJ 278 at 301 and Ndukwe V. Acha (1998) 5 SCNJ 28 at 36-37; to call on us to evaluate the evidence since the Court below had failed so to do.
I had earlier posited on cited authorities that the duty to evaluate and appraise the evidence adduced in a case, is the exclusive preserve of the court of first instance and generally Appellate courts have no business to disturb the findings of facts particularly where the credibility of witnesses is involved. This is notwithstanding whether the Appellate court would have come to a different finding or conclusion on the facts of the case. However, there is an exception to this general rule and the courts have held that in appropriate circumstances the Appellate court can step into the shoes of the trial court to reevaluate the evidence of witnesses. Those circumstances include:
1. Where the evaluation by the trial court is perverse in the sense that its findings are not borne out of the evidence;
2. Where the trial court did not make proper use of the opportunity of seeing and hearing the witnesses at the trial;
3. Where the trial court drew erroneous conclusion from accepted facts or mis-appreciated the evidence before it; and
4. Where wrong principles have been applied to proved facts. See Fasakin V. Siwoku (2009) 16 NWLR (Pt. 1167) 305 at 320-321 paras. D-F; Ebba V. Ogodo (1984) 1 SCNLR 372; Woluchem V. Gudi (1981) 5-7 S.C. 291; Balogun V. Agboola (1974) 1 ALL NLR (Pt.2) 66; Agbaje V. Ajibola (2002) 2 NWLR (Pt. 750) 127; Thompson V. Arowolo (2003) 7 NWLR (pt. 818) 163 and Anyegwu & Anor. V. Onuche (2009) 3 NWLR (Pt. 1129) 659 at 679-680 paras. H-B; per Ogbuagu, JSC.
On the whole having found that the learned trial judge failed to evaluate the totality of the evidence and even applied wrong principles to proved facts at the trial, we were minded to step into the shoes of the learned trial Judge to re-evaluate and appraise the totality of the evidence and have come to the conclusion that the lower court erred in law and came to perverse findings.
This error definitely occasioned substantial miscarriage of justice against the Appellants. Issue Number 1 (one) is therefore resolved in favour of the Appellants.
ARGUMENTS OF COUNSEL AND RESOLUTION OF ISSUE NUMBER TWO (2)
On this issue the learned counsel for the Appellants was on very firm ground when he submitted on the authorities’ of Ekpenyong V. Nyong (1975) 25.C. 71 at 81 – 82; that the court does not form the habit of awarding to parties reliefs not sought. In short, the Court is not Father Christmas that doles out unsolicited and gratuitous gifts even without asking. There is no doubt as can be gleaned from the record of proceedings that the claim before the court was based on the reliefs sought in the Appellants’ Statement of Claim (see pages 9, 10 and 11 of the record of proceedings. Again, as can be seen from pages 12, 13 and 14 of the Records, the Respondents in paragraph 13 of their Statement of Defence merely averred that they shall contend at the trial that the Appellants were not entitled to the reliefs sought in paragraph 23 of their Statement of Claim and that the suit was frivolous, vexatious and amounted to abuse of Court process; wherefore, the Respondents urged the Honourable Court to dismiss same with costs.
Upon a careful perusal of the Records, the Respondents truly did not seek for any counter-claim and accordingly the court below ought not to have granted them title to the land in dispute considering the facts that even from the totality of the evidence elicited by them as to how they (Respondents) acquired the land in dispute from their predecessor-in-title and the names of those who succeeded the founder, were disjointed as well as their boundary neighbours.
Thus, I agree with the learned counsel for the Appellants and the authorities of Yusuf V. Oyetunde (1998) 10 SCNJ 1 at 20 and Ezeonwu V. Onyechi (1996) 2 SCNJ 250; that for the Defendants/Respondents to be entitled to declaration of title, they must have counter-claimed against the Appellants which they failed to do as mere failure of the Appellants to establish their claim did not automatically confer title on the Respondents. The oft-quoted dictum of Webber C.J. in Kodilinye V. Mbanefo Odu (1935) 2 WACA 336 at 337-338; aptly captures the legal principle thus:
“The Onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the Defendant’s case. If the Onus is not discharged, the weakness of the Defendant’s case will not help him and the proper judgment is for the defendant, such a judgment decrees no title to the Defendant he not having sought the declaration”. See Adeyeri V. Okobi (1997) 51 LRCN 1529, Adeniran V. Alao (2001) 92 LRCN 3253 at 3267, to 3268 per Uwaifo, JSC and Ogboni V. Ojah (1996) 6 SCNJ 140 at 153; ably cited by the learned counsel for the Appellants.
The above authorities notwithstanding, I have taken a critical look at pages 35 lines 27 and 28 and 36 lines 1 and 2 of the Records where the learned trial Judge remarked: “In the circumstances I think the appropriate thing to do is to enter judgment for the Defendants. JUDGMENT dismissing this suit is ENTERED for the Defendants”, and am of the candid view that the learned trial Judge was cautious enough to abide by the principle enunciated in Kodilinye V. Odu by not declaring title to the Defendants/Respondents.
All he did in the final analysis was to dismiss the Appellants’ claim as he ought to do assuming he was right to have found that the Appellants failed to prove title to the land. For this reason, this issue ought to be resolved against the Appellant but since the learned trial judge was still wrong to have dismissed the Appellants’ case, I hereby allow the Appellants Appeal and set aside the judgment of the High Court of Justice, Adamawa State Holden at Mubi as was delivered on the 16th day of September, 2009, by A. B. Mubi, J. In its stead, I shall and do hereby enter judgment for the Appellants and grant all the Reliefs sought by them as per their particulars of claim but make no order as to costs herein.
SOTONYE DENTON WEST, J.C.A.: I had the pleasure of perusing in draft, the captivating, educative and well researched Judgment of my learned brother, I. I. Agube (JCA) just delivered, I concur with the illuminating reasons adduced for the decision.
In the same train, I add that it is now a knotted tie in our legal jurisprudence that the onus of proof lies on any person who asserts a fact. In other words, the burden is cast upon a person claiming for a certain right or for a declaration of title to property to establish by evidence how the property came to be his own and state other points/reasons within the ambits of the law that will convince the court in granting the reliefs sought by such a person.
In declaration of title to land, the Plaintiff should furnish the court with evidence on how he acquired the land and other evidence of such transaction must be placed before the court. This evidence in this situation and in all other civil situation is usually on the balance of preponderance of evidence.
See Sections 131(1) (2), 132, 133(1) 134, 135(1) of the Evidence Act, 2011 (as amended).
It has been held by our apex Court that in order to succeed in a claim for a declaration of title to land, the court must be satisfied as to:-
a. The precise nature of the title claimed that is to say, whether it is title by virtue of original ownership, or customary law of land, possession or otherwise.
b. Evidence establishing title of the nature claimed must be credible, convincing and equivocal.
See Obineche V. Akusobi (2010)12 NWLR (Pt. 1208) 383 SC.
There is no doubt that a claim for declaration is purely and absolutely within the discretionary wisdom of the court, however, the Plaintiff must show the existence of a legal right, or a claim which the court is prepared to recognize and which if validly made, the court is prepared to give legal recognition by exercising its discretion in favour of such a person.
See Orlu V. Hogo-Abite (2010) 8 NWLR (Pt. 1196) 307 SC.
The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant in the present appeal is trite. A claim for a relief of declaration, whether of title to land or not, is not established by an admission by the Defendant, because the Plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a court does not grant declaration on admission of parties, because the court must be satisfied that the Plaintiff on his own evidence is entitled to the relief claimed.
See Ayanru V. Mandilas Ltd. (2007) 10 NWLR (Pt. 1043) 462, David Fabunmi V. Abigail Ade Agbe (1985) 1 NWLR (Pt. 2) 299 at 318, Kodilinye V. Odu (1935) 2 WACA 336, Woluchem V. Gudi (1981) 5 SC. 291, Gundairo & Ors. V. Okanlawon & Ors. (1963) 1 All NLR 358, Bello V. Eweka (1981) 1 SC 101.
In Ngene V. Igbo (2000) 4 NWLR (Pt. 651) 131, the Supreme Court held thus:-
“Where in a claim of declaration of title, the Plaintiff relies on derivative title, he must not only plead and prove how he derived his title but also the title of the person from whom he claims to have derived title. It is only if, such Plaintiff can establish the title of the person from whom he claims, that the burden of proving title would have been discharged…”
See also Thomas V. Holder 2 WACA, Chukwu V. Wuche (1976) 9-10 SC 173, Oronsaye V. Ogula (1976) 6 SC 21.
Now, it is a trite law devoid of academic exercise that in a case where a party is seeking a declaration of title to land, the onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title claimed.
In this regard, the Plaintiff must rely on the strength of his own case and not on the weakness of the Defendant’s case. If this onus is not discharged, the weakness of the Defendant’s case will not help him and the proper Judgment will be for the Defendant.
see Elema v. Akenzua (2000) 13 NWLR (pt. 683) 92, Kodilinye v. Odu (1935) 2 WACA 336, Bello v. Eweka (1981) 17 SC. 101, Odunukwe v. Otom (2010) 18 NWLR (Pt. 1225) 404 SC, Gbadamosi v. Dairo (2007) 3 NWLR (pt. 1021) 282, Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 734, Onissaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517, Ajiboye V. Ishola (2006) 13 NWLR (pt. 998) 628, Olodo v. Josiah (2010) 18 NWLR (pt. 1225) 653 SC.
It is my humble view on the strength of the above authorities and legal principles that the Appellants proved their claim and declaration of title to the disputed land ought to have been made in their favour.
I therefore align with the league of authorities anchored on in the lead Judgment to allow the appeal as well.
I abide by all the consequential orders including order as to no cost made therein.
JUMMAI HANNATU SANKEY J.C.A.: I have had the advantage of reading in draft a copy of the lead Judgment of my learned brother, Agube, J.C.A. I agree with his reasoning and conclusion. I only wish to briefly emphasize an aspect of the lead Judgment relating to the first issue for determination.
In a claim for a declaration of title to land, like in all civil matters, the onus is on the plaintiff to prove his case. In the process, he must rely on the strength of his case and not on the weakness of the defence, except where the weakness of the defendant’s case tends to strengthen the plaintiff’s case. Unless a defendant files a counter-claim, the plaintiff has the primary duty to establish his claims by credible and consistent evidence in accordance with his pleadings. He must satisfy the court that he is entitled, on the evidence brought by him, to the declaration claimed. See Nwokido V. Okanu (2010) 1 SCNJ 167; Odofin V. Ayoola (1984) 11 SC 72; Okafor V. Idigo V. Idigo (1984) 1 SCNLR 481.
Where a plaintiff’s existence on a land acquired by him either through a grant, settlement, sale or conquest, as the case may be, is challenged, he has an option of five ways under the law to prove such title as follows:
(a) By traditional evidence;
(b) By production of documents of title duly authenticated or executed;
(c) By acts of ownership over a sufficient length of time, numerous and positive enough as to warrant the inference of a true ownership;
(d) By acts of long possession and enjoyment;
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See Fasoro v. Beyioko (1988) NWLR (pt. 16) 263; Amajideogu v. Onanaku (1988) 2 NWLR (Pt. 78) 614; Idundun v. Okumagba (1976) 9-10 SC 227; Piaro v. Tenado (1976) 12 SC 31.
In proving his title to land, it will suffice for a plaintiff to prove only one of the above five ways of proving title to land by cogent, satisfactory and conclusive evidence. A plaintiff who relies on root of title must prove his derivative title. See Nneji V Chukwu (1996) 10 NWLR (pt. 478) 265; Odofin V Ayoola (supra).
For the sake of emphasis, a plaintiff relying on the evidence of traditional history must plead his root of title by showing, not only his ancestors, but also how they came to own and possess the land and eventually pass same to the claimants before the court. See Alli V. Alesinloye (2000) 6 NWLR (Pt. 660) 177; Adejumo V Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Olujinle V Adeagbo (1988) 2 NWLR (Pt. 75) 238; Mogaji v Cadbury Nigeria Ltd (1985) 2 NWLR (Pt. 7) 393; Piaro v Tenado (supra); Akinloye v Eyiyola (1968) NMLR 92.
Gleaning through the record of proceedings at the lower Court, both parties gave traditional evidence of acquisition of the land in dispute. The Appellants, in their pleadings, expressly set out the source and founder of the land, how it came to be acquired, and the names of the succeeding forebears from whom the land passed onto them. In addition to this, they pleaded numerous acts of possession and ownership of the land. They called four witnesses who gave lucid and credible evidence and thus, discharged the onus on them to prove their case as required by the provisions of the Evidence Act.
The Respondents who denied the claim and set down their defence in their pleadings, also called three witnesses. At the close of evidence, the lower Court decided to censure and disbelieve the evidence of the Appellants’ witnesses mainly on the ground that their evidence was hearsay. This was an unfortunate turn because traditional evidence of devolution of land is by its very nature hearsay having been passed by word of mouth from father to son and from generation to generation, etc.
In such a scenario, where the case is fought on traditional history, which as aforesaid, becomes a matter of hearsay upon hearsay, or word of mouth, which is the nature of traditional evidence, the trial court, in its traditional role of an adjudicator, has a duty to very circumspectly examine the evidence of the parties and come to the conclusion of which is more plausible and feasible by testing it against other evidence. The lower Court, in resolving the dispute before it, resorted to relying on some contradictions in the evidence of the Plaintiffs’ witnesses and his observation of their demeanour. However, in these circumstances, where traditional history is transmitted from generation to generation, mistakes may occur without any insincere motive. Where the lower Court found both histories inconclusive, it should have proceeded to decide the case on the numerous and positive acts of possession and ownership. See Nwokido V Okanu (supra).
In this regard, the Appellants pleaded and tendered documents of title, Exhibits A, A1 & B which supported the claim that the land belonged to Sini Vandi, which was kept in trust for him by the Appellants’ grandfather. Exhibit A1 is the sale agreement of the land in dispute from Sini Vandi to the children of Tidi, i.e. the Appellants. The Respondents, on the other hand, alleged that there was a Judgment in their favour in Suit No. CV/11/99 given in their favour, yet this was never placed before the Court. Nonetheless, in the Exhibit B tendered by the Appellants, the Area Court that initially heard the matter failed to award title to any of the parties. It was thus on the heels of this decision that the Appellants approached the High Court seeking a declaration of title, which has subsequently led to this Appeal.
It is settled law that evaluation of evidence and ascription of probative value to the testimony of a witness is within the exclusive domain of the trial court that heard and watched the witness testify before it. The law on the issue of credibility of witnesses is that where a question before an appellate court which has not seen the witnesses is in issue, it must defer to the opinion of the trial court. In other words, in such cases, the opinion of the trial court ought to be preferred except it is demonstrated that the inferences drawn by the trial judge were not supported by the evidence and the facts before him, or were perverse. See Dim V Enemuo (2009) 4 SCNJ 199; Agbi V Ogbeh (2006) 11 NWLR (Pt. 990) 65; Nnorodim v Ezeani (2001) 5 NWLR (Pt. 706) 203; Sagay v Sajere (2000) 6 NWLR (661) 360; Abba v Ogodo (1984) 1 SCNLR 372.
In the instant case the findings of the trial Judge have been demonstrated to be perverse in that its findings on the credibility of the witnesses is not supported by the evidence before the Court; and wrong inferences were equally drawn from the evidence. This therefore warrants this Court to interfere and to do that which the trial Court failed to do.
It is for these reasons, and the other reasons ably discussed by my learned brother, Agube, J.C.A. in the lead Judgment, that I would also allow the Appeal as meritorious. I subscribe to the consequential orders therein, inclusive of the order as to costs.
Appearances
Innocent Da’agba Esq. with him T.H. Shabo Esq.For Appellant
AND
Respondent’s Counsel unrepresented.For Respondent
