ZAYI & ORS v. GIDA & ANOR (2022)

ZAYI & ORS v. GIDA & ANOR

(2022)LCN/16663(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, August 18, 2022

CA/A/608/2018

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

1. CHAWO SARKI ZAYI 2. AREWA MACHI 3. JABA INUWA DAGAI APPELANT(S)

And

1. MADAMI SARKI SABON GIDA 2. JAGABA SARKIN SABON GIDA (For Themselves and On Behalf of SARKIN SABON GIDA Family of Wonu Village) RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is settled law that, in an action for declaration of title to land, the burden is always on the Plaintiff who seeks the declaration. To do that, the Plaintiff must adduce sufficient credible evidence which must satisfy the Court as to grant the relief. In doing that, the Plaintiff must rely on the strength of the evidence adduced by him and therefore cannot rely on the weakness of the defence, not even on admission by the defendant. It therefore means that, declaration of title cannot be granted in the absence of evidence adduced by the Plaintiff. However, there are circumstances where the Plaintiff may rely on the weakness or aspects of the defence in order to strengthen his claim. See Onwugbufor & Ors. v. Okoye (1996)1 NWLR (Pt. 424) 252; Ajiboye v. Ishola (2006) LPELR-301 (SC) and Kada v. Woya Galadima & Ors. (2018) 3 NWLR (Pt. 1607) 436.

In such a claim, where the Plaintiff has led evidence, the duty of the Court is to evaluate the evidence so adduced and ascribe probative value to same. If upon evaluation of the evidence the trial Court finds that the evidence adduced has not made out a prima facie case which supports the claim, the Plaintiff’s case will be dismissed. However, if such evidence establishes a prima facie case, the Defendant will be required to adduce evidence in rebuttal. If the Defendant adduces evidence, the Court will then place the evidence adduced by the defence on the other side of an imaginary scale of justice. If the balance or the scale of justice tilts in favour of the Plaintiff, his claim will succeed but if it preponderates in favour of the defence, the Plaintiff’s claim will be dismissed. Judgment will however not be in favour of the Defendant unless he has Counter-Claimed and the evidence adduced successfully proves his Counter-Claim. See Awofoloju v. Adedoyin (1992) 8 NWLR (Pt. 260) 492; Adone & 2 Ors. v. Ikebudu & 5 Ors. (2001) 14 NWLR (Pt.733) 385 and Buba v. Bukar (2003) FWLR (Pt. 183) 71. See also, N.B.C. Plc. v. Edward (2015) 2 NWLR (Pt. 1443) 236 and Lagga v. Sarhuna (2008) 16 NWLR (Pt.1114) 427 at 460 Paras. F-G. PER TSAMMANI, J.C.A.

THE FIRST DUTY OF A PLAINTIFF OR CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND

Now, the first duty of a Plaintiff or Claimant in an action for declaration of title to land and/or trespass or injunction is to identify accurately the location and extent of the land which he claims. In other words, the first duty of a Plaintiff in such circumstances is to lead credible evidence that will establish accurately the identity of the land in dispute. Therefore, even where the Plaintiff has traced his genealogy accurately but such genealogy is not linked or tied to a definite parcel of land, which is the source of his claim, there will be no parcel of land upon which the declaration can be tied to, as the declaration cannot be made in vacuum. In the absence of proof of identity of the land to which the declaration can be related, the declaration cannot be made. See Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt. 964) 337; Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362; Otanma v. Youdubagha (2006) LPELR-2821 (SC); Momoh & Ors. v. Umoru & Ors. (2011) LPELR-8130 (SC) and Nwokorobia v. Nwogu & Ors. (2009) LPELR-2127 (SC). Thus in Okedare v. Adebara & Ors. (1994) LPELR-2432 (SC) the Supreme Court per Adio, JSC said:
“A Plaintiff in a claim for declaration of title or statutory right of occupancy must prove ascertainable boundaries, since the Plaintiff’s first duty is to prove, with certainty, the area over which he claims. A Plaintiff is required to establish with certainty and precession the area of land to which his claim relates. If he fails to prove the boundaries or the identity of the land in dispute, the claim will be dismissed …” PER TSAMMANI, J.C.A.

THE LIBERTY OF A PLAINTIFF TO ADDUCE EVIDENCE AS TO THE IDENTITY OF A PARCEL OF LAND

The law gives liberty to a Plaintiff to adduce evidence as to the identity of the parcel of land by one or two ways. The Plaintiff may adduce oral evidence which will establish the location, boundaries and physical features on the land. Such description must be such that, a surveyor armed with the description may draw an accurate plan of the land. The Plaintiff may draw and tender a survey plan of the land. Such survey plan must show clearly, the dimensions of the land, the boundaries and other salient features thereon. See Nwoke & Ors. v. Okere & Ors. (1994) LPELR-2122 (SC); Olufosoye & Ors. v. Olorunfemi (1989) LPELR-2615 (SC); Dada v. Dosunmu (2006) LPELR-909 (SC) and Oke & Ors. v. Eke & Ors. (1982) 12 SC. 218. Thus, in Okonkwo & Ors. v. Okonkwo & Ors. (2010) 14 NWLR (Pt. 1213) 228, the Supreme Court per Adekeye, JSC held that:
“…, in discharging the burden of identity of the land in a claim for declaration of title to land, the claimant must prove the identity of the land and boundaries of the land in dispute. The burden can be discharged by oral description of the land or by survey plan showing clearly the area to which the claim relates”.
In line with the above cited decision, I held in the case of Babatola v. Adewumi (2011) LPELR – 3945 (CA) as follows:
“The Plaintiff can succeed in proving the identity of the land by adducing evidence which is such that it ascertains the land in dispute without any doubt whatsoever. Such evidence must be of such quality that the description of the land in dispute is so clear it leaves neither the Court nor the defendant in any doubt as to the specific area claimed, in the sense that, from the description given by the Plaintiff, a Surveyor can produce a plan showing accurately the land in dispute …A better way of proving the identity and extent of the land claimed is for the Plaintiff to file or tender a survey plan showing or reflecting clearly the boundaries, location or extent of the land he claims. The Plan must show clearly the dimensions of the land, the location of the land, the boundaries of the land and other salient or clear features appertaining the land in dispute … ”PER TSAMMANI, J.C.A.

FACTOR TO BE CONSIDERED BEFORE A COURT CAN TRY A CASE ON DECLARATION OF TITLE TO LAND

Now, it is the settled law that, before a Court trying a case on declaration of title to land, trespass and injunction, can go into the facts of the case, it must first of all, satisfy itself that the identity of the land in dispute has been proved with certainty. Where the identity of the land has not been established with certainty, the proper order is to dismiss the case. See Okonkwo v. Okonkwo (supra); Aiyeola v. Pedro (2014) LPELR -22915 (SC) and Ukaegbu & Ors. v. Nwololo (2009) LPELR-3337 (SC). Thus in Yesufu Ogedengbe & Ors. v. Chief J.B. Bologun & Ors. (2007) LPELR-2297 (SC), the Supreme Court held that:
“It is firmly settled that, where a Plaintiff in an action for declaration of title, fails to prove the boundaries of the land he is claiming, he has failed by that omission, to prove his case and the proper order which the Court should make in such circumstance, is usually one of dismissal of the claim… “PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Niger State High Court of Justice delivered by Aisha A.L.B. Bwari, J on the 9th day of March, 2018 in Suit No. NSHC/MN/134/2013.

By an Amended Statement of claim which was filed on 10/6/2015, the Respondents who were the Plaintiffs sought the following reliefs:
1. An order of Court declaring the Plaintiffs as the rightful owners of the land in dispute stretching from Laitapi to Wonu Village which is briefly described in paragraphs 2 and 3 hereto.
2. A perpetual injunction restraining the Defendants, their privies and assigns from acts of trespass.
3. N500,000.00 general damages.
4. Cost of litigation.

The 1st and 3rd Appellants who were 1st and 3rd Defendants responded by filing of Joint Statement of Defence and Counter-Claim. The 2nd Defendant/Appellant did not file any defence. However, the Plaintiffs/Respondents filed a Joint Reply to the 1st & 3rd Defendants/Appellants’ Statement of Defence and Counter-Claim.

The matter then went to Pre-Trial Conference, and after the Pre-Trial, the matter proceeded to hearing. The Plaintiffs/Respondents called three (3) witnesses while the 1st and 3rd Defendants/Appellants called five (5) witnesses. At the close of evidence, counsel filed and exchanged Written Addresses and in a considered judgment delivered on 09/3/2018, the learned trial Judge gave judgment for the Plaintiffs/Respondents and dismissed the 1st and 3rd Defendants’ /Appellants’ Counter-Claim. Aggrieved by the decision, the Appellants have filed this appeal.

The Notice of Appeal consisting of four (4) Grounds of Appeal was filed on 22/5/2018. The Appellants’ Brief of Arguments was filed on 27/7/2018 but deemed filed on 25/11/2020. Two issues were raised therein for determination as follows:
1. Whether, with the ostensible failure of the Respondents to establish with certainty the identity, boundaries, loaning of the land in dispute to the 1st Appellant and trespass to the same by the 2nd Appellant, an order of declaration of title made in favour of the Respondents can be sustained. (Grounds 1, 2 and 3).
2. Whether on the balance/preponderance of probabilities, the Appellants are entitled to an order of declaration of title. (Ground 4).

The Respondents’ Brief of Arguments was filed on 25/11/2020 and deemed filed on the same day. The Respondents formulated only one (1) issue for determination as follows:
“Having regard to the evidence adduced by the Respondents on the one hand, and the 1st and 3rd Appellants on the other hand, in proof of their claim and counter-claim respectively, whether the trial Court was not right in its decision that the Respondents proved their claim and that the Appellants had failed to prove their counter-claim”.

Having reflected on the issues so formulated by the parties, I am of the view that, the two (2) issues raised by the Appellants can be adequately embraced in the single issue formulated by the Respondents. This appeal shall, therefore, be determined on the sole issue raised by the Respondents.

In arguing this appeal, learned counsel for the Appellants began by restating the five (5) ways of proving title to land in Nigeria. In doing so, the case of Nruamah v. Ebuzoeme (2013) 1 SCNJ 128 at 144 was cited in support. That in the instant case, the Plaintiffs/Respondents sought to prove title to the land in dispute through traditional history.

Learned counsel for the Appellants then submitted that, the first duty of a Claimant in an action for declaration of title to land, is to establish the identity of the land in dispute. The case of Ayanwale v. Odusami (2011) 12 SCNJ 362 at 371 was cited in support. That, the Respondents had pleaded in paragraph 2 of the Amended Statement of Claim that, they are the owners of a large piece of land stretching from Laitapi to Wonu Village, by inheritance. That all three (3) witnesses called by the Respondents had testified that the land in dispute stretches from Laitapi to Woni Village; and that, none of the witnesses testified that the land is also known as Wonu- Samana.

Learned counsel for the Appellants went on to submit that, the Appellants had contested the identity of the land claimed by the Plaintiffs/Respondents as pleaded in paragraphs 1 and 15 of the Joint Statement of Defence and 3 of the Joint Counter-Claim as well as the testimony of the five (5) witnesses called by the Appellants. The case of Nwokidu v. Okanu (2010) 1 SCNJ 167 at 191 was then cited to submit that, it is not sufficient to mention the name of the land in dispute but there must be an accurate description of the land or a survey plan tendered. Furthermore, that the Respondents failed to establish the identity of the land they claim aside from the bare assertion that the land in dispute stretches from Laitapi to Wonu Village without any Survey Plan tendered to show the extent and dimension of the land claimed. That, it is germane that the Respondents who claimed declaration of title and an injunction, to prove clearly the area of land to which his claim relates.

Learned counsel for the Appellants gave a rundown of the testimony of the Respondents’ three (3) witnesses relating to the description of the land in dispute, to submit that the Respondents failed to accurately establish the identity of the land in dispute. That, the Respondents having failed the basic step of proving the identity of the land in dispute, the proper order the Court ought to have made is that of dismissal of the Respondents’ claim.

On proof of the traditional history pleaded by the Plaintiffs/Respondents, learned counsel for the Appellants contended that, a party who relies on traditional history must specifically plead and prove the following facts:
(a) the person(s) who founded the land;
(b) in what manner the land was founded; and
(c) the names and particulars of successive owners through whom he claims.

The case of Nruamah v. Ebuzoeme (supra) at 146 was cited in support. That, the Respondents had merely pleaded in paragraphs 4 and 5 of the Amended Statement of Claim, that they inherited the land in dispute from their father called Umaru Galadima Sarkin Sabo who also inherited the same from his own father named Galadima Sabon Gida who first farmed on the land. That, the Respondents did not plead how the land devolved to them nor did they plead that they ever, by themselves farmed on the land in dispute. In other words, that the Respondents did not plead nor lead evidence to show that they have ever been in possession of the land in dispute. Learned counsel for the Appellants cited the case of Tukuru v. Sabi (2013) 3 SCNJ 212 at 232 to submit that, to prove trespass, the Plaintiff must prove that he is in exclusive possession of the land.

Still on the issue of proof of title, learned Counsel for the Appellants submitted that, the Respondents had pleaded in paragraph 8 of the Amended Statement of claim and also led evidence to the effect that, their father, Zarumai Sarkin Sabon Gida, loaned a part of the land in dispute to the grandfather of the 1st Appellant (Sarki Zayi) as evidenced by Exhibits A and “B” respectively. That, the only witness to the loaning of the land to the 1st Appellant’s father was PW3 and through whom the Written Agreement was tendered. That, the other witness who is the 2nd Respondent had told the Court under cross-examination that, he was not present when the loan Agreement was made but that his father (now deceased) gave him the Agreement.

On the issue of trespass, learned counsel for the Appellants contended that, the Respondents had pleaded and led evidence to the effect that, the 2nd Appellant who shares boundary with them, trespassed on the Eastern side. However, that PW1 testified that the 2nd Appellant trespassed at the centre while PW2 testified that the 3rd Defendant/Appellant trespassed at the Western side. That PW3 on the other hand, testified that the 2nd Appellant trespassed from the Southern Part. That, despite the failure of the Respondents to establish the act of trespass, the learned trial Judge went ahead to grant the order of perpetual injunction against the Appellants.

On the Appellants’ Counter-Claim, learned counsel for the Appellants contended that, being a cross-action, the Appellants were in the same position as the Respondents to prove their claims on the strength of their case and not on the weakness of the defence. The case of Orianwo v. Okene (2002) FWLR (Pt. 114) 427 at 451 was cited in support. That in the instant case, the Appellants had proved their Counter-Claim on the strength of their own case. That, the Appellants had established with certainty, the identity of the land in dispute as required by law. It was then submitted that, the Appellants have proved that the land in dispute is situate at Wonu Village. In other words, that the Appellants have established before the Court the identity of the land they claim with accuracy. In so submitting, learned counsel referred to the evidence of DW1, DW2, DW3, DW4, DW5. Furthermore, that the 1st and 3rd Appellants called two witnesses who are boundary men in support of their claim.

Learned counsel for the Appellants went on to submit that, the Appellants also relied on traditional history and acts of long possession and enjoyment of the land such as farming as stated in the cases of Nruamah v. Ebuzoeme (supra) and Ayanwale v. Odusami (supra). That, the 1st Appellant had pleaded in paragraphs 3—6 of the Joint Statement of Defence that his grandfather named Darato Samana founded and cultivated the land in dispute; and also lived on the land until his demise and was also buried on the land. That, his son, Sasai Darato (1st Appellant’s grandfather) inherited him, and also lived, farmed and died on the land like his father, and that he was also buried on the land. That, his son Maiangwan Sasai (1st Appellant’s father) then inherited the land, and also farmed, lived and was buried on the land. That his son (1st Appellant) then inherited him and also lives and farms on the land. That, those pleaded facts were neither impeached nor controverted by the Respondents.

That for the 3rd Appellant, it was pleaded that his father, named Sarmai Samana first founded and farmed on the land until his demise whereupon, his son (Chiroma Samana) succeeded him. That Chiroma Samana also lived and farmed on the land until his death. That, Chiroma Samana was then succeeded by the 3rd Appellant who now lives and farms on the land in dispute. That though the learned trial Judge held that the 1st Appellant mixed up the names of some of his progenitors while the 3rd Appellant said he could not remember the names of Sarmai Samana’s father, it should be remembered that, the 2nd Appellant was about 80 years old when he testified. That, those irregularities can only best be regarded as discrepancies and not contradictions. That in law, contradictions, occur where a piece of evidence affirms the opposite of what the other piece of evidence has stated. The case of Okonkwo v. Okonkwo (2003) 51 WRN 112 at 146 was cited in support.

Learned counsel for the Appellants then submitted that, the Appellants proved the root of their titles to the parcels of land in dispute by unbroken chain of evidence. That the Appellants led evidence on who founded the land, the names of the intervening owners and how the parcels of land devolved to them; and that they have been in continued possession of same till date. The case of Aminu v. Hassan (2014) 1 SCNJ 163 at 184 and Section 143 of the Evidence Act was then cited to submit that, in law, possession of land gives presumption of ownership in favour of the occupant. That, the Respondents having failed to rebut that presumption of ownership in favour of the Appellants by law, has strengthened the case of the Appellants. That the evidence on record shows clearly that they have been in possession of the land in dispute and which evidence has been supported by the testimony of the three witnesses that testified for the Respondents.

On the issue of trespass, it was submitted that, the Appellants are entitled to damages for trespass on the parcels of land in dispute against the Respondents. On that note, were urged to allow the appeal, set aside the decision of the trial Court and enter judgment for the Appellants on their Counter-Claim.

In response, learned Senior Counsel for the Respondents contended that, the issue of proof or lack of it, in this case, is centered on:
(a) the identity of the land in dispute.
(b) the evidential value of Exhibit “A” and the effect thereof.
(c) the weight of evidence.
(d) the grant of Perpetual Injunction against the Appellants in the absence of proof that they were trespassers.

Senior Counsel submitted that, for identity of land in dispute to be in issue, the parties must have joined issues on it in their pleadings. The cases of Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362 at 385 Paras. A-E and Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53 at 85 Paras. D-G were cited in support, and to further submit that, in the instant case, the parties did not join issues on the identity of the land. That, the 2nd Appellant did not file pleadings, and therefore, there is no question of his disputing the identity of the land. That though the 1st and 3rd Appellants would appear to have denied the description of the land in paragraphs 2 and 14 of the Amended Statement of Claim, the denial was betrayed by paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 wherein the Appellants referred to the land as “the disputed land”. Furthermore, that the Appellants pleaded in paragraphs 11, 12 and 13 of the Amended Statement of Claim, that the dispute was taken before the District Head (Hakimi) who caused a visit to the land in dispute where a Surveyor who was engaged to Survey the land by the Respondents was met on the land. Similarly, that in paragraph 15 of the Amended Statement of Defence, the 3rd Appellant averred that his grandfather “was the first to cultivate the disputed land”. On that note, it was submitted that, there is no dispute as to the land in dispute.

On the evidential value of Exhibit “A” and the weight of evidence, learned Senior Counsel for the Respondents contended that, Exhibit “A” is the Written Agreement made between the Respondents’ father and the 1st Appellant’s grandfather who is said to have loaned part of his farmland to the 1st Appellant’s grandfather. Exhibit “B” is the English translation of Exhibit “A” (Written in Hausa Language). That PW3 confirmed that himself and one Gadumaboni were present when Sarki Zayi (1st Appellant’s Father) came to request for the loan of the land but that he was not present when Exhibit “A” was made nor did he thumbprint same. It was however contended that, apart from the general denial in paragraph 2 of the Amended Statement of Claim, the 1st and 3rd Appellants did not make any specific averment denying the making of any Written Agreement nor did they call any evidence to controvert same.

Learned Senior Counsel for the Respondents referred to the finding of the learned trial Judge at page 234 line 17-235 line 5 of the record of appeal, to also submit that, though exhibit “A” was tendered without objection from the Appellants, it was rendered to be of no evidential value by the trial Court but that the Respondents have not appealed against that finding. However, that, the complaint of the Appellants is that, despite discountenancing the said Exhibit “A”, the trial Court still found that, the Respondents had, on the preponderance of evidence, proved title.

Learned Senior Counsel for the Respondents went on to submit that, from the pleadings, both parties relied on traditional history in proving their titles to the land in dispute. That, the Respondents who were Claimants in the Court below, had pleaded that, it was their grandfather, one Galadima Sabon Gida who first founded and cultivated the land. That the said Galadima Sabon Gida was a Prince from Samana Village. That, after his death, he was succeeded by his son Umaru Galadima Sabon Gida. That after his demise, he was succeeded by the Respondents’ father, from whom the Respondents inherited the land. That, the 1st Appellant’s grandfather came from another village called Gussoro to settle in a village called Pyatta. That when he could not get land to cultivate, it was the Respondents’ father who loaned him a piece of land on condition that he gave his daughter to the Respondents’ uncle in marriage. That, the 3rd Appellant shares a common boundary with Respondent’s farmland but he crossed the boundary and trespassed into the Respondents’ parcel of land.

Learned Senior Counsel for the Respondents made a concise reference to the evidence of PW1, PW2 and PW3 to submit that, from the pleadings and evidence of the Respondents they were able to establish the following facts:
(a) the founding of the farmland by their grandfather who first cultivated same;
(b) that the 1st Appellant’s father was loaned a portion of the land by the Respondent’s father;
(c) that the Respondent’s father also loaned another portion to the 2nd Appellant’s father;
(d) that both the 1st and 2nd Appellants’ families lived on and cultivated their respective portions of land loaned to them; and
(e) that the 3rd Appellant, a boundary man, exceeded the boundary and trespassed onto another part of the Respondents’ land.

It was then contended that, none of the above stated facts was impeached under cross-examination.

Learned Senior Counsel referred to the defence of the 1st Appellant and Counter-Claim to submit that, the case of the 1st Appellant is built on the fact that:
(a) his own portion of farmland was founded by his great grandfather as the person who first cultivated same;
(b) the farmland was inherited by the 1st Appellant’s grandfather, then by his father, all of whom lived on and cultivated same, died and were buried on the land;
(c) that the 1st Appellant had reported to the District Head of Kuta that the Respondents had trespassed onto the land in dispute, and after investigation by one of the title holders, it was reported to the District Head that the land belong to the 1st Appellant.
(d) the District Head summoned the Respondent who conceded to the ownership of the land by the 1st Appellant, and the District Head directed that the farmland be shared among the three (3) Appellants.
(e) the title holders went to the land to carry out the directive of the District Head but met a man on the land surveying same at the instance of the Respondents who thereafter commenced this suit.

Learned Counsel for the Respondents then referred to the evidence of defence witnesses; and proceeded to submit that, the DW1 did not say anything about the alleged founding of the land by the 1st Appellant’s great grandfather and the consequent inheritance of same by the 1st Appellant. Furthermore, that the testimony of DW1 that when he visited the land in company of five title holders as directed by the District Head of Kuta where it was confirmed that the land belongs to the 1st Appellant contradicts the averments in paragraphs 11 and 12 of the Statement of Defence.

On the testimony of DW2, Learned Senior Counsel for the Respondents contended that, DW1 apart from adopting his Written Statement on oath also stated that his farm shares common boundary with the 1st Appellant, and that the 1st Appellant inherited the land in dispute. However, that the names mentioned by DW2 contradict the names averred by the Appellants in paragraphs 2, 3, 5 and 6 of the Joint Statement of Defence. Furthermore, that, DW2 admitted that he does not know how the 1st Appellant’s forefathers got the land. That, DW3 who stated that he shares boundary with the land in dispute, contradicted the names of the 1st Appellant’s forefathers as averred in paragraphs 3, 4, 5 and 6 of the Statement of Defence. That apart from being a boundaryman to the 3rd Appellant, DW3 could not tell the Court how the 3rd Appellant got the land.

Learned Senior Counsel for the Appellants went on to submit that, the 1st Appellant who testified as the DW5 apart from adopting his Written Statement on Oath, stated under cross-examination that, his father is Maianguwa whose father is Sarkin Zayi the son of Dalato Samana. That though the name of his grandfather is pleaded as Sasai Darato and not Sarkin Zayi, such contradiction was not cleared by way of re-examination.

In respect of the 3rd Appellant’s Counter-Claim, Learned Senior Counsel for the Respondents submitted that, DW3 testified on behalf of the 3rd Appellant to the effect that, he knows that the parcel of land claimed by the 3rd Appellant belongs to the 3rd Appellant who had inherited the land from his progenitors and has been in possession of same to date. That, he is a boundaryman to the 3rd Appellant whose land borders his own to the North. That, he (DW3) does not know how the 3rd Appellant’s ancestors got the land. That the 3rd Appellant testified for himself as DW4; and stated in paragraphs 2-7 of his statement on Oath that his grandfather, Sarmai Samana first founded and cultivated the parcel of land. However, that the 3rd Appellant (DW4) contradicted himself when he averred in the pleadings and statement on oath that his grandfather was the first person to cultivate the land but under cross-examination stated that, his grandfather inherited the land from his own father, i.e the 3rd Appellant’s great grandfather who founded the land.

Learned Senior Counsel for the Respondents went on to submit that, though it is conceded that the learned trial Judge discountenanced Exhibit “A”, it considered other evidence in the case and came to the conclusion that the Respondents’ father loaned the land to the 1st Appellant’s grandfather. Referring to the findings of the trial Court at pages 233 lines 4-9, 234 lines 3-235 line 10 of the record of appeal, learned counsel submitted that those findings of the trial Court were not challenged. That, the findings of the learned trial Judge at pages 237 line 14-239 line 15 and 239 line 16-240 line 14 were not challenged and therefore remain extant. The cases of Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179 at 225-226 Paras. D-B and SAP Ltd. v. Minister of Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391 at 406 were then cited in support.

On the issue of grant of Perpetual Injunction, learned Senior Counsel for the Respondents contended that, the claim relate to trespass against the 2nd Appellant who was the 2nd Defendant in the Court below. That the learned trial Judge dealt with the claim against the 2nd Appellant in issue 1 formulated in the judgment. That after a detailed evaluation of the evidence adduced, the trial Court found at pages 277 line 9-228 line 16 of the record of appeal, that the claim against the 2nd Appellant was proved. That, contrary to the Appellants’ assertion, the Court did not find that the Respondents’ claim of trespass against the 2nd Appellant was not proved. That indeed, the Respondents did not make acclaim of trespass against the 2nd Appellant. That the Respondents’ claim against the 2nd Appellant is contained in paragraphs 9 and 13 of the Amended Statement of Claim. On that note, we were urged to resolve the issues against the Appellants and to dismiss the appeal.

Now, it is apparent from the reliefs claimed in paragraph 16 of the Amended Statement of claimed that, the main claim of the Plaintiffs/Respondents was for a declaration of title to a certain expanse of land, stretching from Laitapi to Wonu Village. The claims of perpetual injunction and general damages are subsidiary or incidental to the success of the declaratory relief sought.

It is settled law that, in an action for declaration of title to land, the burden is always on the Plaintiff who seeks the declaration. To do that, the Plaintiff must adduce sufficient credible evidence which must satisfy the Court as to grant the relief. In doing that, the Plaintiff must rely on the strength of the evidence adduced by him and therefore cannot rely on the weakness of the defence, not even on admission by the defendant. It therefore means that, declaration of title cannot be granted in the absence of evidence adduced by the Plaintiff. However, there are circumstances where the Plaintiff may rely on the weakness or aspects of the defence in order to strengthen his claim. See Onwugbufor & Ors. v. Okoye (1996)1 NWLR (Pt. 424) 252; Ajiboye v. Ishola (2006) LPELR-301 (SC) and Kada v. Woya Galadima & Ors. (2018) 3 NWLR (Pt. 1607) 436.

In such a claim, where the Plaintiff has led evidence, the duty of the Court is to evaluate the evidence so adduced and ascribe probative value to same. If upon evaluation of the evidence the trial Court finds that the evidence adduced has not made out a prima facie case which supports the claim, the Plaintiff’s case will be dismissed. However, if such evidence establishes a prima facie case, the Defendant will be required to adduce evidence in rebuttal. If the Defendant adduces evidence, the Court will then place the evidence adduced by the defence on the other side of an imaginary scale of justice. If the balance or the scale of justice tilts in favour of the Plaintiff, his claim will succeed but if it preponderates in favour of the defence, the Plaintiff’s claim will be dismissed. Judgment will however not be in favour of the Defendant unless he has Counter-Claimed and the evidence adduced successfully proves his Counter-Claim. See Awofoloju v. Adedoyin (1992) 8 NWLR (Pt. 260) 492; Adone & 2 Ors. v. Ikebudu & 5 Ors. (2001) 14 NWLR (Pt.733) 385 and Buba v. Bukar (2003) FWLR (Pt. 183) 71. See also, N.B.C. Plc. v. Edward (2015) 2 NWLR (Pt. 1443) 236 and Lagga v. Sarhuna (2008) 16 NWLR (Pt.1114) 427 at 460 Paras. F-G.

Now, the first duty of a Plaintiff or Claimant in an action for declaration of title to land and/or trespass or injunction is to identify accurately the location and extent of the land which he claims. In other words, the first duty of a Plaintiff in such circumstances is to lead credible evidence that will establish accurately the identity of the land in dispute. Therefore, even where the Plaintiff has traced his genealogy accurately but such genealogy is not linked or tied to a definite parcel of land, which is the source of his claim, there will be no parcel of land upon which the declaration can be tied to, as the declaration cannot be made in vacuum. In the absence of proof of identity of the land to which the declaration can be related, the declaration cannot be made. See Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt. 964) 337; Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362; Otanma v. Youdubagha (2006) LPELR-2821 (SC); Momoh & Ors. v. Umoru & Ors. (2011) LPELR-8130 (SC) and Nwokorobia v. Nwogu & Ors. (2009) LPELR-2127 (SC). Thus in Okedare v. Adebara & Ors. (1994) LPELR-2432 (SC) the Supreme Court per Adio, JSC said:
“A Plaintiff in a claim for declaration of title or statutory right of occupancy must prove ascertainable boundaries, since the Plaintiff’s first duty is to prove, with certainty, the area over which he claims. A Plaintiff is required to establish with certainty and precession the area of land to which his claim relates. If he fails to prove the boundaries or the identity of the land in dispute, the claim will be dismissed …”

I have carefully read and reflected on the claims of the Plaintiffs/Respondents as pleaded in the Amended Statement of Claim. What I have come to appreciate is that the Plaintiffs/Respondents who sued in a representative capacity, did not sue the Defendants/Appellants in representative capacity. In other words, each of the Appellants was individually sued or sued in his individual capacity. This is evident in paragraphs 8, 9 and 10 of the Amended Statement of claim which state as follows:
8. As Zurumai Sarkin Sabon Gida, Plaintiff’s father loaned part of the vast land at Laitapi to one Sarki Zayi, the grandfather of the 1st Defendant who came to borrow the land in company of one Wuma Numa Kuchere and one Adamu Waziri. Sequel to which an agreement was entered in 1985. The said agreement is hereby pleaded.
9. The Plaintiffs aver that the 2nd Defendant’s father Machi was a nephew to Umaru; he approached him as his maternal uncle and begged for a portion of land on loan which Umaru obliged.
10. The 3rd Defendant is a boundary man of the vast farmland at the east, he trespassed into the Plaintiffs’ farmland, upon confrontation, and he claimed title to the land in spite of the boundary trees planted over 30 years by both Umaru and Dagai, 3rd Defendant’s father.

Considering the nature of the pleadings reproduced above, and the nature of the claim, the Plaintiffs/Respondents had the burden to plead and lead evidence in respect to the specific portions or parcels of land upon which the claims against each of the Defendants/Appellants was made. In other words, since the Respondents claimed to have loaned parcels of land to each of the 1st and 2nd Appellants, the specific extent, location and size of the parcel of land granted or loaned to each of the 1st and 2nd Appellants ought to have been specifically pleaded and evidence led thereon. The same principle applies in relation to the parcel of land said to have been trespassed upon by the 3rd Appellant.

The law gives liberty to a Plaintiff to adduce evidence as to the identity of the parcel of land by one or two ways. The Plaintiff may adduce oral evidence which will establish the location, boundaries and physical features on the land. Such description must be such that, a surveyor armed with the description may draw an accurate plan of the land. The Plaintiff may draw and tender a survey plan of the land. Such survey plan must show clearly, the dimensions of the land, the boundaries and other salient features thereon. See Nwoke & Ors. v. Okere & Ors. (1994) LPELR-2122 (SC); Olufosoye & Ors. v. Olorunfemi (1989) LPELR-2615 (SC); Dada v. Dosunmu (2006) LPELR-909 (SC) and Oke & Ors. v. Eke & Ors. (1982) 12 SC. 218. Thus, in Okonkwo & Ors. v. Okonkwo & Ors. (2010) 14 NWLR (Pt. 1213) 228, the Supreme Court per Adekeye, JSC held that:
“…, in discharging the burden of identity of the land in a claim for declaration of title to land, the claimant must prove the identity of the land and boundaries of the land in dispute. The burden can be discharged by oral description of the land or by survey plan showing clearly the area to which the claim relates”.
In line with the above cited decision, I held in the case of Babatola v. Adewumi (2011) LPELR – 3945 (CA) as follows:
“The Plaintiff can succeed in proving the identity of the land by adducing evidence which is such that it ascertains the land in dispute without any doubt whatsoever. Such evidence must be of such quality that the description of the land in dispute is so clear it leaves neither the Court nor the defendant in any doubt as to the specific area claimed, in the sense that, from the description given by the Plaintiff, a Surveyor can produce a plan showing accurately the land in dispute …A better way of proving the identity and extent of the land claimed is for the Plaintiff to file or tender a survey plan showing or reflecting clearly the boundaries, location or extent of the land he claims. The Plan must show clearly the dimensions of the land, the location of the land, the boundaries of the land and other salient or clear features appertaining the land in dispute …”

In the instant case, the Plaintiffs/Respondents had pleaded the identity of the land claimed against the Appellants in paragraphs 2 and 3 of the Amended Statement of Claim as follows:
2. The Plaintiffs aver that they are the owners by inheritance of a large piece of land stretching from Laitapi to Wonu Village.
3. The boundaries of the land are as follows:
(a) EAST with one Jaba Inuwa Dagai (3rd Defendant).
(b) WEST with a footpath to Bereko and Lashin Villages linking with Kuta-Minna main road after which is one Tuwa’s farmland.
(c) NORTH is a stream called Wonudna; and
(d) SOUTH is Damidami’s farmland.

Now a careful construction of the above pleadings will show that, the description of the land therein, refer to the entirety of the large or vast parcel of land, stretching from Laitapi to Wonu Village, allegedly inherited by Respondents. However, paragraphs 8 and 9 relate to portions of that large parcel of land, said to have been loaned to each of the 1st and 2nd Appellants by the Respondents’ progenitors. That being so, I am of the firm view, that a Survey Plan of the entire parcel of land inherited by the Respondents, indicating the specific portions of land loaned to each of the 1st and 2nd Appellants’ progenitors will be clearly indicated. In determining the identities of the parcels of land claimed against the Appellants, the learned trial Judge held at pages 229-230 of the record of appeal as follows:
“It is noted that the boundaries of the Plaintiffs’ land as given by each of the witnesses under cross-examination are different from that given in evidence in chief and the amended statement of claim. It cannot however be denied, that names of the boundaries and boundary men have remained constant, in their testimonies as mentioned in amended statement of claim and evidence in chief which are Jaba Inuwa, footpath road from Bereko to Gyegiyako, Wonu river or streams. The discrepancies in placement of these names to a particular direction such as East, West, South and North does not affect or create new boundaries to the land and do not affect the substance of the Plaintiffs’ case”

It is apparent that though the learned trial Judge recognised the contradictions in the description of the boundaries of the Respondents’ large parcel of land, same was treated as mere discrepancies incapable of affecting the identity of the land in dispute. It should be recognised that, the evidence of identity of the land related only to the parcel of land inherited by the Respondents. No effort was made to plead or lead evidence relating to the specific parcels of land said to have been loaned to each of the 1st and 2nd Appellants. Considering the nature of the Respondents’ claims against each of the Appellants, a Survey Plan, drawn and tendered by the Respondents, would no doubt, have resolved the issue of identity of the parcels of land loaned to each of the 1st and 2nd Appellants; and also that upon which the 3rd Appellant allegedly trespassed. Incidentally, the learned trial Judge found the claim of trespass against the 3rd Appellant as not proved in view of the contradictions in the testimony of the witnesses, as to what part of the Plaintiffs’ land the 3rd Appellant trespassed on. In the same vein, in the absence of the Survey Plan, the contradictory oral evidence of the Respondents’ witnesses, proved fatal to the proof of identity of the parcels of land loaned to each of the 1st and 2nd Appellants.

Now, it is the settled law that, before a Court trying a case on declaration of title to land, trespass and injunction, can go into the facts of the case, it must first of all, satisfy itself that the identity of the land in dispute has been proved with certainty. Where the identity of the land has not been established with certainty, the proper order is to dismiss the case. See Okonkwo v. Okonkwo (supra); Aiyeola v. Pedro (2014) LPELR -22915 (SC) and Ukaegbu & Ors. v. Nwololo (2009) LPELR-3337 (SC). Thus in Yesufu Ogedengbe & Ors. v. Chief J.B. Bologun & Ors. (2007) LPELR-2297 (SC), the Supreme Court held that:
“It is firmly settled that, where a Plaintiff in an action for declaration of title, fails to prove the boundaries of the land he is claiming, he has failed by that omission, to prove his case and the proper order which the Court should make in such circumstance, is usually one of dismissal of the claim…”

In the instant case, I have found that the Respondents who were Plaintiffs in the Court below, failed to establish with certainty and/or precisely the specific boundaries it claimed against each of the 1st and 2nd Appellants. The trial Court found the claim of trespass against the 3rd Appellant as not proved, and there is no appeal against such finding. Having found as above, the identity of the land claimed against each of the 1st and 2nd Defendants/Appellants not having been proved, there is no need delving into an enquiry, whether or not the traditional evidence of the Respondents have been properly pleaded and proved by evidence. On that note, I hereby hold that the learned trial Judge erred in law and on the facts when he granted the Respondents’ claims against the 1st and 2nd Respondents. Consequently, the Plaintiffs/Respondent’s claims are hereby dismissed.

It should however be noted that, the Defendants/Appellants filed Counter-claims which the trial Court dismissed. It should be noted that, a Counter-claim is a distinct and separate claim from the main claim. In other words, a Counter Claim is a claim on its own and subject to the same rules as in the main claim. The term Counter-claim has been defined by the Black’s Law Dictionary (8th Ed.) at P. 376, as a claim for relief asserted against an opposing party after an original claim has been made; a defendant’s claim in opposition to or a set-off against the Plaintiff’s claim. It is a cross-action and not merely a defence to the Plaintiff’s claim. See Air Via Ltd. v. Oriental Airlines Ltd. (2004) LPELR-272(SC); Ige & Ors. v. Farinde & Ors. (1994) LPELR-1452 (SC) and Okonkwo v. Cooperative & Commerce Bank (Nig.) Plc. & Ors. (2003) 8 NWLR (Pt. 822) 347. Thus, in Effiom v. Ironbar (2000) 1 NWLR (Pt. 678) 341, it was held that:
“A Counter-Claim is an independent action and need not relate to or be in anyway connected with the Plaintiff’s claim or raised out of the same transaction. It is not even analogous to the Plaintiff’s claim. It need not be an action of the same nature as the original claim. A Counter Claim is to be treated for all purposes for which justice requires it to be treated as an independent action”.
Therefore, being an independent and separate action, must, just like the original claim, be proved by credible evidence. It may be heard and granted, even where the Plaintiff’s claim fails. The bottom line is that, a Counter-claim must also be proved by credible evidence. Therefore, if upon the evaluation of the evidence the trial Court finds that the evidence does not support the counter claim, it must be dismissed.
In the instant case, the 1st and 3rd Defendants each filed a Joint Counter Claim. The 2nd Defendant/Appellant did not file any Counter Claim. The pleadings covering the 1st Appellant’s Counter Claim is reflected in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the Joint Counter- Claim while that of the 3rd Appellant is covered by paragraphs 14, 15, 16, 17, 18 and 19.
Now, as pointed out earlier in the course of this judgment, a counter claim is subject to the same rules on pleadings and proof as the original claim. In other words, a Counter claim must be proved by cogent and credible evidence on the preponderance of evidence. See MAOBISON Interlink Assoc. Ltd. v. U.T. C. (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 197; Gowon v. Ike Okongwu (2013) FWLR (Pt. 147) 1027 and Atiba Iyalamu Savings & Loans Limited v. Mr. Sidiku Ajala Suberu & Anor. (2018) LPELR-44069 (SC) where the Supreme Court, per Kekere- Ekun, JSC held as follows:
“As rightly submitted by learned counsel for the 1st Respondent, a Counter Claim, though filed within an existing suit, is an independent action. The Counter Claimant becomes a Plaintiff while the original Plaintiff becomes the Defendant. The Counter Claimant has the onus of establishing his case just as he would if he were the original Plaintiff. A Counter Claim is subject to the same rules of pleading and standard of proof as the main action …”

Now, apart from the facts pleaded in the paragraphs referred to in paragraphs 1-13 of the Joint Statement of Claim, the 1st Appellant prayed the Court for an order of declaration of title as can be seen in paragraphs 1 and 3 of the Joint Counter Claim. The 3rd Appellant also prayed for an order of declaration of title as can be seen in paragraphs 2 and 4 of the Joint Counter Claim. Therefore, like the original Plaintiffs/Respondents, the Appellants had the burden to lead cogent and credible evidence in support of their Counter Claim. Similarly, the counter claims being for declaration of title, the Appellant also had the onus of establishing the identity of the land they claim. In the instant case, the 1st Defendant/Claimant pleaded the identity of the parcel of land he claims in paragraph 3 of the Joint Counter Claim as follows:
“3. The 1st Defendant/Counter Claimant prays the Honourable Court for a declaration of title in his favour over an expanse of land situated at Wonu Village and bounded by Arewa Machi’s (2nd Defendant’s) farmland by the North, Suleiman Wakili’s farmland by the West and Jaba Inuwa Dagai (3rd Defendant’s) farmland by the East and South”.

In proof of the identity of the land claimed by him, the 1st Defendant/Appellant deposed to a Written Statement on Oath where he stated in paragraph 7 thereof as follows:
“7. The boundaries of the disputed land are Arewa Machi (2nd Defendant’s) farmland by the North, Suleiman Wakili’s farmland by the West and Jaba Inuwa Dagai (3rd Defendant’s farmland) by the East and South”.

The 1st Appellant who testified as the DW5, adopted the Written Statement on Oath as his evidence in support of his claim. His testimony was never contradicted in cross-examination as when cross-examined he testified at page 165 of the record of appeal as follows:
“The land is bounded in the East with Jaba Inuwa Dagai, North with Machi Arewa, West with Suleiman Wakili and South with Jaba Inuwa Dagai. The disputed land is situated at Wonu”.

With the exception of the boundary neighbour by the East, the DW1 who testified in favour of the 1st Appellant corroborated the testimony of the 1st Appellant, even under cross-examination in relation to the identity of the land in dispute. Similarly, the testimony of Suleiman Wakili, a boundary man who testified as DW2, accurately corroborated the description of the land pleaded by the 1st Appellant, and was never contradicted in cross-examination. DW3, a 75 years old man also gave evidence on the boundaries of the 3rd Appellant’s land in dispute. The 3rd Defendant/Appellant also testified that, his own parcel of land is bounded to the West by the 1st Defendant/Appellant’s farmland.

In respect of the Counter-claim of the 3rd Defendant/Appellant, I find that the facts pleaded in respect of the identity of land claimed by the 3rd Appellant is covered by paragraph 4 of the Joint Counter-Claim as follows:
“4. The 3rd Defendant/Counter Claimant prays the Honourable Court for a declaration of title in his favour over an expanse of land situated at Wonu Village and bounded to the North by Tukura Samana’s farmland, to the South by River Wana, to the East by Adamu Chiroma’s farmland and to the West by the 1st Defendant’s farmland”.

The 3rd Appellant who testified as the DW4 gave evidence in respect of the boundaries of the parcel of land he claims in paragraph 6 of his Written Statement on Oath as follows:
“6. That the disputed land is bounded to the North by Tukura Samana’s farmland, to the South by River Wana, to the East by Adamu Chiroma’s farmland and to the West by the 1st Defendant’s farmland”.

This statement is repeated in paragraph 8 of the said Written Statement on Oath.

I have carefully read the judgment of the trial Court. In so doing, I could not find where the learned trial Judge made any finding in respect of the identity of the parcels of land claimed by each of the 1st and 3rd Respondents. There is no appeal on that omission by the learned trial Judge. However, in view of my finding above, I find that each of the 1st and 3rd Appellants were able to establish the identity of the parcels of land claimed by them. My duty now is to consider, whether, from the evidence adduced by the said Appellants in proof of their counter-claims sufficiently established their titles to the parcels of land claimed by each of them.

It is clear from the pleadings that both claimants based their claims on traditional history. It is now trite law, that in an action for declaration of title to land based on traditional history or evidence, the claimant has to lead cogent and credible evidence which will establish the following facts to the satisfaction of the Court:
(a) who founded the land in dispute;
(b) how the land was founded, i.e through grant, purchase, conquest, first settlement, etc.
(c) the particulars of the intervening owners, from the original founder of the land down the line of succession to the claimant.
The evidence of the line of succession must be without any intervening owners or breakage in the line of succession. If there is any such intervention or breakage in the ownership, it must be explained to the satisfaction of the Court. See Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393; Idundun v. Okumagba (1976) LPELR-1431 (SC); Osidele & Ors. v. Sokunbi (2012) 15 NWLR (Pt. 1324) 470; Ewo & Ors. v. Ani & Ors. (2004) 3 NWLR (Pt. 861) 610 and Anyafulu & Ors. v. Meka & Ors. (2014) 7 NWLR (Pt. 1406) 396.

In the instant case, the 1st Counter-Claimant/Appellant pleaded the root of his title to the parcel of land claimed by him in paragraphs 3, 4, 5 and 6 of the 1st and 3rd Defendants’ Joint Statement of Defence as follows:
“3. The 1st Defendant, in further denial of those paragraphs of the statement of claim, states that it was his great grandfather, named Darato Samana that first cultivated and founded the disputed land about 300 years ago.
4. The 1st Defendant further states that his said great grandfather, Darato Samana had farmed and lived on the disputed land with relics of his old settlement still visible on the land and on his demise, he was buried on the land and Sasai Darato (his son and the 1st defendant’s grandfather) inherited the disputed land from him.
5. The 1st Defendant avers that, his grandfather (Sasai Darato) also farmed and lived on the disputed land and on his demise, he was buried on the land with his grave still visible thereon and his son (the 1st defendant’s father), Maiangwan Sasai inherited the disputed land from him.
6. The 1st Defendant further avers that his father Maiangwan Sasai, also farmed and lived on the disputed land and when he died, he was also buried on the disputed land with his grave still visible thereon and the 1st Defendant inherited the land from him whereon he also farms and lives, to date.

The 1st Appellant denied that his progenitor was loaned the parcel of land by anyone. That rather, it was the Respondents who trespassed on the land.

The 3rd Defendant/Appellant also pleaded the root of his title to the parcel of land he claimed in paragraphs 15, 16 and 17 of the 1st and 3rd Defendants’ Joint Statement of Defence as follows:
“15. The 3rd Defendant, in further denial of any form of trespass to the Plaintiffs’ supposed land, states that his grandfather (Sarmai Samana) was the first to cultivate the disputed land located at Wonu Village, a very long time ago.
16. The 3rd Defendant further states that his grandfather (Sarmai Samana) had farmed and lived on the land with relics of his old settlement still visible thereon and on his demise, his son (the 3rd Defendant’s father) Chiroma Samana inherited him and also farmed and lived on the land until his demise.
17. The 3rd Defendant avers that following his father’s demise, he had inherited him and has continued farming on the land to date, with crops such as yarn, maize, groundnuts, etc, being planted on the land from year to year.

Both claimants also pleaded that, they have exercised acts of ownership over their respective parcels of land, such as the planting of economic trees and other food/cash crops.

The learned trial Judge considered the evidence led on the traditional history of each of the 1st and 3rd Appellants, and came to the conclusion that the 1st and 3rd Appellants failed to prove their claim by way of traditional history. The learned trial Judge based his verdict on the ground that, the traditional history led by each of the 1st and 3rd Appellants were inconsistent and contradictory; and therefore, unreliable. I have carefully reflected on the evidence adduced through the Appellants’ witnesses. The DW1, apart from adopting his Written Statement on Oath, was fully cross-examined. The DW1 had indeed testified under cross-examination that, he knows the name of the father of Chawo Sarkin Zai (Zayi). It should be noted that, it is apparent from the Written Statement on Oath of DW1, the DW1 did not testify on the traditional history of the 1st Appellant’s parcel of land. He testified exclusively on what transpired when the 1st Appellant reported the Respondents’ action to the Hakimi (District Head) of Kuta. The DW1 therefore did not claim to know the traditional history of the land claimed by the 1st Appellant. The said witness also did not say anything in his Written Statement on Oath in respect of the parcel of land claimed by the 3rd Appellant. Therefore, the issue of contradiction or inconsistency in his testimony on the traditional histories of the Appellants will not arise.

The DW4 and DW5 who are the 3rd and 1st Appellants respectively, were not in anyway contradicted under cross-examination in respect of the traditional histories given by them on their Written Statements on Oath. The learned trial Judge relied on certain parts of the testimonies of the witnesses that testified for Appellants to hold that due to certain inconsistencies and/or contradictions the, traditional evidence led by each of the Appellants are unreliable. However, the Supreme Court has admonished Courts to be wary in concluding that a party’s version of traditional history is improbable simply because of inconsistencies which do not touch on the root of the claim pleaded. SeeJolayemi v. Olaoye (1991) 11 NWLR (Pt. 624) 600 at 617; Makinde & Ors. v. Akinwale & Ors. (2000) 2 NWLR (Pt. 645; Akinrimisa & Anor. v. Kure & Ors. (2014) LPELR-23133(CA) and Sarki v. Lamela (2016) LPELR-40338 (CA). Thus in Salawu v. Yusuf(2007) LPELR – 2988 (CA) the Supreme Court held as follows:
“In human life, the memory fails and in these times of racing economic inflation resulting in poverty, memories fail, more regularly. For two or more witnesses to give an account by way of traditional evidence to the smallest or minutest detail, should expose such evidence to the suspicion of the Court. Thus, I am of the opinion that the few or minor inconsistencies or contradictions or discrepancies in the evidence of witnesses who gave traditional evidence, does not ipso facto imply that the witnesses are not witnesses of truth or render their evidence liable to disbelief, provided their evidence is not radically contradictory in material respect”.
It therefore means that in proof of title to land by traditional evidence, minor discrepancies or inconsistencies are countenanced. It is my view, that the inconsistencies and/or contradictions pointed out by the trial Court, are not material. It is therefore my finding that each of the 1st and 3rd Appellants successfully proved the root of their title to the parcels of land claimed by them. The Counter-Claim of each of the 1st and 3rd Appellants is therefore allowed.

Having held as above, it is my view, which I hold, that the appeal has merit and it is hereby allowed. Consequently, I hereby order that the judgment of the Niger State High Court of Justice, sitting in Minna and delivered on the 9th day of March, 2018 in Suit No. NSHC/MN/134/2013 is hereby set aside. Instead, I hereby enter judgment for the 1st and 3rd Defendants/Counter-Claimants/Appellants as follows:
1. It is Declared that the 1st Appellant is the customary owner of the expanse of land situated at Wonu Village and bounded by Arewa Machi’s farmland by the North, Suleiman Wakili’s farmland by the West and Jaba Inuwa Dagai’s farmland by the East and South.
2. It is Declared that the 3rd Appellant is the customary owner of the expanse of land situated at Wonu Village and bounded to the North by Tukura Samana’s farmland, to the South by River Wana, to the East by Adamu Chiroma’s farmland and to the West by the farmland of the 1st Appellant (Chawo Sarki Zayi).
3. An Order of Perpetual Injunction is granted restraining the Respondents, their agents, privies and assigns from trespassing into the 1st and 3rd Appellants’ respective parcels of land captured in reliefs 1 and 2 above.
4. I award the cost of One Hundred Thousand Naira (N100,000.0) against the Respondents in favour of each of the 1st and 3rd Appellants.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the lead Judgment by my learned brother, Haruna Simon Tsammani, JCA, and I am in total agreement with the reasoning and conclusion reached therein.

I find the appeal meritorious and is hereby allowed. In consequence, I also set aside the judgment of the Niger State High Court of Justice sitting in Minna, delivered on the 9th day of March, 2018 in Suit No. NSHC/MN/134/2013 and abide by orders made therein.
I make no order as to costs.

DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft before now, the lead judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA just delivered and I agree with the in-depth analysis of the issues raised and determination of same. Issue one of the Appellants which bothers on complaints from Grounds 1, 2 and 3 against the decision of the trial Court, it is trite law that in a claim for declaration of title to land, the claimant has the onerous duty to establish the identity of land with certainty. Where the identity of the land has not been proved and established with certainty, the claimant would not be entitled to such declaration and the claim would be dismissed. In the case of MINISTRY OF LANDS & HOUSING, BAUCHI STATE & ANOR V ALHAJI YAKUBU SALE TIRWUN, (2017) LPELR-43314, this Court, as per ABIRU JCA held as follows:-
“This duty to establish the identity of the land in dispute with certainty is referred to as the foremost and fundamental duty of a person claiming an interest in land because where a claimant fails to plead and establish the precise area of the land to which his claim relates, whatever evidence, whether oral or documentary, he produces at the trial and however cogent and credible the evidence might appeal, it cannot in law, ground a claim of an interest in land in his favour.Iordye v Ihyambe, (2000)15 NWLR (PT 692) 675, Ibhafidon v Igbinosun, (2001) 8 NWLR (PT 716)653, Jinadu v Esurombi-Aro, (2005)14 NWLR (PT 944)142, Ansa v Ishie (2005)15 NWLR (PT 948) 210, Nwokidu v Okanu (2010)3 NWLR (PT 1181)362. In Odunze v Nwosu, (2007)13 NWLR (PT 1050)1, the Supreme Court stated that before a Court trying a land case goes into the facts of the evidence it must firstly satisfy itself of the certainty of the land in dispute and its boundaries”
In the case of ABIODUN ADELAJA & ORS V YESUFU ALADE & ANOR, (1999) LPELR-109, the Supreme Court per ACHIKE, JSC held:-
“It is now well settled I think, that in an action for declaration of title to land, the identity of said land must be as curtained with certainty. While a plan is not a sine quo non in all cases for declaration of title to land, nevertheless the land must be described with such degree of accuracy that the said parcel of land to which the declaration of title is sought to be tied cannot be in any doubt. Needless to say that the onus is on the plaintiff to establish the identity of the land in dispute. See Baruwa v Ogunsola, 4 W.A.C.A 159 and Kwadzo v Adjei, 10 W.A.C.A 274. “

Now going by the amended pleading of the Respondents at the trial Court especially paragraphs 8, 9 and 10, and the testimonies of three witnesses called by the Respondents, the burden rest squarely on the Respondents to establish their claims by adducing evidence to the exact portions of land in which the declaration sought relates. And this the Respondent fails to do and thus the Respondent is not entitled to the declaration sought.

Having said the above, I have nothing else to add but I endorse the findings in the lead judgment as mine and I also adopt the consequential orders made including order of cost as mine.