AL KASUM v. GIDADO & ANOR (2020)

AL KASUM v. GIDADO & ANOR

(2020)LCN/14807(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, November 24, 2020

CA/YL/88/2019

RATIO

LAND LAW: WAYS OF PROVING TITLE TO LAND

In the locus classicus Idundun vs. Okumagba (1976) 6 & 10 S.C 227 at 246 the Supreme Court laid down the five methods of establishing title to land as follows:
(a) By traditional evidence;
(b) By production documents of title;
(c) By various acts of ownership and possession numerous and positive to warrant the inference of ownership;
(d) By acts of long possession and enjoyment of the land; and
(e) By possession of land adjacent to the land in dispute in such circumstances rendering it probable that the owner of the adjacent land is also the owner of the land in dispute – Mogaji vs. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393; Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301; Onwugbufor vs. Okoye (1996) 1 NWLR (Pt. 424) 252; Salami vs. Lawal (2008) 14 NWLR (Pt. 1108) 546; Ayorinde vs. Sogunro (2012) LPELR-SC12/2006; Faleye vs. Dada (2016) LPELR-SC.315/2006.
It is not necessary to plead more than one of the above methods to succeed in establishing title to land. Proof of additional methods can only be by way of caution – Ojoh vs. Kamalu & Ors. (2005) 18 NWLR (Pt. 958) 523 at 574-575; Lawson vs. Manuel (2006) 10 NWLR (Pt. 989) 569; Nruamah vs. Ebuzoeme (2013) LPELR-19771(SC). PER MAHMUD BAYERO, J.C.A.
LAND LAW: BURDEN OF PROOF IN AN ACTION FOR THE DECLARATION OF TITLE

The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the declaration of title claimed. He must succeed on the strength of his case and not on the weakness of the Defendant’s case – Anyanwu vs. Mbara (1992) 5 NWLR (Pt. 242) 381; Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31; Oyeneyin vs. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. If the onus is not discharged, the weakness of the Defendant’s case will not help the Plaintiff and the proper judgment will be one dismissing his case. Where however, the case of the Defendant supports that of the Plaintiff, the Plaintiff could rely on it – Kodinliye vs. Odu (1935) 2 WACA 335; Onisaodu vs. Elewuju (2006) 13 NWLR (Pt. 998) 517 at 529-530. PER MAHMUD BAYERO, J.C.A.

LAND LAW: REQUIREMENTS TO SUCCEED IN PROVING TITLE THROUGH TRADITIONAL HISTORY

To succeed in proving title through traditional history, the Plaintiff or Claimant must prove his title by conclusive and cogent evidence of tradition. The traditional history will succeed on its merit standing alone or fail where such history breaks down for being unreliable in nature or owing to its own internal contradictions. In order to rely on traditional history, a party must plead and prove:-
(a) Who founded the land;
(b) In what manner the land was founded and;
(c) The successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained – Akanbi vs. Salawu (2003) 14 NSCQR 1071 at 1079; Ewo vs. Ani (Supra) at 53-54 and Falomo vs. Onakanmi (2005) 11 WRN 141 at 170. PER MAHMUD BAYERO, J.C.A.

LAND LAW: DEFINITION OF EVIDENCE OF TRADITIONAL HISTORY

In the case of Salisu vs. Mobolaji (2016) 15 NWLR (Pt. 1535) 242, the Supreme Court defined evidence of traditional history as follows:
“It is history in which no living person can give an eye-witness account. Evidence in respect of it is the story handed down from generation to generation by word of mouth as hearsay. But, although evidence of traditional history is hearsay, it must be a true story, in the sense that it was not concocted; or at least have a semblance of it in the sense that it is not incredible even though it may not always have the sanctity of truth.” PER MAHMUD BAYERO, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa 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

PROFESSOR AL KASUM (Suing For Himself And On Behalf Of The Heirs Of Late Wazirin Adamawa Muhammad Abba) APPELANT(S)

And

1. MUHAMMAD GIDADO 2. ABUBAKAR MUHAMMAD RESPONDENT(S)

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of Adamawa State High Court in Suit No. ADSY/112/2017 delivered on 21/01/2019 by Helen N. Hammanjoda J. By a writ of summons dated 25th August, 2017 the Appellant/Plaintiff claimed against the Respondents/Defendants as follows:-
1) A Declaration that the house in dispute situated at No. 51 Galadima Faruk Street, Makama ‘B’ Ward, Yola-Town, Yola-South LGA (popularly known as Patu Digol house) is the property of the Plaintiff’s father Waziri Mohammed Abba (deceased) and now to his heirs.
2) A Declaration that the disputed house was only given to Hajiya Patu Digol to reside in by the Plaintiff’s father at the request of Lamido Ahmadu.
3) A Declaration that the Defendants had no connection with the ownership of the disputed house and same now forms part of the estate of the Plaintiff’s father Mohammed Abba late Waziri of Adamawa.
4) A Declaration that the acts of the Defendants in tampering and interfering with the disputed house situate at No. 51, Galadima Faruk Street, Makama

‘B’ Ward, Yola-Town are unlawful, illegal and constitutes acts of trespass by the Defendants on the disputed property.
5) An Order of perpetual injunction restraining the Defendants, their agents, privies or any person claiming the ownership of the disputed house through the Defendants from tampering and interfering with the disputed house.
6) An Order of Court for damages for trespass in the sum of N10,000,000.00k (Ten Million Naira).
7) The costs of this action.
8) Further or better Reliefs.

The Appellant called five witnesses PW1, PW2, PW3, PW4 and PW5 and tendered six exhibits A1, A2, B1, B2, C1 and C2. The Respondents testified as DW1 and DW2 and tendered five exhibits D1-D4 and F respectively. The lower Court entered Judgment in favour of the Respondents. Miffed with the decision, the Appellant filed the Notice of Appeal on 19/02/2019. The record of Appeal was compiled and transmitted to this Court on 10/05/2019 but deemed as properly compiled and transmitted on 7/10/2019. Additional record was transmitted on 9/12/2019 but deemed on 12/03/2020. The Appellant’s Brief was filed on 15/11/2019, while the

Respondents’ Brief was filed on 16/12/2019.

In the Appellant’s Brief, a sole issue is formulated for determination thus:-
“Whether from the totality of the evidence before the Hon. Court the Appellant has proved his case at trial Court as required by law and entitled to all the reliefs sought. (Distilled from Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10).”

According to Counsel, the Appellant has pleaded and proved the founder of the land in dispute as his 1st great grandfather by name Alkasum in 1841, how Alkasum founded the land by first settlement and particulars of the intervening owners Alkasum 1841 to 1948; Galadima Faruk 1948 to 1909; Galadima Goni 1909 to 1919; Mohammed Dikko 1919 to 1932; Abubakar Galadima Goni (Bobboi Galadima) 1932 to 1965; Mohammed Abba (Plaintiff’s Father) 1965 to 2017; and Plaintiff and heirs of late Mohammed Abba 2017 to date – Paragraphs 18 to 38, 41 to 48, 59 to 62 of the Statement of Claim and Paragraphs 19 to 38, 42 to 48, 59 to 62 of the evidence in chief of PW1 – Pages 7 to 11, and 17 to 21 of the Printed record.

That the Appellant had therefore traced the lineage through

unbroken chain of successors on how the land eventually culminated and devolved on him and his siblings – Okoli & Ors v. Nwanne & Ors (2013) LPELR-22895(CA) and Aborode v. Afolabi & Ors (2014) LPELR-24382 (CA).

That the testimonies of traditional evidence by the Appellant’s witnesses especially that of PW1 was never discredited or challenged during cross-examination and therefore cogent and reliable to support a claim for declaration of title to the land to him without further requirement – Febson Fitness Centre v. Cappa H. Ltd (2015) 6 NWLR (Pt.1455) 203 at 280 Para. F and Eze v. Atasie & Ors. (2000) LPELR 1190 (SC).

According to Counsel, even the trial Court at Page 323 of the record agrees with the genealogy of the Appellant as demonstrated but that what the trial Court queried was the connection of the genealogical trial with the land in dispute; when it held that the genealogy relates only to how Alkasum Family came to Yola town but has no connections with the land in dispute. According to Counsel, the finding of the trial Court that the genealogy relates only to how Alkasum family came to Yola, is with due

respect, not correct. That the genealogical tree of the Appellant is contained in Paragraphs 18 to 31 of the deposition of PW1 at Pages 17 and 18 of the Printed record.

That Paragraph 19 specifically states that Alkasum the progenitor of Alkasum family founded the land in dispute by first settlement, Paragraph 26 unequivocally mentioned Galadima Faruk as the one who built the house in dispute; contrary to the findings of the trial Court at Page 323 of the record that the Appellant failed to tell the Court how the land was founded and developed.

That the trial Court was also wrong when it accepted part of the traditional evidence of the Appellant that relates to genealogical tree of Alkasum and rejected those part of the traditional evidence of the genealogy of the Appellant that relate to the land in dispute – Morenikeji & Ors. vs. Adgbeosin & Ors. 2003 LPELR -1911(SC).

That PW1 being a historian (Professor in History) who published a book of the history of Yola can give credible evidence of traditional history – Arowolo v. Olowookere (2011) LPELR-561 (SC) and Sogunro & Ors. vs. Yeku & Ors. (2017) LPELR-14905 (SC)

That the Respondents have neglected, omitted and failed to call any evidence on issue of traditional evidence to controvert the case of the Appellant – Ansa & Ors. v. Addax Petroleum Development (Nig) LPELR-21128 (CA).

That PW3 and PW5 are present occupants of the disputed house since 2013 and 25 years ago respectively while PW3 testified from paragraphs 4 to 14 of his evidence in-chief on how he was let into the house in dispute by the Appellant’s father through PW4. That PW5 who testified from Paragraphs 4 to 11 of his written deposition on oath said he was told by the Respondents’ mother that the house belongs to the Appellant’s father; and at Paragraphs 17 to 23 further testified that Amina Digol during her lifetime or the Emirate council did not challenge PW3 when he was renovating the house or ever claim the house in dispute – Pages 155 to 156 of the Printed Record.

That the evidence of PW1, PW2 and PW5 having not been discredited or challenged is credible and cogent to support a claim of traditional history put forward by the Appellant/Plaintiff – Ezeakabekwe & Ors. v. Emenike 1998 LPELR-1197 (SC). According to

Counsel, Akasum and Galadima Faruk were named after some street in the area as founding fathers not as specific owners which evidence of recent event corroborates the evidence of traditional history put forward by the Appellant. That the Appellant’s witnesses are unanimous in their evidence that the house was given to Patu Digol on temporary basis.

That PW1 and PW4 whose evidence are contained in Paragraphs 42 to 43 and 17 of their depositions respectively at Pages 19 and 32 of the Printed record respectively shows that the house reverted back to the original owner, the Appellant’s father who took over possession of the house in dispute since 1993 up to 2017 when he died.

According to Counsel, the Respondents themselves who testified as DW1 and DW2 admitted during cross examination at Pages 283-286 of the Printed record that the only surviving heir of Patu Digol at the time of her death was the Respondents’ father, but that the land was not inherited by him instead the land reverted back to Lamido who again gave it to Aminatu Digol. That this shows clearly that the land was not given to Patu Digol as an absolute gift otherwise it

would have formed part of her estate. That the Appellant is therefore entitled to rely on the evidence of the Respondents – Salisu v. Mobolaji (Supra) at Page 287 Paras A-D, Akinola v. Oluwo (1962) 1 All NLR 224, (1962)1 SCNLR 352; Kupoluyi v. Phillips (2001) 13 NWLR (Pt.731) 736 at 760 and 768: also Odi v. Iyala (2004) 8 NWLR (Pt.875) 283 at 310.

On the finding of the trial Court at Page 322 of the Printed record that Patu Digol had exercised acts of ownership on the land by building on same, Counsel submitted that mere building or improvement on the land without more would not confer ownership on her – Bamgbose v. Oshoko & Anor (1988) LPELR-734 (SC). That what the Respondents ought to have done was to establish the title of Patu Digol or Aminatu Digol or that of Lamido whom the Respondents claimed to be the one who gave Patu and Aminatu Digol before relying on long possession and improvement on the land – Bako & Anor vs Audu & Anor (2018) LPELR-44394.

That the trial Court at Page 326 of the Printed record held that the Respondent cannot be liable for trespass because the Appellant did not prove the essential elements of house

trespass under Section 344 of the Penal Code.

That the trial judge did not appreciate the nature of the Appellant’s case and the reliefs sought before the Court. That the case of the Appellant is civil and all the reliefs sought are in the nature of civil case. However, the trial Court seems to understand the reliefs sought by the Appellant in the nature of criminal case by relying on Section 344 of the Penal Code to refuse the reliefs sought – Page 326 of the Printed record. That the implication of the trial Court’s reliance on Section 344 of the Penal Code is that it placed heavier burden of proof beyond reasonable doubt in a criminal case on the Appellant as against the normal burden of proof on balance of probability and preponderance of evidence. According to Counsel, that might have influenced the mind of the trial Judge to hold that the Appellant did not prove his case as required by law, and consequently dismissed same which occasioned miscarriage of justice.

He urged the Court to resolve the sole issue in favour of the Appellant and against the Respondents, allow the Appeal and set aside the Judgment of the lower Court. In

the Respondents’ Brief the sole issue formulated by the Appellant was adopted thus:-
Whether the trial Judge was justified in dismissing the claims of the Plaintiff/Appellant for declaration of title to the disputed house and for damages for trespass thereto on the basis of the pleadings and evidence that was before the Court? (Distilled from grounds 1,2,3,4,5,6,7,8,9 and 10 of the grounds of appeal).

Learned Counsel submitted that the inadvertent reference to Section 344 of the Penal Code by the trial Court in the Judgment at Page 326 of the record of appeal, did not impose any higher burden of proof on the Appellant in respect of his claim for damages for trespass to the disputed house and that the trial Court was justified in dismissing the Appellant’s claims.

That the Appellant has failed to plead and prove the essential elements of the tort of trespass to land against the Respondents to warrant the award of damages for trespass to land against the Respondents.

That apart from the failure of the Appellant to plead and prove entry by the defendants he also failed to plead and prove that he was in exclusive possession of the

house because the disputed house was and remains occupied by members of Hajia Patu Digol’s band except the two-bedroom flat. That the Appellant failed to plead and lead legally acceptable and credible evidence in support of his case that it was with the consent and authority of Bobboi Galadima and his father that Lamido Ahmadu gave the land together with the two room building that was then on the land to late Hajiya Patu Digol.

That Paragraphs 33, 38 and 58 of the statement of claim are not consistent as to who gave the two room building that was on the land to late Hajiya Patu Digol because there are three versions pleaded by the Appellant as to who gave the house to Patu Digol. That house was given to Lamido Ahmadu by Bobboi Galadima and Mohammed Abba (late Waziri) and it was Lamido Ahmadu who gave the house to Hajiya Patu Digol – Paragraphs 33 and 34 of the Appellant’s/Plaintiff’s statement of claim. That it was Bobboi Galadima and Mohammed Abba (late Waziri) that gave the house to Patu Digol at the request of Lamido Ahmadu – Paragraph 38 of the Plaintiff’s/Appellant’s statement of claim; and that it was Mohammed Abba

(Appellant’s father) who gave the house to Patu Digol. Paragraph 58 of the Appellant’s/Plaintiff’s statement of claim.

That parties are not allowed to make inconsistent assertions on the same question of fact or to adduce inconsistent evidence over one and the same issue and that a party who adduces inconsistent evidence on the same issue, damages his case – Basil vs. Fajebe [2001] 3 MJSC 87 Ratio 6 101 Para. F-G. That the inconsistencies in the pleadings and evidence of the Appellant as to who gave the house to late Hajiya Patu Digol is fatal to his case.

According to Counsel, the evidence of PW2 lacked evidential value because having conceded under cross-examination that he was born on the 3rd August 1967, his testimony cannot qualify as evidence of traditional history in so far as the witness failed to disclose the source of his story of what happened in 1946 long before he was born in 1967. That PW3 under cross-examination stated that he does not know if it was Lamido Ahmadu who gave the house to Hajiya Patu Digol and that he could not give the history as to who gave her the house – Page 274 of the Printed record.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

That PW4 further contradicted himself by stating in one breath that it was his father who gave the house to Patu Digol and in another breath that it was Lamido Ahmadu who put Patu Digol in possession through his father and eventually conceded that he did not know who gave the house to Patu Digol – Page 275 of the Printed record. According to Counsel, the testimony of a witness as to events that took place long before he was born as if he was present without stating the source of his story or that it was passed down to him by any person either orally or in writing, cannot be admissible evidence of traditional history and must be discountenanced as inadmissible evidence. That since there is nothing on record to show that the story of the Appellant/Plaintiff as PW1 about events that took place from 1841 (long before even his own parents were born) was handed down to him from any past generation or that he was told by any person whether living or dead; then the testimony of the witness does not qualify as evidence of traditional history as defined by the Supreme Court in the case of Salisu vs. Mobolaji (2016) 15 NWLR (Pt. 1535) 242. That the

contradictions and inconsistencies in the pleadings and testimonies of the Appellant’s/Plaintiff’s witnesses as to who gave the two-roomed apartment to Hajiya Patu Digol are very material contradictions that are fatal to the case of the Appellant/Plaintiff.

Counsel submitted further that the Appellant/Plaintiff did not plead and indeed, none of the Appellant’s witnesses gave evidence that late Hajiya Patu Digol was informed by Lamido Ahmadu, Bobboi Galadima, Mohammed Abba (late Waziri) or any other person whosoever whether at the time when the two-room building was given to her in 1946 or at any other time during the 47 years within which she developed the disputed house and resided therein, that the house that was given to her was on temporary basis that was going to be recovered from her or her heirs. That apart from emphatically denying the traditional history that was pleaded by the Appellant, the Respondents went further and pleaded how Lamido Ahmadu got the house which he gave to late Hajiya Patu Digol in Paragraphs 8-11 of their statement of defence dated 27th October 2017 wherein they pleaded that the land on which

the disputed house is now standing was originally a virgin forest that was founded by Modibbo Adama by deforestation and conversion of the land to a farmland which was used for cultivation of crops like maize and guinea corn until his death whereupon the land devolved on his son called Lamido Lawal who continued to use the land for farming until his death also. That upon the death of Lamido Lawal, his son Lamido Ahmadu inherited the land which he also used for farming and that later, Lamido Ahmadu caused a two-room mud house to be built on the land which he used to accommodate his servant called Jatau who used to cut grasses for the feeding of his horses and that it was this Jatau that Lamido Ahmadu re-located from the two-room mud building which he then gave to late Hajiya Patu Digol.

That the testimony of DW1 in proof of the averments in Paragraphs 8-11 of the statement of defence in Paragraphs 6-11 of his written statement on oath was not challenged or discredited under cross-examination; and that the trial Court was justified in dismissing the case of the Appellant. According to Counsel, late Hajiya Patu Digol was not an allottee of Alkasum

family, but possessed the land as owner pursuant to an unconditional grant by Lamido Ahmadu who was the beneficial owner of the land. Learned Counsel urged the Court to resolve the sole issue for determination in favour of the Respondents and against the Appellant, dismiss the Appeal and affirm the Judgment of the lower Court.

DETERMINATION OF THE APPEAL
The sole issue that calls for determination of this Appeal is:-
“Whether from the totality of the evidence before the lower Court the Appellant has proved his case on preponderance of evidence to be entitled to Judgment or not?”

adjacent land is also the owner of the land in dispute – Mogaji vs. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393; Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301; Onwugbufor vs. Okoye (1996) 1 NWLR (Pt. 424) 252; Salami vs. Lawal (2008) 14 NWLR (Pt. 1108) 546; Ayorinde vs. Sogunro (2012) LPELR-SC12/2006; Faleye vs. Dada (2016) LPELR-SC.315/2006.
It is not necessary to plead more than one of the above methods to succeed in establishing title to land. Proof of additional methods can only be by way of caution – Ojoh vs. Kamalu & Ors. (2005) 18 NWLR (Pt. 958) 523 at 574-575; Lawson vs. Manuel (2006) 10 NWLR (Pt. 989) 569; Nruamah vs. Ebuzoeme (2013) LPELR-19771(SC).
The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the declaration of title claimed. He must succeed on the strength of his case and not on the weakness of the Defendant’s case – Anyanwu vs. Mbara (1992) 5 NWLR (Pt. 242) 381; Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31; Oyeneyin vs. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. If the onus is not discharged, the weakness of the Defendant’s case will not help the Plaintiff and the proper judgment

will be one dismissing his case. Where however, the case of the Defendant supports that of the Plaintiff, the Plaintiff could rely on it – Kodinliye vs. Odu (1935) 2 WACA 335; Onisaodu vs. Elewuju (2006) 13 NWLR (Pt. 998) 517 at 529-530.

Both sides in this Appeal relied on traditional evidence in their attempt to establish their respective title to the land in dispute. To succeed in proving title through traditional history, the Plaintiff or Claimant must prove his title by conclusive and cogent evidence of tradition. The traditional history will succeed on its merit standing alone or fail where such history breaks down for being unreliable in nature or owing to its own internal contradictions. In order to rely on traditional history, a party must plead and prove:-
(a) Who founded the land;
(b) In what manner the land was founded and;
(c) The successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained – Akanbi vs. Salawu (2003) 14 NSCQR 1071 at 1079; Ewo vs. Ani (Supra) at 53-54 and Falomo vs. Onakanmi (2005) 11 WRN 141 at 170.

A careful look at Paragraphs 18-38, 41 to 48, 59 to 62 of the statement of claim, and Paragraphs 19 to 38, 42 to 48 and 59 to 62 of the written depositions on oath of PW1, the Appellant pleaded and led evidence to prove his genealogical tree by only listing the progenitor of Alkasum family and his descendants. Thus:-
1) Alkasum 1841 to 1948;
2) Galadima Faruk 1948 to 1909;
3) Galadima Goni 1909 to 1919;
4) Mohammed Dikko 1919 to 1932;
5) Abubakar Galadima Goni (Bobboi Galadima) 1932 to 1965;
6) Mohammed Abba Plaintiff’s father) 1965 to 2017;
7) Plaintiff and heirs of late Mohammed Abba 2017 to date.
In the case of Salisu vs. Mobolaji (2016) 15 NWLR (Pt. 1535) 242, the Supreme Court defined evidence of traditional history as follows:
“It is history in which no living person can give an eye-witness account. Evidence in respect of it is the story handed down from generation to generation by word of mouth as hearsay. But, although evidence of traditional history is hearsay, it must be a true story, in the sense that it was not concocted; or at least have a semblance of it in the sense that it is not incredible even though

it may not always have the sanctity of truth.”
Going by the definition of evidence of traditional history by the Supreme Court above, for the testimony of any witness as to events that took place long before he was born to qualify as evidence of traditional history, the story must have been passed down to the witness from generation to generation by word of mouth as hearsay. That the testimony of a witness as to events that took place long before he was born as if he was present without stating the source of his story or that it was passed down to him by any person either orally or in writing, cannot be admissible evidence of traditional history and must be discountenanced as inadmissible evidence.
It therefore follows that the pleadings and depositions of PW1 do not qualify as evidence of traditional history and are therefore inadmissible pieces of evidence since the witness did not depose to his source of history or how he came about the stories and the dates. See also the cases of Idesoh & Anor. vs. Ademehinti & Ors. (1997) LPELR-1421 (SC); Alli & Ar. vs. Alesinloye (2000) LPELR-427 (SC); Awoyoolu & Ar. vs. Aro & Ar.

(2006) LPELR-665 (SC) and Okoko vs. Dakolo (2006) LPELR-2461 (SC).
Furthermore, there is nothing on record to show that the story of the Appellant as PW1 about the events that took place from 1841 (long before his own parents were born) was handed down to him from any past generation; or that he was told by any person whether living or dead; his testimony does not qualify as evidence of traditional history as defined by the Supreme Court in the case of Salisu vs. Mobolaji (Supra).

PW2 conceded under cross-examination that he was born on the 3rd August 1967 at Page 272 of the printed record thus:
“In 1946, the then Lamido of Adamawa, Lamido Ahmadu asked the late Alhaji Bobboi Galadima an uncle to the late Waziri to give him the house as a loan to give his singer late Hajiya Patu Digol and the late Alhaji Bobboi Galadima consulted with the late Waziri and they agreed to give the house on loan basis to the then Lamido to give it to late Hajiya Patu Digol”.

The testimony of PW 2 lacked evidential value because having conceded under cross-examination that he was born on the 3rd August 1967, his testimony cannot qualify as evidence

of traditional history in so far as he failed to disclose the source of his story of what happened in 1946 long before he was born in 1967. PW 3 testified that he does not know if it was Lamido Ahmadu who gave the house to Hajiya Patu Digol and that he could not give the history as to who gave the house to Hajiya Patu Digol in the following words under cross-examination at Page 274 of the Printed record:-
“I do not know if it was Late Lamido Ahmadu that gave the house to late Hajiya Patu Digol because I am not old enough to know that. I cannot give history of who gave the house to late Hajiya Patu Digol”.

Under cross-examination, PW 4 contradicted himself by stating in one breath that it was his father who gave the house to Patu Digol and in another breath that it was Lamido Ahmadu who put Patu Digol in possession through his father and eventually conceding that he does not know who gave the house to Patu Digol in the following words at Page 275 of the Printed record:
“Yes. It is what my late father told me. What is contained in paragraph 16 of my written statement on oath is true. Whoever claims that my late father was

not the one that gave late Hajiya Patu Digol must be telling lies. Late Lamido Ahmadu asked my late father’s consent to give the house in dispute to Late Hajiya Patu Digol before the late Lamido Ahmadu gave the house to Late Hajiya Patu Digol. That late Lamido Ahmadu gave the house to Late Hajiya Patu Digol through our father. I do not know who physically went to give the house to late Hajiya Patu Digol”.

From the above-quoted testimonies of the Appellant’s witnesses, he has failed to offer legally acceptable and credible evidence in proof of his claim. From the pleadings of the parties, the dispute between the parties revolve around who gave the two room apartment to Hajiya Patu Digol and the circumstances of the grant. Any contradiction or inconsistency in the pleadings of the Appellant/Plaintiff and testimonies of his witnesses as to who gave the said house to Hajiya Patu Digol, is a major and not minor contradiction that will affect his case negatively. It therefore follows that the contradictions and inconsistencies in the pleadings and testimonies of the Appellant’s/Plaintiff’s witnesses as to who gave the two-roomed

apartment to Hajiya Patu Digol are very material contradictions that are fatal to his case. As to the submissions of the Appellant’s Counsel in Paragraphs 4.28 – 4.32 of the Appellant’s brief of argument that: “The Appellant’s witnesses are unanimous in their evidence that the house was given to Patu Digol on temporary basis….”, the law is settled that address of Counsel cannot take the place of evidence when there is no evidence to support the facts on which the submission is based – Nathaniel Oyekan & Ors vs. Amos Akinrinwa & Ors. (1996) 40/41 LRCN 1387 Ratio 2; Strabag Construction Co. Nig. Ltd. vs. Ogarekpe (1991) 1 NWLR (Pt. 170) 733.
The Appellant/Plaintiff did not plead and indeed, none of his witnesses gave evidence that late Hajiya Patu Digol was informed by Lamido Ahmadu, Bobboi Galadima, Mohammed Abba (late Waziri) or any other person whomsoever whether at the time when the two-room building was given to her in 1946 or at any other time during the 47 years within which she developed the disputed house and resided therein, that the house that was given to her was on temporary basis that

was going to be recovered from her or her heirs. Courts of law are bound to decide cases on the basis of evidence and not on the basis of submissions of Counsel on facts in respect of which there is no evidence on record.

The lower Court was therefore right when it dismissed the claims of the Appellant/Plaintiff. The Appeal is unmeritorious and is accordingly dismissed. The Judgment of the lower Court delivered on 21st January, 2019 is hereby affirmed. Fifty Thousand Naira (N50,000.00k) cost is hereby awarded in favour of the Respondents and against the Appellants.

CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances:

Hussaini G. Maidawa Esq., with him, H. Omeh Esq., T. J. Ojo Esq. and F. A. Henney Esq. For Appellant(s)

Roland C. Emem Esq. For Respondent(s)