TUKURA & ORS v. MINDAI & ORS
(2021)LCN/15680(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, December 10, 2021
CA/ABJ/97/2019
Before Our Lordships
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. TAMU TUKURA 2. AUDU TUKURA 3. UMARU APPELANT(S)
And
1. MALLAM IBRAHIM MINDAI (Suing For Themselves And The Entire Mindai Family) 2. ADAMU MINDAI 3. SALIHU MINDAI RESPONDENT(S)
RATIO
THE PURPOSE OF A GROUND OF APPEAL
The purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment appealed against. In other words, the essence of a ground of appeal is to give notice to the adverse party of what he is expected to encounter at the appellate Court so once a ground of appeal is clear and fully understood by the respondent, it cannot be declared incompetent. See – Agwu v. Julius Berger (Nig.) Plc. (2019) 11 NWLR (Pt. 165 at 172 R. 8. PER ADUMEIN, J.C.A.
WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM ONE GROUND IN THE NOTICE OF APPEAL
It is now a general principle of law that an issue for determination must arise from one ground or more in the notice of appeal and that an issue not covered by a ground of appeal is incompetent. SeeA.-G; Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Lasisi Ogbe v. Sule Asade (2009) 18 NWLR (Pt. 1172) 106; Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; David Amadi v. Attorney-General of Imo State (2017) 11 NWLR (Pt. 1575) 92 and Dr. Ray Pedro Ugo v. Augustina Chinyelu Ugo (2017) 18 NWLR (Pt. 1597) 218. PER ADUMEIN, J.C.A.
WHETHER OR NOT FINDINGS NOT APPEALED AGAINST ARE DEEMED TO BE CORRECT
The law is settled that findings or decisions not appealed against are deemed to be correct. See Ejowhomu v. Edet-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39)1; Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 346; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Wike E. Nyesom v. Hon. (Dr.) Dakuku A. Peterside & Ors. (2016) 1 NWLR (Pt. 1492) 71; Madam Adunola 12 NWLR (Pt. 1421) 252 and Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria & Ors. (2018) 10 NWLR (Pt. 1627) 320.
The trial Court rightly found that both parties could not prove their respective claim and counterclaim by traditional history or evidence. The law is that a claimant can still prove his title by acts of ownership, which are numerous and positive enough to warrant a conclusion that the claimant is truly the owner of the land in dispute, even where he fails to prove his root of title. See Samuel Akinwale Owoeye v. Chief Daniel Adefehinti Oyinlola (2012) 15 NWLR (Pt. 1322) 84; Arum v. Nwodo (2013) 19 NWLR (Pt. 1362) 374 and Okwara Ojinaka Okwaranonobi v. Ibeke Mbadugha (2013) 17 NWLR (Pt. 1383) 255. PER ADUMEIN, J.C.A.
WAYS OF CLAIMING DECLARATION OF TITLE TO LAND
As settled by a litany of judicial decisions or pronouncements, a claimant in an action for declaration of title to land can prove his claim or case on anyone or a combination of any of the five following ways:
1. by traditional history.
2. by production of documents of title.
3. by acts of ownership, numerous and sufficiently positive to warrant an inference that he is the true owner.
4. by proving acts of long possession of and enjoyment of the land under Section 145 of the Evidence Act.
5. by proving ownership or possession of the adjacent or contiguous land.
See Idundun v. Okumagba (1976) 9 – 10 SC 224; Piaro v. Tenalo (1976) 12 SC 31; Omorogie v. Idugiemuanye (1985) 2 NWLR (Pt. 5) 41; Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301; Eigbejale v. Oke(1996) 5 NWLR (Pt. 447) 128; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460; Alhaji Lasisi Salisu & Anor v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535) 242, and Mr. Sunday Ziregbe v. Mr. Ochuko Eyekpimi (2020) 9 NWLR (Pt. 1729) 327. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondents were the claimants in Suit No. NSHC/MN/20/2016 instituted by way of a writ of summons in the High Court of Niger State, holden at Minna, in which they sought against the appellants, who were the defendants, the following relief:
“1. A declaration of title to the disputed land by way of deemed ownership/customary rights of occupancy over the land in dispute and that the plaintiffs are entitled to use the land and economic trees thereon to the exclusion of the defendants.
2. A declaration that the continuous interference by the defendants to the use of the land in dispute and economic trees amounts to trespass and to pay general damages of One Million Naira (N1,000,000.00) for trespass.
3. A perpetual injunction restraining the defendants whether by themselves, their agents, privies, assigns or whoever and however called from any act that may undermine the legal ownership and possessory rights of the plaintiffs”.
The appellants denied the respondents’ claim and, by their statement of defence, they counterclaimed as follows:
1. An order for declaration of title farmland which its boundaries are described in paragraph 7 of the statement of defence.
2. An order of perpetual injunction restraining the plaintiffs, their privies, agent and successors in title, heirs nor any body claiming through them from entering or further trespass or doing anything on the land.
3. General damages to the tune of N500,000.00.
4. Two Hundred Thousand Naira only as cost of litigation.”
By a judgment delivered on the 12th day of December, 2018 the trial Court entered “judgment for the plaintiffs as per their statement of claim and grant all the reliefs therein”; but the appellants’ counterclaim was dismissed. This appeal is against the said decision.
The appellants’ brief was filed on 20/05/2020 but it was deemed as properly filed on 24/06/2020. In the appellants’ brief, learned counsel formulated two issues for determination as follows:
“1. Whether the respondents by their pleadings and evidence discharged by traditional evidence the burden of proof required for the judgment of declaration of title to the land in dispute subject of this appeal in their favour (Grounds 1, 2, 3 and 4).
2. Whether the learned trial Judge properly evaluated the evidence adduced in this case, having regard to the state of pleadings and evidence in awarding the entire land in dispute to the respondent (Grounds 1, 2, 3, 4 and 5).”
Philip K. Emmanuel, Esq.; learned counsel for the respondents distilled the following issues for determination:
“a. “Whether, having regard to the pleadings and totality of evidence adduced, the Trial Court was right in granting title the respondents”. Distilled from grounds 1, 2, and 4 of the Notice of Appeal.
b. “Whether the appellants clearly and precisely ascertained or identified the land being claimed by them as required by law”. Distilled from ground 3 of the Notice of Appeal.
c. “Whether having regard to the peculiar and exceptional facts and circumstances of this case, the Trial Court was justified in awarding the Respondents One Million Naira (1N,000,000.00K) only as general damages for trespass”. Distilled from ground 5 of the Notice of Appeal.”
PRELIMINARY OBJECTION
The respondents’ brief was filed on 17/07/2020 and in it, learned counsel raised a preliminary objection as follows:
“PRELIMINARY OBJECTION
Notice is hereby given that on the day slated for hearing/adoption in the substantive appeal, the respondents shall urge the Honourable Court to dismiss the appeal based on the following reasons.
The appellants in their notice of appeal which was prepared, signed and dated on the 10/1/2018 (at least, 10 months before judgment was delivered) raised five (5) grounds of appeal, challenging the decision of the trial Court delivered on the 12/5/2020 but deemed as properly filed and served on the 24/6/2020, the appellants raised two issues for determination at page 7 of the said brief.
The 1st issue for determination which raises specific issue of traditional history was distilled from grounds 1, 2, 3 and 4 of the Notice of Appeal. Again, the appellant formulated another issue No. 2 dealing with evaluation of evidence stating that it was distilled from grounds 1, 2, 3, 4 and 5 again.”
The law requires that, where a preliminary objection is raised in an appeal or a cross appeal, it should be taken and determined first. See Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637; Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt. 448) 255; Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319 and Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326.
Therefore, the respondents’ preliminary objection will be resolved first.
Learned counsel for the respondents contended that the two issues formulated by the appellants “are unarguable and incompetent”. Relying on the cases ofD.E.N.R. Ltd. v. Trans. Int’l Bank Ltd. (2008) 18 NWLR (Pt. 1119) 399; Ogbe v. Asade (2009) 18 NWLR (Pt. 1172) 106 and Fawehinmi v. G.M.H (Nig.) Ltd. (2018) 12 NWLR (Pt. 1633) 197, learned counsel submitted that “the law is settled that a single ground of appeal cannot give birth to more than one issue for determination as proposed in this appeal”.
Counsel argued that the appellants “undesirably formulated the 1st issue from unrelated grounds of appeal which is not permissible in law” and in support he referred the Court to the case of P. & C.H.S.C. Ltd. v. Migfo (Nig.) Ltd. (2009) 11 NWLR (Pt. 1153) 611. He submitted that “the omnibus ground cannot be relied upon to challenge specific finding (of “Traditional history”) as envisaged by the 1st issue for determination supposedly distilled from ground 1 and others”. In support of this submission, learned counsel referred the Court to the cases of Aiguoreghian v. State (2005) 1 NCC 458; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60 and FRN v. Ibrahim (2015) 4 NWLR (Pt. 1450) 411.
Placing reliance on the cases of Dungal v. Soro (2019) 10 NWLR (Pt. 1679) 37; Ogbe v. Asade (supra) and Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 113, learned counsel for the respondents stated and submitted as follows:
“My Lords, issue No. 1 as formulated by the Appellants touches on proof of title by traditional historyand was purportedly distilled from grounds 1 (which is an omnibus ground); ground 2 (dealing with contemporary acts of ownership); ground 3 (identity of the disputed land); and finally, ground 4 (recent acts of ownership). A calm perusal of the grounds of appeal (Nos. 1-4) as can be found at pp. 402-405 of the Notice of Appeal cannot sustain the 1st issue for determination. Put differently, none of the grounds complaint on prove of title by traditional evidence.
The law is firmly settled that issues for determination in an appeal must arise from the grounds of appeal filed by the appellant and arguments thereon traceable to the issues and grounds of appeal from which the issues emanate and as such, an issue for determination not covered by a ground of appeal (as in the instant case) is incompetent.”
In finally urging the Court to uphold the preliminary objection, learned counsel contended, inter alia, as follows:
“Again, we humbly submit that there is no single ground in the Appellants’ Notice of Appeal that can sustain any of the two issues formulated and argued at pp. 7-20 of the appellants’ brief of argument before this Honourable Court. While issue one (1) is said to be derived from both an omnibus ground of appeal (ground 1) and other specific issues of law (ground 2-4), issue no. two (2) dealing with evaluation of evidence which ought to have been distilled from ground 1 alone, was mixed with other specific points of law as revealed by the complaint embodied in grounds 2-5 of the Notice of Appeal. To this extent, the mixing of this unrelated points rendered the entire issues and argument upon which they are founded invalid in law. We refer to OBASI V. MIKSON EST. IND. Ltd. (2016) 16 NWLR (pt. 1539) 335 at 348 ratio 21; SOGUNRO V. YEKU (2017) 9 NWLR (pt. 1570) 290 at 340, para. A; TIAMIYU V. OLAOGUN (2008) 17 NWLR (pt. 1115) 66 at p. 92, para. C.
The appellants’ issue 2 and the argument formulated on same is with due respect, incompetent in law. At p.15 of their brief of argument, appellants formulated issue no. 2 from ground 1, 2, 3, 4 and 5 of the Notice of Appeal and after introducing the issue in one page (16), they proceeded from pages 17-19 to argue the issue of traditional history which they had canvassed under their issue No. 1. My Lords, with all humility, issue No.2 and the entire arguments proffered in support thereof from pp.15-19 of the appellants brief of argument are all incompetent in the absence of any ground of appeal to sustain same. We humbly refer to WAEC V. AKINKUMI (2008) 9 NWLR (pt. 1091) 151 at 166, paras. G-H.
Similarly, there is no correlation between the issue as formulated and the argument canvassed in support of same rendering same issue and arguments incompetent. We humbly refer to the opinion of the learned author Ibe Ikwechegh: Civil Practice in the Court of Appeal, (3rd Edition) pages 329-333.”
The full response of the learned counsel for the appellants is as follows:
“My lords, the procedure for raising a preliminary objection to the grounds of appeal in the Court of Appeal has been laid in the case of Nsirim v. Nsirim (1990) 5 S.C. (pt. 11); (1990) 5 NWLR (Pt. 138) 285 at 296 that for an objection to the competence of ground or grounds of appeal to be validly raised and thereby worthy of consideration by the Court, the respondent must first and foremost file a Motion on Notice in the Court stating the grounds on which the objection is based so as to give notice the appellant, otherwise, the appellant would be taken by surprise. The respondent subsequently follows it up with the filing of the respondent’s brief in which argument on the objection is proffered. See Dada v. Dosunmu (2006) 9 S.C.
My lords, where a rule of Court has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and here, the issue of doing substantial justice does not or should not arise. The party who failed to comply with the rule has himself to blame. Dada v. Dosunmu (supra).
In the instant case, it is evident that the respondents did not file a Motion on Notice before they raised the alleged objection against the grounds of appeal. They only raised the objection in their respondents’ brief and proffered argument therein. The Honourable Court is respectfully referred to pages 4-10 of the Respondents Joint Brief of Argument. We respectfully submit that the failure of the Respondents in complying with the requirement of the Rules as required by the Rules of this Honourable Court affects the competence of the objection as raised in the Respondents’ Brief and rendered same incompetent. We urge your lordships to so hold.
My lords, when an appellant alleges that a decision is against the weight of evidence, he means that when the evidence he adduced is balanced against that of the respondent, any judgment in the respondent’s favour that should have been given to the totality of the evidence adduced. The competent is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence. See – Awusa v. Nigerian Army (2018) 12 NWLR (Pt. 1634) 421 SC.
The purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment appealed against. In other words, the essence of a ground of appeal is to give notice to the adverse party of what he is expected to encounter at the appellate Court so once a ground of appeal is clear and fully understood by the respondent, it cannot be declared incompetent. See – Agwu v. Julius Berger (Nig.) Plc. (2019) 11 NWLR (Pt. 165 at 172 R. 8.
In the instant case, the respondents did not complain that they did not understand what the appellant grounds of appeal meant. Further, the grounds of appeal are clear and unambiguous on the basis of which the Respondents adequately responded by filing respondent’s brief of argument. Thus, the respondents were not misled. We urge your Lordships to so hold.”
By way of a preamble, it is true that the date on the notice of appeal, spanning pages 402 to 405 of the record of appeal, is the “10th day of Jan; 2018” but it was actually filed on “10/1/2019”. The date relevant to the Court is the date a process is filed. In this case, what is relevant and important is the date the notice of appeal was filed and it was filed on the 10th day of January, 2019. The judgment appealed against was delivered on the 12th day of December, 2018 and the notice of appeal was filed after the trial Court delivered its judgment.
The grounds in the notice of appeal are as follows:
“GROUND ONE (1)
The decision of the trial Court is against the weight of evidence.
PARTICULARS OF ERROR
a. That the learned Judge failed to properly evaluate the evidence led before the trial Court.
b. The failure to properly evaluate the pieces of evidence led has occasioned a miscarriage of justice to the appellant.
GROUND TWO (2)
The learned trial Judge erred in law when he held that:
“I am convinced that the plaintiffs led credible evidence of exercise of contemporary act of ownership on the land in dispute e.g. by borrowing the land which is contiguous to the land in dispute…..”
PARTICULARS OF ERROR
a. That the issue of gift of the land in dispute was denied by the defendants in their paragraphs 7 of the Joint’s Statement of Defence and Counter-claim.
b. That the plaintiffs’ witnesses testified that they are not aware of the borrowing especially the PW3.
c. That the defendants’ on the other hand have led more credible evidence to show that the land in dispute belongs to them.
GROUND THREE (3)
The learned trial Judge erred in law when he held that:
“…the defence witnesses were in disarray regarding the identity of the land in question”.
PARTICULARS OF ERROR
a. That the boundaries of the land is not in issue before this Court, this is because from the pleadings of both parties and the testimony of the witnesses for both sides it is clear that both of them clearly knows the land in dispute.
b. That the area of land in dispute is well known to all the parties in this case, this is very apparent from the pleadings and the testimony of the witnesses in chief and under cross examination.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
c. That where the locations, features dimension of the land in dispute is well known to the parties in a land dispute such boundaries of the land cannot be said to have been giving in respect of a land that is not certain.
d. That the description of a land in dispute is precise and delineating which was even observed during visit to the locus.
GROUND FOUR (4)
The learned trial judge erred in law when he held that:
“…the 1st plaintiff in exercise of acts of ownership went and spread chemical on the land in dispute before the 1st defendant went and made heaps.”
PARTICULARS OF ERROR
a. That the lower Court failed to examine paragraph 12 of the Joint Statement of Defence and Counter-Claim dated 22nd June, 2016, where the 1st defendant stated that the 1st plaintiff trespassed and spread chemical in his farm land, where they are farming as his personal farm.
b. That all the defendants’ witnesses testified that the 1st plaintiff was the person that trespassed into the defendants’ farm and spread chemical therein.
Ground Five (5)
The cost of One Million Naira Only (N1,000,000.00k) awarded in favour of the respondents by the learned trial Judge as general damages for trespass is excessive, arbitrary and lack foundation in law.
PARTICULARS OF ERROR
a. That the respondent did not provide any basis for assessment and/or award of damages by the Court.
b. That there was no factual basis for the award of One Million Naira Only (N1,000,000.00k) awarded in favour of the respondents by the learned trial Judge as general damages for trespass.
c. That the One Million Naira Only (N1,000,000.00k) awarded in favour of the respondents by the learned trial Judge as general damages for trespass is excessive, arbitrary and lack foundation in law”.
From the grounds of appeal, reproduced above, Grounds 1, 2, 3 and 4 relate to failure by the trial Court to properly evaluate the evidence before it and/or error in the trial Court’s conclusions based on its evaluation of the evidence. Ground 5 is a complaint on the award of N1,000,000.00 (One Million Naira) as general damages in favour of the respondents.
As can be seen from the appellants’ two issues reproduced earlier in this judgment, none of them is related to the complaint on award of general damages. The law is that a ground of appeal from which no issue is attached or distilled is deemed abandoned and the issue is liable to be struck out. See Sunday Modupe v. The State (1988) 4 NWLR (Pt. 87) 130; Iguedo Dieli v. Osakwe Iwuno (1996) 4 NWLR (Pt. 445) 622; Omowo Musa Ogun v. Chief J. O. Asemah (2002) 4 NWLR (Pt.756) 208; Rasheed Olaiya v. The State(2010) 3 NWLR (Pt. 1181) 423 and Isikilu Olanipekun v. The State (2016) 13 NWLR (Pt. 1528) 100.
The appellants, having not raised any issue from their fifth ground of appeal, are deemed to have abandoned ground 5 and the said ground of appeal is hereby struck out.
I think that Issue 1 identified by the appellants is quite abstract as it does not flow from, nor does it relate to any of the surviving four grounds of appeal. It is now a general principle of law that an issue for determination must arise from one ground or more in the notice of appeal and that an issue not covered by a ground of appeal is incompetent. SeeA.-G; Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Lasisi Ogbe v. Sule Asade (2009) 18 NWLR (Pt. 1172) 106; Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; David Amadi v. Attorney-General of Imo State (2017) 11 NWLR (Pt. 1575) 92 and Dr. Ray Pedro Ugo v. Augustina Chinyelu Ugo (2017) 18 NWLR (Pt. 1597) 218.
Issue 1 is hereby struck out for being incompetent, as it is not covered by any of the appellants’ grounds of appeal.
As submitted by the learned counsel for the respondents, the law is settled that a ground of appeal is supposed to encapsulate a single complaint against a decision of Court and two issues cannot be validly raised from one ground of appeal. See Niger Construction Ltd. v. Chief A. O. Okugbeni (1987) 4 NWLR (Pt. 67) 787; Chief Kafaru Oje v. Chief Ganiyu Babalola (1991) 4 NWLR (Pt. 185) 267; Lasisi Ogbe v. Sule Asade (2009) 18 NWLR (Pt. 1172) 106 and John Shoy Int’l Ltd. v. Federal Housing Authority (2016) 14 NWLR (Pt. 1533) 427.
Since Issue 1 has been struck out, I do not agree with the respondent that Issue 2 is incompetent because it is tainted with the fact that it covers ground 1 from which Issue 1 was also formulated. As it stands, Issue 2 covers grounds 1, 2, 3 and 4 of the appellants’ grounds of appeal and it is not infested with distillation of multiplicity of issues from one ground of appeal as prohibited by the principle of law against proliferation of issues.
The respondent’s preliminary objection succeeds only in part, because grounds 1, 2, 3 and 4 of the appellants’ grounds of appeal are competent. A fortiori the appellant’s second issue, raised from these four grounds of appeal, is competent. This issue should be, and will be, entertained and determined.
SUBSTANTIVE APPEAL
Based on the Court’s decision on the respondents’ preliminary objection, the live issue for determination is the second issue identified by the appellants, which is the same as the respondents’ first issue. For ease of reference, the issue is further reproduced:
“Whether the learned trial Judge properly evaluated the evidence adduced in this case, having regard to the state of pleadings and evidence in awarding the entire land in dispute to the respondent.”
Learned counsel for the appellants referred to the cases of Agbabiaka v. Saibu & Ors. (1998) 7 SC (Pt. 2) 167 and Arije v. Arije & Anor. (2018) LPELR – 44193 (SC)and that “the duty of a Court in ensuring justice is done is to evaluate the evidence before it before coming to a finding based on the evaluated facts”.
The learned counsel proceeded to argue, inter alia, that:
(i) the respondents’ evidence was “full of contradictions and uncertainties” because PW4 – the respondents’ star witness “made it clear to the Court that the subject of this appeal belongs to his family and not the respondents”.
(ii) the respondents’ witnesses – PW1 (Adamu Barde), PW2 (Yerima Makun), PW4 (Alkali Bawa) and PW5 (Adamu Mindai) gave contradictory evidence and, therefore, “the Court is not in a position to choose one and reject the other, the two pieces of evidence must be rejected”.
(iii) “the entire evidence of PW1 – PW5 lacked necessary integrity to be credible, aside not knowing the original founder, the chain of interveners, its devolution to the respondents….”
(iv) the appellants’ evidence, through “the DW1 and DW2, Yusuf Danda and Umaru Tukura gave evidence in line with pleadings and retained same on cross-examination”.
(v) the appellants’ witnesses (DW1 and DW2) “stated the boundaries correctly and uncontroverted the name of the founder, Pada Tukura”.
(vi) a trial Court only considers(sic) the witness statements on oath of PW1 – PW5 without contradictions made on cross-examination at the trial”.
The learned counsel for the respondent responded by stating that “proof in civil case is based on balance of probability (sic) or preponderance of evidence”. Counsel argued that the trial Court carried out a detailed, painstaking and comprehensive analysis of the evidence before arriving at the conclusion that the appellants’ evidence, regarding the founder of the disputed land, was contradictory and at variance with their pleadings and these findings of the trial Court were not appealed against.
Learned counsel also argued that the trial Court finally arrived at the conclusion that the respondents led credible evidence of acts of ownership and possession of the disputed land. The learned counsel finally urged the Court to resolve this issue in favour of the respondents, because the trial Court fully evaluated the evidence before rightly granting the respondents’ claim.
The judgment of the trial Court spans pages 375 to 401 of the record of appeal. The trial Court referred to the claim and counterclaim of the parties, summarized the addresses of the parties’ learned counsel, the points of law raised by the parties and/or arising from the facts of the case, the legal principles on the relevant issues or points of law raised or applicable, cited and referred to case law before it concluded or found, with elaborate reasons:
1. “… the evidence of traditional history relied upon by the plaintiffs in support of their pleadings is contradictory, not cogent and is in conclusive(sic).
However, it is not the plaintiffs’ evidence of traditional history that is in conclusive(sic). The evidence adduced by the defendants on traditional history is equally in conclusive(sic). It is affected by the same vice that afflicted the case of the plaintiffs.”
(See page 394 of the record of appeal)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
2. “….. the plaintiffs led credible evidence of exercise of contemporary act of ownership on the land in dispute e.g. by borrowing the land which is contiguous to the land in dispute. The plaintiffs led credible evidence of exercise of contemporary act of ownership on the land in dispute e.g. by borrowing the land which is contiguous to the land in dispute.
PW1 under cross examination stated “where I am living presently, it was Mindai that gave it to me Yes where I now live was given to my father and I continue to live there….”
This same witness had earlier told the Court at paragraph 2 of his statement on oath that he has been in occupation of the said land without protest from either the defendants or any other person from Bari village or its environ.
This piece of evidence has been corroborated by PW5 at paragraph 17 of his witness statement on oath.
Secondly, there is ample evidence in the record of the Court showing that the land on which the defendants are occupying was given to them by the plaintiff’s father, because he married plaintiff’s aunty called Kwago. Although the said land is not in dispute, but is adjacent to the land in dispute. Evidence of PW1, PW2 and PW3 is instructive in this regard.
Thirdly, there is undeniable evidence that the 1st plaintiff in the exercise of acts of ownership went and spread Chemical (herbicide) on the land in dispute before the 1st defendant went and made heap.”
(See pages 396 to 397 of the record of appeal)
3. “On the other hand, defendants could not establish exercise of act of ownership over the disputed land”.
(See page 398 of the record of appeal)
4. “Unlike the defendants, the plaintiff have proved by credible evidence the area of the land their claim relates.”
(See page 397 of the record of appeal)
5. “In fact, the defendant witnesses are not united on the location of the land in dispute”.
(See page 400 of the record of appeal)
6. “To worsen the defence case when the Court visited the locus on 13/7/2018, the defendants took the Court across Kpadna river to far away Bari village as the boundary of their land by the North. This is contrary to the pleaded facts at paragraph 10 of the joint statement of defence and oral evidences given by their witnesses in Court.
It can easily be gleaned from the above illustration that the defence witnesses were in disarray regarding the identity of the land in question”.
(See page 400 of the record of appeal)
Upon a careful reading of the judgment of the trial Court, I can unequivocally pronounce that the learned trial Judge – Hon. Justice Abdullahi Mikailu, properly and thoroughly evaluated the evidence produced or tendered by both parties before arriving at its very reasonable conclusion that “the plaintiffs have proved their case on preponderance of credible evidence or balance of probability”.
I wish to point out that most of the relevant findings of the trial Court, some of which were reproduced above, were not appealed against by the appellants. The law is settled that findings or decisions not appealed against are deemed to be correct. See Ejowhomu v. Edet-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39)1; Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 346; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Wike E. Nyesom v. Hon. (Dr.) Dakuku A. Peterside & Ors. (2016) 1 NWLR (Pt. 1492) 71; Madam Adunola 12 NWLR (Pt. 1421) 252 and Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria & Ors. (2018) 10 NWLR (Pt. 1627) 320.
The trial Court rightly found that both parties could not prove their respective claim and counterclaim by traditional history or evidence. The law is that a claimant can still prove his title by acts of ownership, which are numerous and positive enough to warrant a conclusion that the claimant is truly the owner of the land in dispute, even where he fails to prove his root of title. See Samuel Akinwale Owoeye v. Chief Daniel Adefehinti Oyinlola (2012) 15 NWLR (Pt. 1322) 84; Arum v. Nwodo (2013) 19 NWLR (Pt. 1362) 374 and Okwara Ojinaka Okwaranonobi v. Ibeke Mbadugha (2013) 17 NWLR (Pt. 1383) 255.
In this case, the respondents, as plaintiffs in the trial Court, averred in paragraphs 6, 16 and 36 of their amended statement of claim, respectively, as follows:
“6. That the plaintiffs state that the land in dispute is a large vast of land belonging to the plaintiffs, and that they have been in quite possession, cultivation and enjoyment of the subject matter of this suit and the economic trees and other portions of land surrounding the said land in dispute. An evidence shall be led at the trial of this matter to show that the plaintiffs have been cultivating and harvesting the corps/fruits from the economic trees on the land for upward of 60 years and above now without hindrance from anyone except the recent interference by the defendants.”
16. The plaintiffs avers that there are mango trees, orange trees, locus beans trees on the land in dispute”.
36. That the plaintiffs aver that they are the people who planted the economic trees and have been harvesting them without any interruption from anybody if not of recent by the defendant.”
As settled by a litany of judicial decisions or pronouncements, a claimant in an action for declaration of title to land can prove his claim or case on anyone or a combination of any of the five following ways:
1. by traditional history.
2. by production of documents of title.
3. by acts of ownership, numerous and sufficiently positive to warrant an inference that he is the true owner.
4. by proving acts of long possession of and enjoyment of the land under Section 145 of the Evidence Act.
5. by proving ownership or possession of the adjacent or contiguous land.
See Idundun v. Okumagba (1976) 9 – 10 SC 224; Piaro v. Tenalo (1976) 12 SC 31; Omorogie v. Idugiemuanye (1985) 2 NWLR (Pt. 5) 41; Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301; Eigbejale v. Oke(1996) 5 NWLR (Pt. 447) 128; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460; Alhaji Lasisi Salisu & Anor v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535) 242, and Mr. Sunday Ziregbe v. Mr. Ochuko Eyekpimi (2020) 9 NWLR (Pt. 1729) 327.
The respondents proved their entitlement to the land in dispute by proving the acts of ownership thereof and the land connected thereto. They were rightly awarded title to the land in dispute by the trial Court.
In conclusion, the live issue in this appeal is resolved against the appellants. Accordingly, this appeal is hereby dismissed.
The judgment of the trial Court delivered in Suit No. NSHC/MN/182/2012 on the 12th day of December, 2018 is hereby affirmed.
The sum of N200,000.00 (Two Hundred Thousand Naira only) is hereby awarded as costs in favour of the respondents and against the appellants.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading the lead judgment of my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA. I agree entirely with the findings as well as conclusions therein, and adopt them as mine.
For the more detailed reasons in the lead judgment, I also resolve the live issue that calls for determination against the Appellants and consequently dismiss this appeal for lack of merit.
I abide by all the consequential Orders.
BATURE ISAH GAFAI J.C.A.: I have before now read in draft the Judgment just delivered by my learned brother Adumein, JCA.
I am in agreement with the sound reasonings expressed therein and the conclusions reached by my lord on this Appeal; which I adopt as mine too.
It is manifestly clear that this Appeal is devoid of merit both in its Grounds and Issues argued on it. For this and the fuller reasons stated in the lead Judgment, I too hereby dismiss this Appeal. I abide by the Order on cost made in lead Judgment.
Appearances:
Musa Yahaya, Esq. with B. Y. Yerima, Esq. and Abubakar Musa, Esq. For Appellant(s)
Philip K. Emmanuel, Esq. For Respondent(s)