YAKUBU SHELNI v. USMAN BALA (2019)

YAKUBU SHELNI v. USMAN BALA

(2019)LCN/13707(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/J/298/2018

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

YAKUBU SHELNI Appellant(s)

AND

USMAN BALA Respondent(s)

RATIO

WAYS OF ESTABLISHING TITLE TO LAND

There are five ways of establishing title to land. See Idundun v Okumagba (1976)10 NSCC 445, Omoregie v Idugiemuanye (1985) 2 NWLR (Pt. 544) 41. One of them is by traditional history. In a declaration of title to land the plaintiff succeeds on the strength of his case and not on the weakness of the defence case. PER MSHEILA, J.C.A.

WHETHER OR NOT A PLAINTIFF MUST PROVE THE IDENTITY OF A DISPUTED LAND

In a claim for ownership of land, the plaintiff must prove the identity of a disputed land failing which his claim must collapse. The issue of identity of a disputed land must be ascertained with certainty. See Dike v Okoloedo (1999)10 NWLR (Pt.623) 359, 7 SCNJ 248, Ogun v Akinyelu (2005)8 WRN 41; (2004)18 NWLR (Pt.905) 362, Eleh v Anyadike (1999)5 NWLR (Pt.603) 454. PER MSHEILA, J.C.A.

The Respondent?s Brief settled by S. Ali, Esq., was dated 06/12/2018 but filed on 10/12/2018. When the appeal came up for hearing both counsel adopted their respective briefs of argument. Appellant?s counsel urged the Court to allow the appeal, while Respondent?s counsel urged the Court to dismiss the appeal.

In the Appellant?s Brief two issues were distilled for determination in this appeal. The issues are:
1. Whether the lower Court was right to have upheld the Judgment of the trial Court without taking into consideration the legal principles enunciated in the celebrated case of Kojo v Bonsie (1957)1 WLR p.123.
2. Whether the lower Court was right in entering Judgment in favour of the Respondent, in the face of uncertainty as to the identity of extent of the land in dispute.

On the part of the Respondent, no new issues were formulated rather the two issues formulated by Appellant were adopted by him.

?In determining this appeal, I will also adopt the two issues formulated by the Appellant. However, I wish to note that Appellant did not distill any issue from Ground 5. It is trite that failure to formulate an

issue from a ground of appeal renders such ground incompetent and liable to be struck out. Accordingly Ground 5 of the Notice of Appeal is hereby struck out.

ISSUE 1
In arguing issue one, learned counsel for the Appellant referred to the celebrated case of Kojo II v Bonsie (1957)1 WLR p.123 and the principle of law enunciated therein. Counsel also cited Matanmi v Dada (2013)2 SCNJ 816 at 832. Learned counsel submitted that at the trial Court both parties relied on traditional history to prove their respective case. That the traditional history in both side of the divide is based on hearsay. That witnesses on both sides narrated what they feel and were told is the right traditional history in respect of the land in dispute. According to counsel the testimonies of Appellant witnesses were not contradicted. That lower Court was not in a position to believe or disbelieve the testimonies of witnesses on both sides. Counsel submitted that going by the judicial authority in Matanmi v Dada (supra) relying on Kojo II v Bonsie, it is incumbent upon the lower Courts to look for further facts in recent times to see which of the traditional history is more

probable. Counsel further submitted that the record of the trial Court indicates that at all material time preceding the institution of the case at the trial Court, the Appellant was in physical possession and has been exercising all forms of ownership. That the testimonies of the witnesses of the respondent at the trial Court indicates that the appellant has been in physical possession of the disputed land and he has been exercising various acts of ownership. That these facts were not given any due consideration by the lower Courts, thereby occasioning miscarriage of justice. According to counsel the lower Court was wrong to have made the pronouncement in its Judgment appearing at page 74 lines 21-23 of the record.

Learned counsel further submitted that the lower Court failed to evaluate the evidence or testimony of the Appellant?s witnesses at the trial Court but based its Judgment on the testimonies of the Respondent?s witnesses alone without evaluating the testimonies of the witnesses of the Appellant. The position taken by the lower Courts is against the principles laid down in Kojo II v Bonsie (supra) which enjoined the testimonies of

both parties at the trial Court must be evaluated. Counsel referred to page 41 lines 19-21 of the record and page 75 lines 8-10 of the record and submitted that the lower Court fell into the same error made by the trial Court for failing to evaluate the testimonies of the witnesses for the appellant herein at the trial vis-a-vis that of the respondent before ascribing probative value to same. That if the lower Courts have done that they could have gone ahead to apply the principle as enunciated in Kojo II v Bonsie (supra) which provides that in proving traditional history act of ownership exercised within living memory is to be used as litmus test in the verification of traditional history. Counsel urged the Court to resolve the issue in favour of the Appellant.

In response learned counsel for the Respondent submitted that the Appellant?s brief of argument did not mention anything about the case of Kojo II v Bonsie (supra) as portrayed by appellant?s counsel in his argument before this Court. Counsel argued that though the case of Kojo II v Bonsie was not submitted before the lower Court, the decision of the lower Court was based on fairness

and the right principles of law. According to counsel, the case of Kojo II v Bonsie is not relevant to this appeal. Learned counsel submitted that the traditional evidence given by respondent was not contradicted but that of Appellant was contradicted. That Appellant was supposed to show the Court clearly where the respondent evidence was contradicted and whether such contradiction is fatal to the respondent case. Reliance placed on Gbadamosi v Dairo (2007)1 SCNJ 444 @ 458.

According to counsel one of the fundamental issues to consider in evidence of dispute to land is the credibility of witnesses and their competency to give evidence. That on a careful perusal of the record of proceeding of the lower Court particularly pages 6 to 14 of the record the respondent witnesses share boundaries with the land in dispute and they acknowledged the fact that respondent inherited the land from his parents. Reference was made to the testimony of PW1 who stated under cross-examination that they are neighbours to the land in dispute. Similarly, PW2 gave evidence in chief and under cross-examination that he share boundary with respondent on the land in dispute and also

described location of the land in dispute. That the testimonies of PW1 and PW2 were never contradicted. That testimony of PW3 was also not contradicted. It is trite law that evidence not contradicted by the other party who had opportunity to do so, it is always open to Court seized of the matter to act on such unchallenged evidence before it. Cited in aid Adejumo v Ayantegbe (1989) 3 NWLR (Pt.110) 417 at 435.

Learned counsel further submitted that miscarriage of justice as submitted by the appellant is not fatal to the decision of the trial Court. That it is trite law that it is not within the province of an appellate Court to interfere with the finding of facts of a trial Court which have the opportunity of hearing and watching the demanour of witnesses except where the trial Court failed properly to evaluate the evidence or make proper use of the opportunity of seeing or hearing the witness at the trial or where its finding are shown to be perverse. See Enenegor v State (2016) ALL FWLR (Pt. 511) page 884 at 934 paras B-D. He therefore urged the Court to resolve the issue in favour of the Respondent.
?
The Plaintiff sued the defendant at Upper Sharia

Court Wamdeo claiming farmland which he inherited from his father Galadima Ahmadu. According to him Galadima Ahmadu farmed it for a period of 32 years. The plaintiff also farmed it for 27 years and even built his house on the farmland for a period of 32 years. When he became old, he left the farm to Bala and Yerima Gajere who farmed the land together for 56 years. Later Yerima Gajere left the farmland to Bala. Ahmadu, who also used it with his brother. When they were farming the land nobody claimed the farmland as his farmland. It was after the death of his father Yakubu Shelni entered the land. Plaintiff described the farmland as 20 hectares and is north of Wamdeo Kurmo East of the farmland there is road to Mungun.
?
The defendant on the other hand denied the claim that it is not true. According to him the land is bush but his grandfather Ptil Ndura cleared the bush and farmed it till his death. After his death the land became that of his son Wagala. After Ndura his son Wagala brother to Shelni inherited it and Yakubu Defendant took over and was farming the land up to now. That from the time Ptil Ndura got the farmland is now over twenty Seven (27) years.

That Court should dismiss the claim and statement of counsel. Plaintiff in proof of his claim called three witnesses. While the defendant also called three witnesses.

The plaintiffs claim revealed that his claim was based on traditional history. There are five ways of establishing title to land. See Idundun v Okumagba (1976)10 NSCC 445, Omoregie v Idugiemuanye (1985) 2 NWLR (Pt. 544) 41. One of them is by traditional history.

In a declaration of title to land the plaintiff succeeds on the strength of his case and not on the weakness of the defence case.

After evaluating the evidence adduced by the three witnesses called by the plaintiff and the evidence of the three witnesses called by the defendant the trial Court made the following observation thus:
?Based on the witnesses of the plaintiff as he brought the three (3) of them (1) Lawan Buba (2) Haruna Gombi (3) Titus Fali they share area with the farmland in dispute their farmlands are at the place they were together to 32 years the said place is in possession he use to farm it all these years they use to see but the witnesses which the defendant brought that Sani Wagili (3) Waziri Ahmed

has testified that it was story they heard from their parents who hold them, they did not see these people working on it, is a hearsay but not that they saw it they did not see their parents farming the said farmland, only during the time of Lawan Nadaw Wamdeo father of the Defendant entered which the village head advised them that they should go and sue in the Court which they filed the matter before the court today is 11 years ago they are disputing when the Court went to see the farmland the defence witness Iliya Micharan was not present talkless of him to show the farmland to the Court also the defendant said he cannot show it because it was his younger brothers who knows the area which he said his younger brother is to show to the Court the farmland. Based on the statement of the plaintiff witnesses as presented before this court the three (3) of them, the Court has confirmed to the plaintiff Usman Bala Wamdeo his farmland

The lower Court (High Court) sitting in its appellate jurisdiction found as follows:
?We have carefully studied the evaluation of evidence by the lower Court and are of the considered conclusion that the

lower Court properly evaluated the evidence adduced before it. The findings and conclusions reached are fairly substantiated in the circumstances of the case ad there is no justifiable reason argued by the Appellant to warrant interference with the Judgment Gbadamosi v Dairo (2007)1 SCNJ 444 at 458, the Supreme Court said it is not every mistake in a Judgment or decision that can warrant, the reversal of the decision. To justify a reversal of a decision, the error complained of must be of such a nature as to cause real miscarriage of justice. The Appellant has not shown any miscarriage of justice in this case. On the whole the evasion of evidence by the lower Court is not perverse and cannot be interfered with by this Court.?

It is clear from the finding of the lower Court that it affirmed the Judgment of the trial Court. It is true both parties relied on traditional history. The Respondent?s witnesses particularly PW1, PW2 and PW3 gave cogent evidence that the Respondent inherited the land from his father. PW2 and PW3 in particular share boundary with the farmland in dispute. In the findings reproduced supra the trial Upper Sharia Judge gave

reason as to why he accepted the traditional history of the Respondent as more probable. The Appellant?s witnesses did not narrate cogent evidence as regards the traditional history. Contrary to the argument of learned counsel for the appellant there is no contradiction in the testimonies of Respondent?s witnesses. As rightly submitted by Respondent?s counsel the contradiction as to the length of time respondent was on the land is of no moment. There was no need to resolve the traditional history by looking for further facts in recent times to see which of the traditional history is more, probable as enunciated in the celebrated case of Kojo II V Bonsie (supra). As earlier stated the evidence adduced by respondent?s witnesses in support of the traditional history is more probable. It is not correct as argued by Appellant?s counsel that the trial Upper Sharia Judge only relied on the evidence adduced by respondent?s witness in arriving at the conclusion that respondent had proved his ownership of the farmland in dispute. It is clear that trial Upper Sharia Judge also evaluated the evidence of witnesses for the Appellant

before granting ownership of the farmland to the Respondent. The Respondent?s witnesses testified as to the fact that Appellant encroached on farmland in dispute before respondent filed the suit at the trial Court. Furthermore, the argument of Appellant?s counsel that the trial Court failed to evaluate the testimonies of Appellants? witnesses cannot hold water. The trial Court evaluated the evidence of both respondent?s witnesses and the Appellant?s witnesses. On the whole, the lower Court was right to hold that the evaluation of evidence by the trial Court is not perverse and cannot be interfered with. I will accordingly resolve issue 1 in favour of the Respondent.

ISSUE 2
As regards issue 2, learned counsel submitted that both during the trial and the visit of the trial Court to the locus inquo, the Respondent?s witnesses could not ascertain or identify the extent or clear identity of the land in dispute. According to counsel even the witness at the locus inquo claimed they are old men as such cannot see clearly. Counsel contended that the argument in respect of the extent of the land in dispute is not a technical

issue; it goes to the substance of the case, as a Court cannot make an award greater than what is claimed. That such would amount to a miscarriage of justice. According to counsel the observation made by the lower Court at pages 73 lines 25-28 of the record, the lower Court having observed the abnormality was in error to have confirmed the entire land in dispute to the respondent. That respondent gets away with more than he asked for. He urged the Court to resolve the issue in favour of the Appellant.

In response, learned counsel for the respondent first referred the Court to page 5 lines 5-9 of the record of the trial Court where the respondent stated his claim with regard to size of the land and further referred to the statement of witnesses who confirmed sharing boundaries with the Plaintiff/Respondent and were not contradicted by Appellant counsel. Counsel submitted that comparing the sketch plotted on the record of proceeding and the description or the physical features of the land and the evidence of witnesses is accurate and such did not contradict the claim of the respondent. That even if the Defendant had shown a different land such will not suffice

because all that is needed is the claim of the respondent. It is trite law that where parties to a land in dispute know the boundaries of the land and mistakenly admitted in their pleading there is no need to make any findings of fact on the boundaries of the land. Reliance placed on Motanya v Elinwa (1994)7 NWLR (Pt. 356) 252. Counsel contended that submission of Appellant in his Brief on the accurate description of the size mathematically cannot be an issue particularly in customary land so long as the neigbour sharing the boundaries with the Respondent testified to that effect and the features of the land in dispute tally with evidence of witnesses. That such evidence is sufficient to grant the claim of the Respondent. See Motanya v Elinwa (supra). Counsel urged the Court to resolve the issue in favour of the respondent and dismiss the appeal, with substantial costs.

The complaint of the Appellant under issue 2 is that the identity of the land in dispute was not properly ascertained by the Respondent?s witnesses.?
In a claim for ownership of land, the plaintiff must prove the identity of a disputed land failing which his claim must collapse.

The issue of identity of a disputed land must be ascertained with certainty. See Dike v Okoloedo (1999)10 NWLR (Pt.623) 359, 7 SCNJ 248, Ogun v Akinyelu (2005)8 WRN 41; (2004)18 NWLR (Pt.905) 362, Eleh v Anyadike (1999)5 NWLR (Pt.603) 454.
In the instant case, the identity of the disputed land was properly ascertained with certainty. From the claim of the respondent and the reply by the Appellant before the trial Court the identity of the land claimed was not in dispute. The only area of disagreement relates to the size of the land, wherein Appellant claimed a larger portion of the land than the extent Respondent showed to the Court while on visit to locus inquo. The record also reveals that neigbours of the land in dispute complained instantaneously that the showing of the boundaries of the land in dispute by the Appellant encroached upon their land. There is no dispute as to the fact that parties know the identity of the disputed land. The trial Court rightly gave Judgment to the Plaintiff/Respondent the land he claimed and proved. The failure to prove the claim of 20 hectares with mathematical accuracy as postulated by the Appellant is not fatal to the

claim. It is not correct that Court gave the respondent more than what was claimed to make the trial Court a Father Christmas.

The lower Court agreed with the findings of the trial Court on this issue. This finding cannot be faulted in view of the evidence adduced before the trial Upper Sharia Court.
Right now there are two concurrent findings of the trial Court and lower Court in favour of the Plaintiff/Respondent in his claim for declaration of title. It is trite law that the Court of Appeal will not ordinarily disturb concurrent findings of fact made by the trial Court and the High Court unless a substantial error apparent on the face of the record of proceedings is shown or when such findings are perverse. See Akeredolu v Akinremi (1989) 5 SC 102, (1989) 3 NWLR (Pt.108) 164, Ibodo v Enarofia (1980) 5-7 Sc 42, Ige v Olunloyo (2002) FWLR (Pt.98) 863; (1993)7 SCNJ 183, Durosaro v Ayorinde (2005) 20 WRN 181 (2005) 8 NWLR (Pt.927) 407.?
The trial Upper Sharia Court Judge on the overall evidence before him preferred the traditional evidence of the respondent as more probable, to that of the Appellant. I must restate here that evaluation of evidence

and ascription of probative value is primarily the function of the trial Judge. An Appellate Court can only interfere where and when he fails to do so properly. When the trial Court has satisfactorily performed its primary function of evaluating the evidence and ascribing probative value to it, an appellate Court has no business interfering with its findings on such evidence. See Atolagbe v Shorun (1985) 1 NWLR (Pt.2) 360, Obodo v Ogba (1987)2 NWLR (Pt.54)1.
The High Court sitting in its Appellate jurisdiction affirmed the Judgment of the trial Upper Sharia Court Wamdeo given in favour of the Plaintiff/Respondent. This Court cannot find any reason to justify any interference with the two concurrent decisions of the trial court and the High Court.

In the result, I hold that this appeal fails and same is dismissed. I hereby affirm the Judgment of the High Court Borno State delivered on 10/12/2014 in Suit No. BOHC/MG/CVA/2/2014 also affirming the Judgment of the Upper Sharia Court Wamdeo delivered on 07/05/2014. Parties to bear their respective costs.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I was obliged in draft the lead

judgment of my learned brother, ADZIRA GANA MSHELIA, PJCA, just delivered which I read before now.
I agree that this Appeal ought to fail and dismissed and hence, I also dismiss the Appeal.
I abide by the consequential orders therein contained.

BOLOUKUROMO MOSES UGO, J.C.A.: I was privileged to read the leading judgment of my learned brother ADZIRA GANA MISCHELIA JCA., (PJ) and I am in agreement with his reasoning and conclusion, I also dismiss the appeal and affirm the judgment of the Upper Sharia Court, Wamdeo
Parties shall bear their Costs.

Appearances:

J. I. Onyilo, Esq.For Appellant(s)

T. A. Lenkat holding the brief of S. Ali, Esq.For Respondent(s)

Appearances

J. I. Onyilo, Esq.For Appellant

AND

T. A. Lenkat holding the brief of S. Ali, Esq.For Respondent