VICTOR & ORS v. ZANE (2020)

VICTOR & ORS v. ZANE

(2020)LCN/15784(CA)

In the Court of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/YL/162/19

Before Our Lordships:

Chidi NwaomaUwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. FRANCIS VICTOR 2. WILFRED VICTOR 3. NIMROD VICTOR APPELANT(S)

And

JONAH ZANE RESPONDENT(S)

RATIO:

THE BURDEN OF PROOF AND A DECLARATORY RELIEF

It is the law that in civil cases, the burden of proof is on the plaintiff to establish his claim based on the preponderance of evidence and balance of probabilities, the Respondent as plaintiff established his case which resulted in the trial Court granting him the declaratory reliefs sought. The Respondent pleaded and adduced evidence in support to entitle him to the declaration sought which was granted by the trial Court having been satisfied that he proved his case as required by law, affirmed by the lower Court. See, OKEREKE VS. UMAHI (2016) 11 NWLR (PT. 1524) 438. CHUKWUMAH VS. SHELL PETROLEUM (NIG.) LTD (1993) LPELR – 864 (SC) P. 74, PARA. F. Where a declaratory relief is sought, the Court draws inspiration from consecrated principles, the party seeking the relief must lead evidence upon which the relief is granted or denied. The Court has to be satisfied, on the evidence led by the plaintiff at the trial, to show that he is entitled to the relief sought even where there is an admission in the defendant’s pleadings. CHIDI NWAOMA UWA, J.C.A.

THE WAYS A PARTY CAN PLEAD AND PROVE A TRADITIONAL HISTORY

It is the law that a party relying on traditional history as the Respondent did, must plead and prove the following:
1. Who founded the land in dispute?
2. In what manner the land was founded?
3. The history of the devolution of the land to the present claimants.
See, PIARO VS. TENALO (1976) 12 SC. 31; OHIAERI VS. AKABEZE (1992) 2 NWLR (PT. 221) 1; ANYANWU VS. MBARA (1992) 5 NWLR (PT. 242) 386 and FALEYE & ORS. VS. DADA & ORS. (2016) LPELR – 40297 (SC) PP. 22 – 23, PARAS. E – A. In the present case, the respondent as the plaintiff at the trial Upper Area Court proved that he founded the land, cleared it (deforested) in 1985 and has been in possession of it since then and has been exercising acts of ownership over the land by farming on it and leasing out portions of the land in dispute for instance to the PW2 who farmed on part of the land in dispute and was paying royalties to the respondent. All these facts were not controverted by the appellants. An appellate Court would rarely interfere with the ascription of credibility to the evidence adduced at the trial Court unless the trial Court gives a wrong reason for believing or disbelieving the evidence of a witness. CHIDI NWAOMA UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Adamawa State High Court Yola, sitting in its appellate jurisdiction, presided over by Danladi Mohammed, J, delivered on 29th April, 2019 wherein the judgment of the trial Upper Area Court, Numan was upheld. The Appellants who were dissatisfied with the judgment further appealed to this Court.

The background facts are that the Respondent as plaintiff filed a suit against the Appellants as Defendants for a declaration of title at the Upper Area Court Numan. The Respondent in proof of his case called four (4) witnesses and closed his case, while the Appellants called three (3) witnesses in their defence. The trial Court after evaluating the evidence before it gave judgment in favour of the Respondent. The appellants who were dissatisfied with the judgment appealed to the Adamawa State High Court which upheld the judgment of the trial Court. On further appeal to this Court, the Appellants formulated a sole issue for the determination of the appeal thus: “Whether from the totality of the evidences (sic) adduced before the trial Court the lower Court was right to have held that the trial Court properly evaluated the evidences (sic) adduced before it” (Distilled form ground one of the Notice of Appeal).

The Respondent on his part adopted the sole issue formulated by the Appellants.
In arguing the sole issue, the learned counsel to the appellants M.N. Chikakson Esq. adopted and relied on his brief of argument filed on 11/10/19 in urging us to allow the appeal and set aside the decision of the High Court. It was submitted that the decision of the Lower High Court is perverse and runs counter to the evidence and pleadings before it which occasioned a miscarriage of justice. See, A.S.U. FEDERAL POLY OFFA VS. UBA PLC. (2014) ALL FWLR (PT. 748) PAGE 888 at 717 – 918, PARAGRAPHS H – A. It was alleged that the lower Court gave the opposite evaluation or interpretation of the evidence of the DW1 and DW2 in their testimonies. Also, that the evidence adduced by the respondent is contradictory and should be set aside. See, USEN VS. STATE (2013) ALL FWLR (PT. 689) PAGE 1131 at 1157 – 1158, PARAGRAPHS H – E. It was argued that the evidence of the PW1, PW2 and PW3 is hearsay because the witnesses relied on a statement given to them by another person, which is inadmissible in Court. The evidence of the PW4 was also said to be contradictory. See, UWEH VS. STATE (2013) 13 ALL FWLR (PT. 679) PAGE 1089 at 111, PARAGRAPH G. P. 1112, PARAGRAPHS B – D. The exceptions to when hearsay evidence could be admitted in evidence were enumerated by learned counsel while relying on the case of AJAEGBO VS. STATE (2018) 11 NWLR (PT. 1631) 506 – 507, PARAGRAPHS H – B. It was argued that the evidence of the respondent’s witnesses at the trial Court did not support the pleadings as plaintiff, therefore the Court ought not to have relied on same, it was inadmissible and ought to have been disregarded. See, ZACCALA VS. EDOSA (2018) 7 NWLR (PT. 1616) PAGE 528 at 546 – 547, PARAGRAPHS H – B. It was re-argued that the evidence of the PW1 and PW4 were contradictory of each other and at variance with their pleadings. It was the contention of the learned counsel that there is no evidence to show that the respondent had ever been in possession of the land in dispute. Further, that unchallenged and uncontradicted evidence is established against the person whom the evidence was adduced against and carries the status of true evidence. See, MATTEW VS. STATE (2008) 6 NWLR (PT. 1616) PAGE 561 at 580, PARAGRAPH F, HARUNA VS. STATE (2008) 11 NWLR (PT. 1631) PAGE 559 at 571, PARAGRAPHS F – G.

It was argued that the Appellants and Respondent admitted that the Respondent was paying Royalty to the Appellants’ father, the evidence of the DW1 and DW2 was reviewed. It was contended by the Appellants that the lower Court failed to consider the improper evaluation done by the trial Court of the evidence of the PW1 – PW4 and that if the evidence had been evaluated, the conclusion would have been in favour of the appellants. See, ZACCALA VS. EDOSA (supra). The evidence adduced by the parties at the Court was reviewed. The five ways to prove title or ownership of land were enumerated while reliance was placed on the case of AIGHOBAHI VS. AIFUWA (2006) 20 WRN PAGE 8. It was argued that the appellants established their root of title through traditional evidence by tracing same to their late father who first cleared the land in dispute, pages 17 – 18 of the printed records, the evidence of the DW1, pages 19 – 21, the evidence of the DW2 and pages 21 – 23, the evidence of the DW3 were referred to.

It was submitted that the Appellants’ father exercised his acts of ownership by giving portions of the land in dispute to the respondent to give Hausa settlers (PW2) who were paying tribute to him, the evidence of the DW2 was referred to at page 19 of the printed records. Further, that the DW3 also testified at page 22, that the land in dispute was given to the respondent by their late father and the respondent leased same to the PW2 (Hausa settler) who paid royalties to the respondent who paid same to the appellants’ father, it was argued that this has not been discredited. The judgment of the lower Court was said to be perverse, it failed to consider the fact that the trial Court failed to take the measurement of the land in dispute at the visit to locus in quo. It was concluded that the PW1 – PW3 did not give evidence to show that they first cleared the land in dispute. In response, the learned counsel to the Respondent S.J. Garba Esq. submitted that it is only the trial Court that had the advantage of seeing, observing the witnesses, their demeanor, candour or partisanship, integrity and manners that is in a position to attach probative value to the evidence presented before it except in exceptional circumstances when the appellate Court calls for additional evidence. See, SOGUNRO VS. YEKU (2017) 9 NWLR (PT. 1570) PAGE 290 at PAGES 321 – 322, PARAS. H – C (SC) and AWODI VS. AJAGBE (2015) 3 NWLR (PT. 1447) 578 at 612 PARAS. F – G.

It was submitted that the Apex Court is loath of upsetting or disturbing concurrent findings of the Courts below where there is nothing perverse or a miscarriage of justice having taken place or error of law on the face of the findings. See, NITEL LTD. VS. OKEKE (2017) 9 NWLR (PT. 1571) 439 at 471, PARAS. A – B.It was argued that the DW1 – DW3 did not give evidence to ascertain the description of the land in dispute, including the size and the boundary neighbours. It wassubmitted that no royalty was paid to the appellants’ father but, foodstuff was given to him because he was too old to farm, on his demise the respondent stopped giving the foodstuff. It was submitted that the Respondent established his case based on preponderance of evidence and a balance of probabilities which resulted in having judgment in his favour. See, OJO VS. AST. ASSOCIATES INCORP. (2017) 9 NWLR (PT. 1570) at 176 – 177, PARAS. 15 – 16. It was argued that the respondent established his title to the land in dispute through traditional history and the evidence of the PW1 – PW4, which was not discredited through cross examination. Further, that it is in evidence that it was the Respondent that gave the DW2 and DW3 a portion for farming purpose sometime in 2015, page 20 of the printed records of appeal. On what to prove when reliance is placed on traditional history of proving ownership to land, see, NRUAMAH VS. EBUZOEME (2013) 53 (PT. 2) (NSCQR) 88 and PADA VS. GALADIMA (2018) 3 NWLR (PT. 1607) 436 at 456, PARAS. D – E, 460, PARAS. A – B (SC). It was argued that the Respondent proved that he first cleared the land in dispute and farmed on it in 1985, the following year the father of the Appellants requested to be given a portion to farm on as an old man, which he was given. Further, that the trial Court was right to have ascribed probative value to the evidence of the respondent’s witnesses. See, SOGUNRO VS. YEKU (2017) 9 NWLR (PT. 1570) PG. 290 at PAGES 322 – 323, PARAS. D – A. It was concluded that the PW1 – PW4 were not cross examined by the appellants at the trial Court, we were urged to hold that there was proper evaluation done by the trial Court.

The sole issue formulated by the appellants which was adopted by the Respondent is the evaluation of evidence by the trial Upper Area Court which was affirmed by the Lower High Court on appeal to the said Court. The position of the law is that a trial Court has the singular privilege of seeing the demeanor of the witnesses before it and attaching probative value to their testimony. The trial Court is therefore able to assess the evidence adduced and in a better position to make its findings. In such a situation an appellate Court should not substitute its opinion or assessment of the evidence adduced for that of the trial Court. In AWODI VS. AJAGBE (2014) LPELR – 24219 (SC) P. 25, PARAS. D – F, his lordship Okoro, JSC stated the position of the law thus:
“Moreover, it is trite law that an appellate Court would be slow to disturb or reverse findings of fact made by the trial Court unless such findings are shown to be perverse having been based on inadmissible evidence or relevant and admissible evidence having been rejected which in either case occasioned a miscarriage of justice or that its findings were perverse. See, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT. 422) 252, ADIMORA VS. AJUFO (1988) 3 NWLR (PT 80) 1, OKAFOR VS. IDIGO (1984) 1 SC NLR 481, EBBA VS. OGODO (1984) 1 1 SC NRL 372.”
See, OBISANYA VS. NWOKO & ANOR (1974) LPELR – 2183 (SC) P. 13, PARAS. B – E, OMOREGBE VS. EDO (1971) LPELR – 2656 (SC) P. 11, PARAS. E – F and MUSA VS. STATE (2019) LPELR – 46350 (SC) P. 16, PARAS. A – D. The appellants had alleged that the decision of the trial Court which was affirmed by the Lower Court on appeal is perverse and a miscarriage of justice. The question that arises at this stage is: what is a perverse decision? A perverse decision of a Court arises in several ways. For instance, where the Court ignores that fact or evidence or misconceives the crux of the case presented, or took irrelevant matters into consideration which formed the basis of its decision or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case, or committed various errors that faulted the case beyond redemption, all of which would lead to a miscarriage of justice, in such a case the decision must be set aside on appeal but, where it is otherwise, the appellate Court would not interfere with the decision arrived at. See, ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 360; ADIMORA VS. AJUFO (1988) 3 NWLR (PT. 80) 1; AGBOMEJI VS. BAKARE (1998) 7 SC (PT. 1) 10; (1998) 9 NWLR (PT. 564) 1, ODIBA VS. AZEGE (1998) 7 SC (PT. 1) 79; (1998) 9 NWLR (PT. 566) 370, RABIU VS. KANO STATE (1980) LPELR – 2936 (SC) P. 111, PARAS. B – D MAMONU & ANOR. VS. DIKAT & ORS. (2019) LPELR – 46560 (SC) PP.53 – 55, PARAS. F – A and UDENGWU VS. UZUEGBU & ORS. (2003) LPELR – 3293 (SC) PP. 14 – 15, PARAS. G – C. Therefore, for the appellants to succeed with their allegation or argument, they would have to show that the findings or the decision is perverse.

I agree with the respondents’ learned counsel that in the evidence of the DW1 – DW3, none stated the size of the land in dispute and the extent. The boundary neighbours were not called to testify and the appellants did not describe the portion in dispute with certainty. On the other hand, the Respondent in his evidence as the PW4 testified that he was the first person to clear the land in dispute in 1985, the PW1 (who cleared his portion at the same time), his boundary neighbour gave evidence along the same line and both also stated that the PW4 (Respondent) gave a portion to the Appellants’ father to farm on his approach to give him a portion to farm, which he did for seven years before giving it out to another from whom he collected royalties. It is also on record that it was the Respondent that gave part of the land in dispute to the PW2 to farm on and he paid royalties to the Respondent. Similarly, the PW3 gave evidence confirming the fact that the Respondent gave out part of the land in dispute to the Appellants’ father to farm on also, that the Respondent had been farming on the land in dispute over the years. At pages 87 – 88 of the printed records of appeal, on evaluation of evidence adduced at the trial Area Court, the lower Court held thus:
“That the late father of the defendant/appellant farmed for 5 years and left and he look (sic) over his farmland. This pieces of evidence of PW4 corroborated that of PW1. The evidence of PW11 indicates that the plaintiff/respondent gave him the disputed land to farm on and have been giving royalty to PW4 (plaintiff/respondent). The evidence of PWIII the Sarkin Daji a 66 year old to the effect that the defendants/appellants father approached the plaintiff/respondent for a land to farm on and was given, that is the land in dispute.”

The above finding and/or analysis cannot be faulted, it is not perverse.
The Appellants as defendants made out that their father first cleared the land in dispute but, they were not present when he cleared the land in dispute. The Appellants’ witnesses, the DW1 – DW3 were not present, they gave evidence based on what they were told. The evidence was not corroborated. The appellants did not call any witness that was aware that the appellants’ father first cleared the land in dispute, no boundary neighbour was called to testify. The appellants alleged that the Respondent used to pay royalty to their late father, the Respondent in his evidence gave evidence to the effect that he used to give food stuff to the late father of the Appellants because he is his brother and to maintain a good relationship because their late father had stopped farming due to old age, the reason why the respondent stopped giving the food stuff to the appellants’ late father on his demise. The DW1 the appellants’ witness testified that the appellants’ father’s land shared a common boundary with the respondent but, did not testify that the land in dispute belongs to the appellants’ late father. The DW2 (1st appellant) who testified that their father owned the land in dispute named their boundary neighbours but did not call any of the named boundary neighbours to testify. These are: Titus Dinki, Bille Zane and Mallam Sam. The DW3, the 2nd Appellant who alleged that his late father asked the Respondent to lease the land in dispute to Hausa settlers did not call any of these settlers to testify or someone who was aware of the instruction. This piece of evidence was not corroborated. The DW2 testified that their late father was the first to have cleared the land in dispute with the PW1 (Anthony Dinki) in 1985 but, the PW1 in his evidence testified that the Respondent was the first to clear the land in dispute, in his presence the father of the appellants requested for a piece of land to farm on which he was given as earlier stated in this judgment.

I hold that the Appellants failed to establish their case on the preponderance of evidence and a balance of probabilities. As enunciated by the popular case of IDUDUN VS. OKUMAGBA (1976) NMLR 20 at 210 as laid down by the Supreme Court; there are five ways of proving title to land. These are:
1. Ownership of land may be proved by traditional means.
2. Ownership of land may be proved by production of documents.
3. Ownership of land may be proved by acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner.
4. Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel or quantity of land.
See also, ANYANWU VS. MBARA & ANOR (1992) LPELR – 516 (SC) P. 20, PARAS. B – F, SUNDAY PIARO VS. CHIEF WOPNU TENALO & ANOR (1976) 12 S.C. 31, P. 41; EKPO VS. ITA 11 NLR 68, P. 69 and AWODI & ANOR VS. AJAGBE (supra). Through the evidence led by the respondent’s witnesses, PW1 – PW4 the respondent adequately satisfied the Court that he was entitled to the reliefs sought by traditional means having first cleared the land, he proved that he had exercised acts of ownership over a long period of time, by farming on it undisturbed and leasing out to people portions of the land in dispute, having been in possession and owned portions of land adjacent to the land in dispute which the appellants’ witnesses also testified to. The respondent need not have established all five ways but, one is enough to have been entitled to the reliefs sought.

In sum, I hold that the appeal is without merit, same is dismissed. The judgment of the lower Court is hereby affirmed with N50,000.00 (Fifty Thousand Naira) costs to the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, in draft, the judgment just delivered by my learned brother Chidi NwaomaUwa JCA and agree with the reasoning and conclusions reached in dismissing the appeal.

I too dismiss the appeal for lacking in merit.
I abide by all other orders in the judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree

Appearances:

M. W. CHIKAKSON For Appellant(s)

S. J. GARBA For Respondent(s)