LawCare Nigeria

Nigeria Legal Information & Law Reports

TUKUR & ANOR v. MUSA & ORS (2021)

TUKUR & ANOR v. MUSA & ORS

(2021)LCN/15678(CA)

In the Court of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, November 24, 2021

CA/G/349/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. MOHAMMADU TUKUR 2. ABDULLAHI BUKAR APPELANT(S)

And

TELA MUSA & 2 ORS RESPONDENT(S)

 

RATIO

WHETHER OR NOT PARTIES MUST KNOW THE IDENTITY OF THE LAND THEY CLAIM IN AN ACTION FOR DECLARATION OF TITLE TO LAND

In a claim for declaration of title to land, it is of paramount importance that the parties know the identity of the land in terms of location and size of the land. It is the duty of the Claimant to prove the identity of the land in dispute with reasonable certainty.
According to MUSDAPHER, J.S.C. (as he then was) in GBADAMOSI VS DAIRO (2007) 3NWLR (PART 1021) 282.
“The issue of identify of the land in an action for declaration of title to land is very fundamental. The onus is on the plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration. See for example EZUKWU VS UKACHUKWU (2004) 17NWLR (PT 902) 227; IORDYE VS IHYAMBE (2000) 15NWLR (PT 692) 675”.
Where the Claimant fails to give the exact identity and extent of the land he is claiming, his action would be dismissed. See RUFAI VS RICKETIS 2 WACA 95; ARABE VS ASANLU (1980) 5 – 7 SC. 78.
PER AWOTOYE, J.C.A.

THE TEST OF ESTABLISHING THE CERTAINTY OF A LAND IN DISPUTE

The test of establishing the certainty of the land in dispute and its identity has been settled by the Court in several cases. See AJE KWADZO VS ROBERT KWASI–ADJEI 10 WACA 274. AREMU VS ADETORO (2007) 16 NWLR PART 1060 P. 244, TOBI, J.S.C. (of blessed memory), had this to say on the test in AREMU VS ADETORO (SUPRA)
“The test for the establishment of the identity of land is whether a surveyor can from the record, produce an accurate plan of such land”. While it is the law that a plan is not in all cases a sine qua non, some description is necessary to make a disputed land ascertainable. See AWERE VS LASOJU (1975) NMLR 100; AKPAGBUE VS OSEMWENKHAE (1977) 10NWLR (PT 8525) 358”
PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Claimants against the decision of the High Court of Justice, Borno State in BOHC/GZ/CV/001/2018 delivered on 10/01/2019.

The Claimants had instituted an action against the Defendants claiming as per paragraph 11 of their Statement of Claim as follows: 
a) A declaration that they are the rightful owners of that farmland situate at Leho Village of Chanchandana District of Askira/Uba Local Government sharing boundary in the eastern and southern side with the farmland of Abgai, in the northern side with the farmland of Ba Pindar and in the western side with farmland of Ba Ahmadu, having inherited same from their late parents.
b) A declaration that the Defendants have no right whatsoever to trespass unto the said farmland or any part thereon without the authority or consent of the Claimant.
c) A declaration that the act of the Defendants of forcefully taking possession of some part of said farmland is an act of trespass.
d) An order directing the Defendants or their agent, privies, servant or whoever claiming title through them to immediately quit the part of the said farmland which they trespassed unto.
e) An injunction restraining the Defendants, their agents, privies, servants or whoever claiming title through them from further trespassing or interfering with the Claimants’ rights and interest over the said farmland.

Pleadings were filed and exchanged. The learned trial Judge held that the Claimants failed to identify the land in dispute with reasonable certainty and found as follows:
“In my view, it is incumbent on the Claimants to identify the whole farmland they alleged to inherit from their parents and then the part they alleged the Defendants have encroached upon. I am afraid, by the evidence before the Court, that has not been established.
Much as the defence is not very better, as stated earlier, it is trite law that the Claimants must anchor their success on the strength of their case and not on the weakness of the defence. The Claimant have evidently failed to prove their claim, in the result, the issues raised are resolved against the Claimants. So in the final result, I must dismiss the Claimants’ case.
Costs of the sum of twenty thousand naira (N20,000:00k) awarded in favour of the Defendants.
So ordered”.

Miffed by the above decision, the Claimants now Appellants, filed a Notice of Appeal containing 2 grounds of appeal. The Appellants later filed an Amended Notice and grounds of appeal containing six grounds of appeal.

GROUNDS OF APPEAL
GROUND ONE.
The learned Judge erred in law when he held thus:-…by the combined effect of paragraphes 5, 6, 7, 8 & 9, the Claimants’ Statement of Claim indicated that their parents cleared a vast piece of land (sic) and converted it into comparison with the reliefs sought in paragraph 11 of their Statement of Claim clearly show, in my view that it is not the whole piece of land cleared by their parents as described above that have been allegedly trespassed unto by the Defendants. Sadly however, there is no evidence in proof of the portion as to location of the part trespassed upon by the Defendants has not been identified by them. Because in a case for declaration of title to land, the onus is on the Claimant to prove with precision and certainty…the identity of the land which he claims.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

GROUND TWO
The learned trial Court judge erred in law when he held thus:
“…I agree with the submission of S. Ali, learned Counsel to the Defendants that though the Claimants are competent witnesses, evidence of people who share boundary is vital in establishing their case because as it appears from what is summarized above, there are two different farmlands or vast lands, as stated by the Claimants and the defence, hence the evidence of their neighbor on the farm from whom we may have had good and credible identity of the land in dispute is necessary.”
GROUND THREE
The learned trial Court Judge failed to accord fair hearing to the Appellants, when he refused to invite the Appellants to react to the issue he raised suo motu and based his judgment thereon, thereby occasioning a miscarriage of justice.
GROUND FOUR
The learned trial Court Judge has refused to apply the applicable principle of law in the circumstance of the case, and thereby breached the Appellants’ rights of fair hearing.
GROUND FIVE
The learned trial Court Judge erred in law when he shuts his eyes on the evidence adduced before him; took into account extraneous and irrelevant matters; relied thereupon, and dismissed the Appellants’ claim.
GROUND SIX
The learned trial Court Judge misunderstood and misapplied the law, when he failed to consider the evidence adduced before him and held that evidence of the neighbor to the farmland in dispute is necessary and dismissed the Appellants’ claim.

Parties later filed and exchanged Briefs of Argument after transmission of the Record of Appeal to this Court.

The Appellants’ Brief of Argument was prepared by M. Alkali, filed on 7/10/2019 but deemed filed on 30/6/2021.

The Respondents’ Brief of Argument was settled by S. Ali, filed on 9/9/2020 but deemed filed on 30/6/2021.

SUBMISSIONS OF COUNSEL
APPELLANTS’ BRIEF OF ARGUMENT
The Appellants formulated two issues for the determination of this appeal 
1. Whether the learned trial Court Judge was right when he failed to invite the Appellants to react to the issue he raised suo motuand based his judgment thereon, and his refusal to apply the applicable principles of the law in the circumstances of the case and same, do not amount to breach of the Appellant’s right to fair hearing. (Grounds 3& 4)
2. Whether the learned trial Judge was right when he shut his eyes on the evidence adduced before him and took into account, extraneous and irrelevant matters and misapplied a wrong principle of law to reach his decision in dismissing the suit, and same has not rendered his finding/judgment perverse. (Grounds 5 & 6)
Legal Arguments by M.ALKALI, Esq.

Issue 1
Learned Appellants’ Counsel submitted that the trial Court Judge raised suo motu in his judgment and resolved same the issue of two different farmlands or vast lands without calling on the parties to address the Court. He contended that the issue was not averred in pleadings, or any evidence led to that effect as there was no counter claim before the Court. He submitted that the procedure adopted by the trial Judge was a breach of the Appellants’ right to fair hearing. BARR. J.C UWAZURUONYE vs GOVERNOR, IMO STATE& 2 ORS (2013) MRSCJ VOL 10 pg 1.

Learned Counsel submitted that the applicable principle of law as laid down in the case INWELEGBU vs EZEANI (2013)8 Q.R.R pg 62, and Order 38 Rules 1 & 2 of the High Court Borno State (Civil Procedure) Rules 2017. was that where the evidence adduced does not entitle the Plaintiff to the reliefs sought or warrant the Court to enter judgment for the Defendant, the law mandates that the Court should invite parties to address it on the non-suit. He submitted further that the failure of the trial Judge to order for a non-suit was in breach of the relevant laws and the Appellants’ right to fair hearing.

Issue 2
Learned Counsel contended that the trial Court Judge shut its eyes from the credible evidence led by the Appellants and took extraneous matters, when it held that there were 2 different farmlands or vast lands, and also relied on the evidence of neighbors as good and credible to dismiss the Appellants’ case. He submitted that the Appellants led unchallenged evidence and established ownership through traditional evidence and acts of possession extending over a long period. Counsel cited the case of AIYEOLA vs PEDRO (2014) 59 NSCQR 167 @ 199, and submitted further that once there are some  descriptions in evidence which made a disputed land ascertainable, the identity of the land is proved and a grant can be made with or without a survey plan.

Learned Counsel also submitted that the only witness who testified for the Respondents admitted under cross-examination that the 1st Appellant had been in long possession for over 58 years. He submitted that acts of long possession is one of the ways to prove ownership to land, as the settled principle of law was that proof of ownership is prima facie of possession. ALAMU SAPO & ANOR vs ALHAJI BINTA SUNMONU (2010) 11 NWLR pt.1205 @ 674. He concluded that the decision of the lower Court was perverse and urged the Court to enter judgment for the Appellants as per paragraph 11 of the Statement of Claim or in the alternative order, a re-trial before another judge of the Borno State High Court.

RESPONDENTS’ BRIEF OF ARGUMENT
The Respondents adopted the two issues formulated by the Appellants and canvassed legal arguments on same.
Legal Arguments by S. Ali, Esq.

Issue 1
Learned Respondents’ Counsel was of the firm opinion that the trial Judge was fair in his judgment as the portion of the judgment cited by the Appellants as two different farmlands or vast lands, was a careful observation that was true and supported by evidence. He submitted that the idea of non-suit as argued by the Appellants implied that an unsuccessful claimant has another chance to proceed against a defendant who in any way was entitled to the judgment of the Court. Counsel cited the case of ANYAKWO vs A.C.B LTD (1976) 2 (SC) 41 @ 62, and submitted that by the evidence before the Court, the Claimant cannot be entitled to be heard again by the lower Court.

Learned Counsel posited that the order sought for by the Appellants was for the Respondents to vacate the part of the land they trespassed upon, which according to him, placed the burden of proof on the Appellants. He submitted that the witnesses who testified for the Appellants only stated the neighbors to the land, and that the land is a vast piece of land. He submitted that their evidence fell short of describing the portion the Respondents trespassed upon, as PW2 admitted under cross-examination that he did not know the measurement of the land. Learned Counsel further cited the case of ODICHE vs CHIBOGWU (1994) 7 NWLR pt.354 78 (SC), and submitted that the lower Court rightly dismissed the claim of the Appellants because mere mention of the land in dispute without identifying the area to which the claim of trespass is related was bound to be dismissed, as once a claim for trespass fails, a claim for injunction fails as well.

In response to the argument of the Appellants that the trial Court Judge raised an issue and resolved same without calling on the parties to address it on the issue which the Appellants claimed infringed on their right to fair hearing, Counsel submitted that there was no need to call parties to address the Court on issues that evidence had been led upon by the parties. He submitted in further response that the failure of the Judge to enter a non-suit was apt because the crux of the matter before the Judge was not that of ownership, but that the Respondents trespassed upon a portion of a land of the Appellants. He submitted further that the trial was conducted according to all applicable legal rules as there was no evidence that the right to fair hearing of the Appellants was infringed upon. He urged the Court to dismiss the appeal and affirm the decision of the lower Court.

RESOLUTION OF ISSUES
APPELLANTS FORMULATED TWO ISSUES FOR DETERMINATION TO WIT:-
1. WHETHER THE LOWER COURT JUDGE WAS RIGHT WHEN HE HELD THAT THE EVIDENCE OF APPELLANTS’ NEIGHBOURS ON THE FARMLAND IS NECESSARY IN ESTABLISHING THE APPELLANTS’ CASE.
2. WHETHER THE LOWER COURT JUDGE WAS RIGHT IN DISMISSING THE APPELLANTS’ CLAIM ON THE PREMISE THAT THEY FAILED TO IDENTIFY THE ALLEGED FARMLAND INHERITED FROM THEIR PARENTS AND THE PART THEY ALLEGED THE RESPONDENTS ENCROACHED UPON AND WHEREAS THE EVIDENCE OF CW1 AND CW2 WERE NOT DISCREDITED DURING CROSS EXAMINATION?

The above two issues were adopted by the Respondents in their brief. I shall adopt the above two issues in determining this appeal

ISSUE 1.
WHETHER THE LOWER COURT JUDGE WAS RIGHT WHEN HE HELD THAT THE EVIDENCE OF APPELLANTS’ NEIGHBOURS ON THE FARMLAND IS NECESSARY IN ESTABLISHING THE APPELLANTS’ CASE?

​ISSUE 2.
WHETHER THE LOWER COURT JUDGE WAS RIGHT IN DISMISSING THE APPELLANTS’ CLAIM ON THE PREMISE THAT THEY FAILED TO IDENTIFY THE ALLEGED FARMLAND INHERITED FROM THEIR PARENTS AND THE PART THEY ALLEGED THE RESPONDENTS ENCROACHED UPON AND WHEREAS THE EVIDENCE OF CW1 AND CW2 WERE NOT DISCREDITED DURING CROSS-EXAMINATION?

As learned Counsel on both sides have done in their respective briefs, I shall resolve the two issues identified by the parties together.

In a claim for declaration of title to land, it is of paramount importance that the parties know the identity of the land in terms of location and size of the land. It is the duty of the Claimant to prove the identity of the land in dispute with reasonable certainty.
According to MUSDAPHER, J.S.C. (as he then was) in GBADAMOSI VS DAIRO (2007) 3NWLR (PART 1021) 282.
“The issue of identify of the land in an action for declaration of title to land is very fundamental. The onus is on the plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration. See for example EZUKWU VS UKACHUKWU (2004) 17NWLR (PT 902) 227; IORDYE VS IHYAMBE (2000) 15NWLR (PT 692) 675”.
Where the Claimant fails to give the exact identity and extent of the land he is claiming, his action would be dismissed. See RUFAI VS RICKETIS 2 WACA 95; ARABE VS ASANLU (1980) 5 – 7 SC. 78.

The Claimant described the land in dispute in paragraph 6 of his claim thus;
“The farmland referred to in (5) above is sharing boundary in the eastern and southern side with the farmland of Abgai, in the northern side with the farmland of Ba Pindar and in the western side with the farmland of Ba Ahmadu”

The description of the land in dispute by the Respondents however so fundamentally differs from that of the Claimants that one wonders whether or not the parties are referring to the same portion of land.

In paragraph 2 of witness statement an oath, TELA MUSA, the sole witness of the Respondent said
“2) The land in dispute is very vast and is a joint family land extending to about one square kilometere and shares boundary in the eastern part with Pinar Watsai and Abugai Watsai in the western part, it shares boundary with Modu Ngu and Mutah Madu, it shares boundary on the northern part with Bulama Watila while in the Southern part, it shares boundary with Abdullahi Dawur Abuga Watsai and Nkeki Pogu, in between the land particularly between north and southern, a road passes from Askira to Biu through Ngulde village”.

​The test of establishing the certainty of the land in dispute and its identity has been settled by the Court in several cases. See AJE KWADZO VS ROBERT KWASI–ADJEI 10 WACA 274. AREMU VS ADETORO (2007) 16 NWLR PART 1060 P. 244, TOBI, J.S.C. (of blessed memory), had this to say on the test in AREMU VS ADETORO (SUPRA)
“The test for the establishment of the identity of land is whether a surveyor can from the record, produce an accurate plan of such land”. While it is the law that a plan is not in all cases a sine qua non, some description is necessary to make a disputed land ascertainable. See AWERE VS LASOJU (1975) NMLR 100; AKPAGBUE VS OSEMWENKHAE (1977) 10NWLR (PT 8525) 358”

In the absence of the evidence of the boundary men, the descriptions of the land in dispute by the parties are in tumult. A surveyor in my view cannot produce an accurate plan from the record. The Claimant has failed to discharge his first duty in a claim for declaration of title to land. In order not to waste precious judicial time, a Claimant in an action for declaration of title to land should either:
a. Cause the land in dispute to be surveyed and cause the survey plan to be tendered through his surveyor
b. Or pray the Court for inspection of the land in dispute and cause evidence in respect of the boundaries to be adduced during the inspection– UHUNMWANGHO VS OKOJIE & ORS (1982) 9SC. 101; BRIGGS VS BRIGGS (1992) LPELR – 804 (SC), in the presence of parties and respective witnesses or subsequently
c. Call the boundary men as witnesses in Court to identify the boundaries and be cross-examined thereon. Or 
d. Where portions of the land in dispute are being contested by the parties, cause a composite plan to be filed, tendered and the surveyor to give evidence in respect thereof. AGBA VS EDIBI (2015) LPELR – 258 53 (CA).

The Claimant has failed to prove the identity of the land in dispute. I resolve this issue in the circumstance in favour of the Respondents.

So also on issue (2), the Claimants failed to identify the part of the farmland encroached upon. It is important that a piece of land to which a judgment is attached should have precise description to forestall further litigation in respect thereof and to assist in enforcement of Court orders on the land. Would a surveyor be able to chart a survey plan from the description of land trespassed upon? The answer is no.
The description of the part of the land trespassed upon in the claim and the respective adopted Statement on Oath of the witnesses is “some part of the land”. This certainly is not a precise description. I therefore resolve issue (2) in favour of the Respondents.

In the final analysis, this appeal fails for lacking in merit. It is accordingly dismissed. The judgment of the lower Court delivered on 10/01/2019 in SUIT NO. BOHC/GZ/CV/001/2018 is hereby affirmed. Parties are to bear their respective costs.

JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading in draft, the Judgment just delivered by my learned brother, Tunde O. Awotoye, J.C.A. I agree with the reasoning and conclusion that the Appeal is without merit.

The claim of the Appellants against the Respondents before the trial Court, as per paragraph 11 of their Statement of Claim, was for a declaration of title to land and trespass. Now the law is settled that the first duty of a person claiming a declaration of title to land is to identify with certainty, the identity of the land for which he seeks such a declaration.
In other words, in an action for a declaration of title to land, it is the duty of the Plaintiff to show with certainty the area of land to which his claim relates. The Plaintiff may do so by tendering a survey plan of the area he claims, or by giving oral evidence describing with such a degree of accuracy the parcel of land in a manner that will guide a Surveyor armed with the description in producing a survey plan showing accurately the boundaries of the land in dispute over which title is being claimed. See Ezukwu V Ukachukwu (2004) 7 NWLR (Pt. 902) 227, 249, per Edozie, J.S.C.

The reason for the desirability to establish the identity of the land over which a declaration is sought is to ascertain the property involved in the litigation. This is so as to avoid the award of a parcel of land or part thereof to a party who is not entitled to it due to uncertainty in the identity of the land in dispute. However, in the case where the opposing party knows the land in dispute and admits the pleadings on the identity of the land then identity will be taken as having been proved.
​The necessity of proving the identity of a parcel of land in cases of this nature was brought to the fore by Onnoghen, J.S.C. (later C.J.N.) in Dada V Dosunmu (2006) LPELR-909(SC) 18-19, F-B, when he said:
“The plaintiff must first and foremost plead and prove clearly the area of land to which his claim relates and the boundaries thereof; and if the location and size of the land is in issue, the plaintiff must prove the exact location and the area being claimed. It follows therefore that proof of the identity of the land in dispute is a sine qua non to establishing a case of declaration of title to land.”

In the instant case, it is evident even from the pleadings that the description of the area of land claimed by the Appellants was different from that of the Respondents. Therefore, the identity of the land itself was in issue. In failing to establish the identity of the land vide documentary evidence, such as a survey plan or credible oral evidence establishing the specific boundaries of the land such that a surveyor could draw a survey plan, was fatal to the Appellants’ claim. Thus, the learned trial Judge was right when he held that the Appellants, in failing to prove the identity of the farmland which they claimed to have inherited from their parents, as well as the part of the land allegedly encroached upon by the Respondents, they had failed to prove their claim. 

It is for this reason that I also find no merit in the Appeal. It fails and is dismissed. I endorse the consequential Orders made in the lead Judgment.

EBIOWEI TOBI, J.C.A.: My lord, T. O. Awotoye, JCA afforded me the opportunity of reading in draft, the lead judgment just delivered. I also dismiss the appeal and affirm the decision of the lower Court as the Appellants’ description of the land in dispute does not meet the requirement of the law in the duty placed on the Appellant to properly describe the land he has put in dispute. The law is settled beyond dispute to the effect that a Court of law cannot grant an action for title to land over a land that is not ascertainable or properly identified. The purpose for this position of the law is that the order of a Court must be clear as to the land covered therein so that parties are not mistaken and indeed whoever is picking up the judgment is clear as to the land covered by the order. See Auta vs Ibe (2003) 13 NWLR (pt 837) 247; Aiyeola V Pedro (2014) LPELR-22915; Awodi v. Ajagbe (2015)3 NWLR (Pt.1447) p.578; Onemu & Ors vs Commissioner of Agriculture & Natural Resources & Ors (2019) LPELR-47391.

The duty is on the Appellant to prove the identity of the land and if he fails to do so, his action will fail. There are various ways recognized by the law by which the Appellant can prove the land he has put in dispute. The duty to do so becomes more pronounced if the other party joins issues with the Appellant as to the identity of the land in dispute. The description becomes more important when the Defendant join issues with the Claimant on the location of the land. In this respect, I find the case of Ignatius Anyanwu & Ors vs Aloysius Uzowuaka & Ors (2009) 13 NWLR (pt 1159) 445 very instructive. The Apex Court held thus:
“In NWOBODO EZEUDU & ORS V. ISAAC OBIAGWU (1986) 2 NWLR (PART 21) 208 AT 220 this Court, per Oputa J.S.C., spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said: “The identity of land in dispute will be an issue, if and only if, the Defendants in their Statement of Defence made it one– that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”

Let me hasten to add that if the land is ascertainable, whether the Defendant agrees with it or not or gives it a different name, it is not relevant. See Chief Nafiu Alabelapa vs Lamidi Ajisefin (2017) LPELR-43234; Atanda vs Iliasu (2013) 6 NWLR (pt 1351) 529.

The Appellant can identify the land by pleading or tendering a survey plan. If a survey plan is not available, the Appellant can make up for it by giving a real time, proper description of the land in such a way that a surveyor will be able to produce a survey plan from the description. See Ogundalu V Macjob (2015) LPELR-24458; Atanda V Iliasu (2012) LPELR-19662.
The fact that it may be difficult to produce a survey plan from the description does not mean that the land is unascertainable. It may be difficult but once it is not impossible to produce a survey plan based on the description, the land will be said to be ascertainable. This is the position of the law.

​Let me now relate this to the facts of the case that culminated into the appeal. The Appellants in paragraph 2, gave a description of the land as a vast land but went on to state the boundaries of the land. This in my opinion is not definite enough as it did not state the dimension or features in the vast land which part of it is put in dispute. It is not just enough in some instance just to state the boundary neighbours of the land in dispute and more so when they were not called as witnesses.

The description given in paragraph 2 is confusing and in the circumstance, a visit to the locus would have solved it.

Another fundamental challenge in the case of the Appellants was that there are contradictions in the case of the Appellants as to the boundary neighbours. In the pleading, the neighbours are the farmland of Agbai on the East and South, the farmland of Ba Pindar on the North and the farmland of Ba Ahmadu on the West but in the witness deposition of the Appellants, the boundaries are the farmland of Agbai on the East and South, the farmland of Ba Pindar on the North and the farmland of Ba Ahmadu on the West.

The contradictions as to the description of the land are fundamental and as such, the land cannot be said to be properly ascertained.

For the above reason and much more for the fuller reasons in the lead judgment of my learned brother, T.O. Awotoye, J.C.A., I also dismiss this appeal affirming the judgment of the lower Court. I abide by the order as to cost.

Appearances:

M. ALKALI WITH M. U FARUG, A. M. SHUWA, I. M. JA’AFAR For Appellant(s)

S. ALI ESQ WITH R. HAMMAN, Y. ADAMU & Y DALI For Respondent(s)