ZAKARIYA v. MOHAMMED
(2022)LCN/16658(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 23, 2022
CA/A/200/2015
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
HABILA ZAKARIYA (Substituted By Order Of Court Dated 4/3/2020) APPELANT(S)
And
MALLAM YUSUF JINJIN MOHAMMED RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
My Lords, issue two for determination, encompassing the Appellant’s issue three and Respondent’s issue two, deals with one of the most important and crucial aspect and or requirement of the law in an action for declaration of title to land namely; a party who seeks a declaration of title to land must first prove with certainty the identity, dimension and features of the land over which he claims or counter-claims for a declaration of title to, failing which his claim or counter-claim must be dismissed without much ado! Thus, the first duty on a Claimant, or a Counter – Claimant as the case may be, seeking a declaration of title to land is to establish with exactness the description, area, size and location of the land over which he seeks a declaration of title. However, he is relieved of this duty once the identity of the land in dispute is not put in issue by the Defendant or where the land in dispute is very well known to the parties. See Atanda V. Iliasu (2013) 18 WRN 1. See also Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182. See also Makanjuola V. Balogun (1989) 3 NWLR (Pt. 108) 122, Echenim Ofume V. Isaac Ngbeke (1994) 4 NWLR (Pt. 341) 746 and Olosunde V. Oladele (1991) 4 NWLR (Pt. 188) 113. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW WHERE PARTIES TO A SUIT FOR DECLARATION OF TITLE TO LAND, GIVES DIFFERNET NAMES TO THE LAND IN DISPUTE
In law, despite the tendency of parties to call land in dispute by different names or description, the Courts have always seen through such contrivances to determine the real issues in controversy between the parties, which is as between the Appellant on the one hand and the Respondent on the other hand, who is the actual person entitled to be declared the owner of the land in dispute. See Ogun V. Akinyelu (2004) 18 NWLR (Pt. 905) 368, where the Supreme Court had stated inter alia thus:
“The fact the witnesses in a suit for declaration of title to land gave different names to the boundary men of a land in dispute or gave different names to the parcels of land surrounding the land in dispute is of no significance unless it is shown that the witnesses are not referring to the same land.”
See also Kwewum V. Eyi (2015) LPELR – 25633 (CA) per Georgewill JCA. See also Gabdo V. Usman (2015) LPELR – 25678 (CA) per Georgewill JCA, Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360, Ogun V. Akinyelu (2004) 18 NWLR (Pt. 905) 368 and Osho V. Ape (1998)8 NWLR (Pt. 562) 449. PER GEORGEWILL, J.C.A.
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
In considering this crucial issue on the pleadings and evidence led by the parties and the findings already made thereon by the Court below, with which the Appellant is aggrieved, I bear in mind that it is now well accepted that in a claim for declaration of title, a Claimant as well as a Defendant/Counter-Claimant claiming declaration of title to land has open to him five ways by which to prove his title to the land in dispute. These five ways, which have crystallized over the years in a long line of decided cases as are replete in our law reports and each of which if proved by credible and cogent evidence is sufficient to ground title in the party who so claims, are namely:
A. Evidence of traditional history of title;
B. By production of title documents;
C. By acts of ownership;
D. By acts of possession long enough to warrant the person in possession as the owner;
E. By acts of possession of adjoining or adjacent land in such a way as would make it probable that the owner of the adjoining or adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612, Ojah V. Eviawure (2000) FWLR (Pt. 57) 163, Okore V. Onuyejuwa (2001) FWLR (Pt. 41) 1820. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW WHERE A PARTY RELIES ON A PARTICULAR ROOT OF TITLE
Thus, in law once a party relies on a particular root of title, it is that root of title that must first be proved before any other acts may rightly be regarded as acts of ownership and or possession. In other words, where a Claimant had relied, as in the instant case the Appellant, on evidence of traditional history of title, and a counter – claimant, as in the instant case, the Respondent, on first settlement, each of them was under a duty to prove the particular root of title relied upon before he can rely on acts of ownership and possession. It follows therefore, in the event of failure of either of the parties to prove the primary root of title pleaded, such a party cannot turn round to rely merely on acts of ownership and possession, no matter how long. The claim to title of such a party, in such circumstances is liable to be dismissed for lacking in merit. However, neither a Claimant nor a counter-claimant for declaration of title to land need rely on more than one of the five methods since any of them proved sufficiently to the satisfaction of the Court would suffice. In Ezukwu V. Ukachukwu (2000) 1 NWLR (Pt. 642) 657 AT p. 679, it was reiterated inter alia thus:
“A Claimant of title to land, of course, need not rely on more than one of the five methods. No, where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails, the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root title needs must be, firstly established before the exercise of the rights of ownership may exercisable….”
See also Idundun V. Okumagba (1976) 6 – 10 SC 48, Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426, Paul Lawani V. Mrs. Risikatu Grillo & Ors (2018) LPELR – 44912(CA) per Georgewill JCA, Nwokorobia V. Nwogu & Ors (2008) All FWLR (Pt. 476) 1868, Nathan Igbudu & Ors V. Mr. Godspower Othe (2021) LPELR – 55559 (CA) per Georgewill JCA.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Niger State, Coram: Idris M. J. Evuti J., in Suit No. NSHC/MN/215/2013: Zakariya Shagabe Wakili V. Mallam Yusuf Jinjin Mohammed delivered on 16/12/2014, in which the claim of the Appellant as Claimant for declaration of title to the land in dispute against the Respondent as Defendant was dismissed, while the counter – claim of the Respondent for declaration of title to the land in dispute against the Appellant was granted.
The Appellant was peeved by the said judgment and had appealed against it vide a Notice of Appeal filed on 26/2/2015 on five grounds of appeal. See pages 112 – 115 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 24/4/2015. With the leave of this Court the Appellant filed an Amended Notice of Appeal on six grounds of appeal on 30/4/2020 but was deemed as properly filed on 27/9/2021. The Appellant’s Amended brief was filed on 30/4/2020 but was deemed as properly filed on 27/9/2021. The Respondent’s amended brief was filed on 9/2/2022 but was deemed as properly filed on 10/2/2022.
At the hearing of the appeal on 10/2/2022, 27/1/2022, Phillip K. Emmanuel Esq., learned counsel for the Appellant adopted the Appellant’s amended brief as his arguments in support of the appeal and urged the Court to allow the appeal. On his part, Ekeh Jeremiah Esq., learned counsel for the Respondent adopted the Respondent’s amended brief as his arguments against the appeal and urged the Court to dismiss the appeal.
By a Writ of Summons and Statement of Claim filed on 27/11/2013 before the Court below, the Appellant as Claimant claimed against the Respondent as Defendant, the following reliefs, to wit:
1. A Declaration that the plaintiff is entitled to the Customary Right of Occupancy over the disputed land clearly described at paragraph 6 of the statement of claim.
2. An Order of perpetual injunction restraining the defendant, his agents, prívies, successors-in-title, personal representatives or any other person claiming through him from interfering with the plaintiff’s quiet and peaceful enjoyment of the disputed land.
3. General damages of N1000, 000. 00 only against the defendant.
4. The Cost of litigation put at N400, 000. 00 only.
5. Any other order (s) the Honourable Court may deem fit to make in the circumstances of the suit. See pages 1 – 5 of the Record of Appeal.
Upon service, the Respondent by his Statement of Defence and counter – claim filed on 27/1/2014 claimed against the Appellant the following reliefs, to wit:
1. An Order for declaration of the title to farmland which is briefly described in paragraph 3(f) of the statement of defence.
2. An Order of perpetual injunction restraining the plaintiff, his agent, successors in title, privies and anybody acting on his behalf from further act of trespass or interfering with the defendant right over the farmland.
3. An Order for sum of N500, 000 as damages.
4. And Cost of litigation. See pages 27 – 29 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the respective parties before the Court below as can be gleaned from the averments in their pleadings and evidence led thereon as in the Record of Appeal was that on the one hand, the Appellant as Claimant claimed title to the land in dispute by evidence of traditional history of title through his grandfather, who he averred founded the land in dispute and upon whose death it devolved on his father and subsequently devolved on him in an unbroken line of successors. On the other hand, the Respondent as Defendant/Counter-Claimant claimed title to the land in dispute by inheritance through his father, to whom he averred the land in dispute was given to deforest by one Gunduman Tunga Mallam and over which land he has been in possession and farming thereon. See pages 1 – 5, 27 – 29, 45 – 46, 56 – 64 and 65 – 69 of the Record of Appeal.
The parties filed and exchanged pleadings and the matter proceeded to trial. The Appellant as Clamant called five witnesses. PW1, was one Joshua Auta. PW2 was one Halima Doma. PW3 was one Usman Kure. PW4 was one Garba Sidi. The Appellant’s father, who was the Claimant but now deceased, testified as PW5 and closed his case. The Respondent as Defendant/Counter-Claimant also called five witnesses. DW1 was one Alhaji Ado Sarkin Zango. DW2 was one Wakili Boyi. DW3 was one Garba Kure. DW4 was one Yakubu Auta. The Respondent testified for himself as DW5 and closed his defence/counter – claim. Subsequently, the parties filed and exchanged their final written addresses, which were duly adopted by them on 15/9/2014 and on 16/12/2014, the Court below delivered its judgment, in which the claim of the Appellant as Claimant for declaration of title to the land in dispute against the Respondent as Defendant was dismissed, while the counter – claim of the Respondent for declaration of title to the land in dispute against the Appellant was granted See pages 95 – 105 and 112 – 115 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, six issues were distilled as arising for determination from the six grounds of appeal, namely:
1. Whether the learned trial judge properly evaluated the evidence before the court on an imaginary scale as to know where it tilts? (Distilled from Ground 1)
2. As between the Appellant and Respondent, whose traditional history satisfied the legal requirement in law and is more cogent, convincing and conclusive in nature as to entitle him to the reliefs sought? (Distilled from Ground 2)
3. Whether the Respondent had discharged the burden of proving the precise and definite identity of the land in dispute? (Distilled from Ground)
4. Whether the learned trial judge had the jurisdiction in law to predicate his decision on evidence not pleaded? (Distilled from Ground 4)
5. Whether the delay in delivering the judgment within the three months constitutionally stipulated period had affected the judge’s appreciation of the evidence thereby occasioning a miscarriage of justice? (Distilled from Ground 5)
6. Whether the award of general damages of N200,000. 00 in the absence of materials placed before the Court is proper and justified in law. (Distilled from Ground 6).
In the Respondent’s brief, four issues were distilled as arising for determination in this appeal, namely:
1. Whether the learned trial judge properly evaluated the evidence before him before rejecting the evidence of traditional history relied upon by the appellant?
2. Whether the boundary of the land in dispute can be said to be certain among the parties before the lower court?
3. Whether the learned trial Judge predicated his decision on evidence not pleaded?
4. Whether the evidence of the parties at the lower court on preponderance of evidence and balance of probability has been affected by the absence of judgment within 90 days.”
I have taken time to consider the averments in the pleadings and evidence led thereon by the parties before the Court below as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below and I am of the view that the various issues arising for determination in this appeal as formulated in the Appellant’s brief and the Respondent’s brief can be harmonised into three issues, a consideration of which, in my view, would invariably involve a consideration of all the Appellant’s six issue as well as the Respondent’s four issues. The three apt issues for determination therefore, are as follows:
1. Was the Judgment of the Court below delivered on 16/12/2014 invalid by reason of its having been delivered outside the 90 days as prescribed by law?
2. Was the identity of the land in dispute put in issue by the parties?
3. Who as between the Appellant as Claimant and the Respondent as Counter – Claimant proved and was entitled to declaration of title to the land in dispute?
ISSUE ONE
Was the judgment of the Court below delivered on 16/12/2014 invalid by reason of its having been delivered outside the 90 days as prescribed by law?
APPELLANT’S COUNSEL SUBMISSIONS
On his issue five, learned counsel for the Appellant had submitted that both parties adopted their written final addresses on 15/9/2014 but the judgment of the Court below was delivered only on 16/12/2014 outside the 90 days period as prescribed by law and in which it analysed some pieces of evidence contrary to the way it is borne on record during the trial and which inevitably led the Court below to reach wrong conclusions and contended the holding that Bawa Hawanniya settled on the land and gave birth to the Appellant’s father Wakili Bajego over 65 years ago was contrary to the facts as pleaded and led in evidence that it was the Appellant and not his father that was born 65 years ago amongst many other erroneous analysis and findings as a result of the delay in the delivery of the judgment and urged the Court to hold that by reason of the several lapses, the delay in delivering of the judgment had affected the Court’s below appreciation of the evidence presented and consequently occasioned a miscarriage of justice to the Appellant and to allow the appeal and set aside the judgment of the Court below. Counsel referred to S. 294 (5) of the Constitution of Federal Republic of Nigeria 1999 (as Amended), and relied on Egesimba V. Onuzurike (2002) 15 NWLR (Pt. 791) 466; BCC Plc V. Sky Inspection (Nig) Ltd (2002) 17 NWLR (Pt. 795) 86, Mikai Ilu V. State (2001) 5 WRN 74, Total Nig. Plc V. New Cargo Handling Co. (2015) 17 NWLR (Pt. 1489)1.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue four, learned counsel for the Respondent had submitted that the Court properly appreciated the evidence and analyzed all the evidence as led by the parties and arrived at very correct findings of facts and conclusions flowing from the evidence and contended that the delivery of the judgment of the Court below on 16/12/2014, which was just a single day outside the 90 days as prescribed by law, has not been shown by the Appellant to have occasioned any miscarriage of justice and urged the Court to hold that in law mere delivery of judgment outside of the 90 days period alone is not enough to render the judgment a nullity unless it is shown that the delay in the delivery of judgment had occasioned a miscarriage of justice to the Appellant and to dismiss the appeal for lacking in merit. Counsel referred to Section 294 (6) of the Constitution of Nigeria 1999 (as Amended) and relied on Owoyemi V. Adekoya (2003) 12 SC (Pt. 1)1.
RESOLUTION OF ISSUE ONE
My Lords, in an appeal challenging the validity of the judgment of a Court by reason of it being delivered after the lapse of time as Constitutionally prescribed, the crux of such a challenge is not whether or not there was delay, whether inordinate or not, in the delivery of the judgment of the Court but rather whether or not the delay had occasioned a miscarriage of justice.
Now, what would amount to inordinate delay may or would vary from case to case and therefore, the categories of what may constitute inordinate delay can never be closed with any sense finality but would depend on the peculiar circumstances of each case. The parties are ad idem as to when the final addresses were adopted by their respective counsel before the Court below on 15/9/2014. There is also no dispute as to the date of the delivery of the judgment of the Court below on 16/12/2014, which was just one day outside the 90 days period as prescribed by law for the delivery of the said judgment. See Section 294(1) of the Constitution of Federal Republic of Nigeria 1999 (as Amended).
So, in the circumstances of this case, and considering the findings and conclusions reached in the judgment appealed against, did the just one day delay in the delivery of the judgment of the Court below amounted to inordinate delay and if yes did it also occasioned any miscarriage of justice? But first what is the position of the law on delivery of judgment outside of the 90 days as prescribed by law or delivery of judgment by the Court below? In Okafor V. Swan Ltd (2014) LPELR-24147(CA), this Court had per Georgewill JCA., stated inter alia thus:
“Now, to render a judgment delivered outside the three months period as limited by the Constitution of this Country a nullity, there must be shown, by the Appellant being the party so contending, to have been a miscarriage of justice by reason of such inordinate delay and lapse of time in the date of delivery of the judgment….”
Be the above as it may, it is now well accepted in law that an outcome in a judicial proceeding that is grossly or irredeemably unfair would amount to miscarriage of justice if proved or shown by a party alleging the nullity of a judgment delivered much outside the 90 days limitation period as enshrined in the Constitution of this country. See The State V. Godfrey Ajie (2000) 7 SCNJ 1 AT p.11. See also Total Nig. Ltd. V. Wilfred Nwako (1978) 5 SC 1 and Aigbobahi V. Chief Aifuwa (2006) 2 SCNJ 61 AT pp 73 – 74.
Now, from the facts and circumstances of this appeal, it seems clear to me that what the Appellant had relied principally upon in the judgment appealed against as demonstrative of the loss of touch and mental alertness of the Court below are, in my view, merely matters of evaluation of evidence, which he felt were not properly carried out by the Court below and findings and decisions reached which he believes strongly do not flow from the evidence led by the parties and for which he has invited this Court to intervene to re-evaluate the evidence as in the Record of Appeal and arrive at proper findings of facts and make a just determination of the real crux of the issues between the parties, which is as between the Appellant and the Respondent who proved his title to the land in dispute in line with his pleadings and evidence led before the Court below.
It is the law that evaluation of evidence and ascription of probative value to evidence is primarily the duty of a trial Court. However, where it is shown in an appeal that the Trial Court had abdicated its primary duty by failing to evaluate or by not properly evaluating the evidence before it, it is then and only then an appellate Court can intervene to undertake that exercise, generally if the assessment of the evidence would not involve the demeanour or credibility of witnesses. See UAC (Nig) Plc V. Akinyele (2012) 15 NWLR (Pt.1322) 1 AT pp. 15 – 16. See also Teriba V. Adeyemo (2010) 13 NWLR (Pt. 1211) 242 AT Pp. 258 – 259.
Honesty, these are not issues ordinarily covered under an appeal challenging the validity of a judgment on the ground of inordinate delay in its delivery that has occasioned a miscarriage of justice, and for which the resultant effect, if made out, is a nullification of the judgment as well as the entire proceedings. In this appeal, it would appear that the Appellant whilst in one breadth is contending under issue one, which is Appellant’s issue five, that the judgment of the Court below delivered outside the three months period as prescribed by law is a nullity, yet he is in another breadth contending and calling on this Court to intervene and carry out proper evaluation and make proper findings of facts and enter judgment on the Appellant’s claims before the Court below against the Respondent.
In law, these are entirely two different and mutually – excusive issues, with one if successful results into a nullification of the judgment appealed against, and the other if successful results into a re-evaluation of the evidence and setting aside all wrong findings of facts and reaching correct decisions as dictated by the justice of the case on the proved evidence as in the Record of Appeal. Thus, an Appellant cannot use a challenge to the validity of a judgment by reason of its having been delivered outside the three months as prescribed by law and therefore, a nullity, to also canvass a re-evaluation of the evidence by the appellate for the purpose of setting aside perverse findings of fact and making proper and correct finding of facts with a view to reversing the, already null judgment, in favour of entering judgment on the merit for the Appellant.
Thus, the onus was on the Appellant to demonstrably show that there was a miscarriage of justice by the breach of Section 294(1) of the Constitution of Federal Republic of Nigeria 1999 (as Amended) by the delivery of the judgment of the Court below in just one day outside of the 90 days as prescribed by law. See Imoh & Anor V. EFCC & Ors (2018) LPELR-46579(CA), where this Court had per Georgewill JCA., stated inter alia thus:
“The law is well settled that for judgment of a Court of law established under the Constitution of Nigeria 1999 (as amended) to be rendered invalid pursuant to the provisions of Section 294 (1) of the said Constitution by reason of delay in its delivery outside the prescribed 90 days period, it must be shown by the party complaining, generally the Appellant of course, that the delay had occasioned a miscarriage of justice to him, failing which the judgment stands and remains valid.”
Now, by Section 294 Subsections (1) and (5) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
294(1): “Every Court established under the Constitution shall deliver the decision in writing not later than ninety (90) days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
294 (5): “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal of review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
In Dennis Akoma & Anor V. Obi Osenwokwu & Ors (2014) LPELR – 22885 (SC) AT pp. 40 – 41, the Supreme Court per Onnoghen JSC (as he then was but later CJN) had pronounced on the legal effect of Section 294 (1) and (5) of the Constitution of Nigeria 1999 (as amended) inter alia thus:
“The question is; what is the consequence(s) of the failure of the lower Court, in the circumstances of this case, to deliver its decision within the ninety days of the final addresses of counsel? The answer is that the judgment/decision/order is valid except an Appellant can satisfy the Court that the non-delivery of the judgment within the stipulated time has occasioned a miscarriage of justice to him.”
See also Owoyemi V. Adekoya (2003) 18 NWLR (Pt. 852) 307.
My Lords, having taken time to consider the totality of the evidence before the Court below and the judgment of the Court below appealed against, it does appear to me that the Appellant was torn between and really not sure whether the decision was simply not correct or that it had indeed occasioned any miscarriage of justice to him by reason of the one day that lapsed after the expiration of the 90 days period before it was delivered. In law, a judgment may be correct on the law but yet turn out to occasion a miscarriage of justice to the complaining party by reason of the long delay in its delivery and the likelihood of the Court not keeping in focus the evidence as led by the parties through their witnesses.
Having looked at the alleged lapses, which in reality are findings which the Appellant is thoroughly dissatisfied with and or, in my findings, are matters which did not in any way go to the real crux of the issues or disputes between the parties as to the ownership of the land in dispute, and upon an anxious consideration of the totality of the evidence and submissions of the parties in the light of the findings and decisions in the judgment appealed against, I hold firmly that Appellant failed to show, as required of him by law, any miscarriage of justice occasioned to him by the failure of the Court below to deliver its judgment, now appealed against, within the 90 days period as prescribed by law. It is not enough merely to allege a delay and miscarriage of justice the Appellant must go further to show how the delay of the just one ‘short day’, in my view, had caused him or occasioned a miscarriage of justice to him. See Unilorin V. Akinola (2014) LPELR – 23275(SC), where the Supreme Court succinctly defined what in law amounts to a miscarriage of justice inter alia thus:
“The law is well settled that what constitutes miscarriage of justice varies from case to case depending on the facts and circumstances. To reach the conclusion that a miscarriage of justice occurred, it does not require a finding that a different result necessarily would have been reached in the proceedings. It is enough if what happened is not justice according to law.”
In law therefore, the mere use of the phrase ‘miscarriage of justice’ alone without more or proof is not a talisman by which a judgment of a Court of law is made or rendered invalid just by the mention of the phrase alone by an Appellant. The law does not work like that as there must be proof of miscarriage of justice to render an otherwise valid judgment of a trial Court invalid on appeal by virtue of Section 294(1) of the Constitution of Nigeria 1999 (as amended). See Section 294 (5) of the Constitution of Nigeria 1999 (as amended).
In Dibiamaka & Ors V. Osakwe & Anor (1989) 3 NWLR (Pt. 107) 101 AT Pp. 114 – 115, the judgment complained of was delivered after a delay of nine months, unlike the delay of mere one day in the instant appeal, yet the nine months delay was not by itself alone capable of rendering the affected judgment invalid. The Supreme Court per Oputa JSC., (God bless his soul) had succinctly pronounced inter alia thus:
“The law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
Again, in Ogundele V. Fasu (1999) 12 NWLR (Pt.632) 662, the Supreme Court per Iguh, JSC., had emphatically restated the succinct position of the law inter alia thus:
“It is clear that by the introduction of Sub-section (4) to Section 258 of the 1979 Constitution, (now Section 294 (1) and (5) of the 1999 Constitution (as amended) the non-delivery by all Courts established under the Constitution of their decision in writing within a period of three months after the conclusion of evidence and final addresses in a cause or matter does not per se now render such a decision or judgment invalid and null and void. It shall only be treated as a nullity where an appellate Court in the exercise of its jurisdiction over such a decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”
My Lords, I have already found that there was no miscarriage of justice occasioned by the just one day delay in the delivery of the judgment of the Court below. In my further finding therefore, there was neither any inordinate delay in just the one day delay nor any miscarriage of justice occasioned by the mere trifles relied upon by the Appellant against the judgment of the Court below under issue one, which is Appellant’s issue five for determination.
I thought I should pause here to state that this ground of appeal should be the last resort only by an Appellant who is double sure that his appeal on the merit is baseless or that he has not the least of chances of succeeding on the substantive issues in the appeal, except perhaps for just the purpose of drawing the attention of the NJC against the affected judge. See Section 294 (6) of the Constitution of Nigeria 1999 (as Amended). See also Owoyemi V. Adekoya (2003) 12 SC (Pt. 1)1.
My Lords, the above is so because an otherwise successful appeal on the merit on the issues determined by the Court below could still end up as a pyric victory, if this ground of appeal succeeds and thereby resulting into a nullification of the judgment of the Court below, notwithstanding the success of the appeal on the substantive issues involved in the appeal.
In the light of all I have said and found as above, issue one, which is Appellant’s issue five and Respondent’s issue four for determination, is hereby resolved against the Appellant in favour of the Respondent.
ISSUE TWO
Was the identity of the land in dispute put in issue by the parties?
APPELLANT’S COUNSEL SUBMISSIONS
On his issue three, learned counsel for the Appellant had submitted that the Court below was in grave error when it held that the identity of the land in dispute was very well known to the Respondent and his witnesses if it is not known to the Appellant who was claiming declaration of title to the said land in dispute and contended that on the evidence led by the parties, in which no survey plan was tendered, revealing material contradictions as to the identity of the land in dispute and urged the Court to hold that on the face of the material contradictions and in the absence of any visit to the locus in quo, the Court below was wrong when it held that the Respondent satisfactorily discharged the burden of proving the precise identity of the land in dispute and to allow the appeal, set aside the perverse judgment of the Court below and dismiss the Counter – Claim of the Respondent against the Appellant. Counsel relied on Ukaegbu V. Nwololo (2009) 1 SCNJ 49 AT p. 54, Adeniran V. Ashabi (2004) 2 NWLR (PT.857) 375.
It was also submitted that in law where parties adduce conflicting evidence as to the identity of the land in dispute, such conflict can be best resolved by the Court through a visit to the locus in quo since the purpose of visiting locus in quo is to clear any doubt in the mind of the Court and contended that on the face of the material contradictions as to the identity of the land in dispute and in the absence of both survey plan and visit to the locus in quo, the Court below was wrong to hold that the Respondent proved satisfactorily the identity of the land in dispute over which it granted title to the Respondent and urged the Court to hold that this failure had occasioned a miscarriage of justice to the Appellant and to allow the appeal, set aside the judgment of the Court below and dismiss the Counter – Claim of the Respondent against the Appellant. Counsel relied on E.Okwara V. D. Okwara (1997) NWLR (Pt. 527) 160 AT P. 167, Ige V. Adegbola (1998) 10 NWLR (Pt. 571) 662, Otanma V. Youdubagha (2006) 2 NWLR (Pt. 964) 337.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, learned counsel for the Respondent had submitted that although in law a Claimant or any party in general who seeks a declaration of title to land in dispute must necessarily identify the land which he claims and upon failure to do so his claim may be dismissed but where the area of land in dispute is well known to both sides, the issue of proof of identify of boundaries of the land does not arise at all and contended that by the averments in the pleadings of the parties the description of a land in dispute could not have been more precise and delineating than as described by the parties and urged the Court to hold that there was no difficulty at all in identifying the locations, features and dimension of the land in dispute from the pleadings and evidence of the parties and their witnesses and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Ogun V. Akinyelu (2004) 18 NWLR (Pt. 905) 368 and Osho V. Ape (1998)8 NWLR (Pt. 562) 449.
It was further submitted that although it is true that under cross-examination the witnesses to the Respondent in some instances changed the positions of the names of the boundaries as pleaded in the Statement of Defense and Counter – Claim, they were minor discrepancies since the names pleaded and testified to had remained constant, including names such as ‘Soregbe via Tunga Mallam, Shigna Stream and Sorogbe’s Road’ and contended that in the entirety of the evidence led no new boundary was introduced by any of the witnesses for the Respondent and urged the Court to hold that minor contradictions, which does not affect the substance of the boundary to the land in dispute, would go to no issue since in law regimental precision in the testimony of witnesses would be suspicious and therefore, some minor contradictions are expected in witnesses testimonies in any trial so long as they do not affect the substance of the case of the party and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on Ogun V. Akinyelu (2004) 18 NWLR (Pt. 905) 368.
RESOLUTION OF ISSUE TWO
My Lords, issue two for determination, encompassing the Appellant’s issue three and Respondent’s issue two, deals with one of the most important and crucial aspect and or requirement of the law in an action for declaration of title to land namely; a party who seeks a declaration of title to land must first prove with certainty the identity, dimension and features of the land over which he claims or counter-claims for a declaration of title to, failing which his claim or counter-claim must be dismissed without much ado! Thus, the first duty on a Claimant, or a Counter – Claimant as the case may be, seeking a declaration of title to land is to establish with exactness the description, area, size and location of the land over which he seeks a declaration of title. However, he is relieved of this duty once the identity of the land in dispute is not put in issue by the Defendant or where the land in dispute is very well known to the parties. See Atanda V. Iliasu (2013) 18 WRN 1. See also Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182. See also Makanjuola V. Balogun (1989) 3 NWLR (Pt. 108) 122, Echenim Ofume V. Isaac Ngbeke (1994) 4 NWLR (Pt. 341) 746 and Olosunde V. Oladele (1991) 4 NWLR (Pt. 188) 113.
Now, on the pleadings of the parties, was the identity of the land in dispute put in issue either by the Appellant and or by the Respondent? In law, the issue of identity of land in dispute is a function of pleadings and usually, it is a Defendant that by his pleadings puts the identity of land in dispute in issue. Thus, where a Defendant does not join any issue with a Claimant on the land in dispute and also where the land in dispute is very well known to the parties, then the issue of identity of the land in dispute does not arise and therefore, mere cross-examination and contradictions in evidence elicited under cross-examination but not founded on any pleaded facts would not only go to no issue but would ipso facto also not amount to raising any issue of identity of the land in dispute. See John Nyomi & Anor V. Engr. Callistus N. Njoku & Anor (2021) LPELR – 55558 (CA).
On the part of the Appellant as Claimant before the Court below, it was averred in paragraph 6 of the Statement of Claim filed on 27/11/2013, thus:
“The Plaintiff states that the disputed land which is situate and lying at Soregbe via Tunga Mallam along Minna – Lapai Road is bounded from the East with Jejigo’s farmland; from the West it’s bounded with Shigan stream; from the North with same Shigan stream and finally from the South with Bature Danladi’s farmland.” See page 3 of the Record of Appeal.
On the part of the Respondent as Defendant/Counter-Claimant before the Court below, it was averred in paragraph 3(f) of the Statement of Defense/counter-claim filed on 27/1/2014, thus:
“The Defendant avers that his farmland which has been in his possession enjoying an undisturbed right of ownership, share boundaries with the following:- By the East is bounded with Mallam Kawu’s farm; By the West is bounded with a stream called Shigna; By the South is bounded with Sarkin Zango’s farm; By the North is bounded with Sorogbe’s Road.” See page 28 of the Record of Appeal.
My Lords, I have taken time to review averments in the pleadings of the parties and considered the evidence led through their witnesses, as it appears to me, and I so hold that, not only is the identity, location and features of the land in dispute very well known the parties but it was also very well known to the numerous witnesses, who testified on their behalf. It therefore seems very clear to me and I so find that the land in dispute was very well known to the parties, who were not in any doubt as to the identity and description of the land in dispute. It follows and indeed that there was no issue at all between the parties as to the identity of the land in dispute.
In law, despite the tendency of parties to call land in dispute by different names or description, the Courts have always seen through such contrivances to determine the real issues in controversy between the parties, which is as between the Appellant on the one hand and the Respondent on the other hand, who is the actual person entitled to be declared the owner of the land in dispute. See Ogun V. Akinyelu (2004) 18 NWLR (Pt. 905) 368, where the Supreme Court had stated inter alia thus:
“The fact the witnesses in a suit for declaration of title to land gave different names to the boundary men of a land in dispute or gave different names to the parcels of land surrounding the land in dispute is of no significance unless it is shown that the witnesses are not referring to the same land.”
See also Kwewum V. Eyi (2015) LPELR – 25633 (CA) per Georgewill JCA. See also Gabdo V. Usman (2015) LPELR – 25678 (CA) per Georgewill JCA, Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360, Ogun V. Akinyelu (2004) 18 NWLR (Pt. 905) 368 and Osho V. Ape (1998)8 NWLR (Pt. 562) 449.
It is possible, and it does frequently happen, that under the intense heat of cross-examination, discrepancies and or seeming contradictions may be elicited from witnesses but yet where such discrepancy and or contradiction is minor and thereby does not affect the substance of the case of the party, it would go to no issue. In law regimental precision in the testimony of witnesses would clearly and ordinarily be suspicious and sign of tutored witnesses. It follows therefore, some mere discrepancies and or minor contradictions are never out of place but are rather expected in witnesses’ testimonies in any trial so long as they do not affect the substance of the case of the party. See Ogun V. Akinyelu (2004) 18 NWLR (Pt. 905) 368, where the Supreme Court while defining what constitute material contradictions in a party’s case had stated inter alia thus:
“In the normal course of events, it is to be expected that witnesses may not always speak the same facts or events with equal and regimental accuracy. This is particularly so in a situation when they speak from fairly faded memory in respect of a matter they consider from slightly different perspectives. Passage of time fades human memory on matters of detail and human observation tend to differ. Consequently, absence of any contradiction in the evidence of witnesses will be totally unnatural. However, such contradictions must not be material to the extent that they cast serious doubts on the case presented as a whole by a party on whose behalf the witnesses testify or as to the reliability of such witnesses….”
My Lords, in law the identity of land in dispute is not put in issue merely in address of counsel, as the learned counsel for the Appellant, with respect to him, had sought to do in the Appellant’s brief, but rather it is put in issue on the averments in the pleadings of the parties and the subsequent evidence led thereon in support of the pleadings. See Kwewum V. Eyi (2015) LPELR – 25633(CA) per Georgewill JCA.
It is the light of the facts and circumstances in this appeal that the vehement contention by the learned counsel for the Appellant that the Respondent did not prove the identity of the land in dispute appears somewhat or somehow strange to me because ordinarily in a case for declaration of title to land, it is the Appellant who was the Claimant before the Court below that carried the initial burden of proving the identity of the land in dispute if it was put in issue by the Respondent. Thus, it is the Appellant who ordinarily would fail if the identity of the land over which he seeks declaration as well as an order of perpetual injunction against the Respondent was not proved with certainty as required of him by law. It is even stranger for the Appellant to by his own submissions, actually amounting to admission against self-interest, that either he does not know the identity of the land he was claiming declaration of title to land or that the land he was claiming is distinct from the one in the Respondent also counter-claimed for title to land. If that were to be so, then what was the claim of the Appellant against the Respondent all about if the land he is claiming is distinct from the land the Respondent counter-claimed?
No wonder, and I share in this sentiment, the Court below had pondered inter alia thus:
“On the identity of the land in dispute, I accept all the testimonies that are pointing to the subject matter of this litigation. If the Plaintiff is in doubt of the exact location, the Defendant who is in physical possession knows what he is counter-claiming.” See page 103 of the Record of Appeal. In the light of all I have stated and found as above therefore, I have no difficulty resolving issue two for determination, which is Appellant’s issue three and Respondent’s issue two, against the Appellant in favour of the Respondent. I hold firmly that the identity of the land, being not in issue, was proved by the parties.
ISSUE THREE
Who as between the Appellant as Claimant and the Respondent as Counter-Claimant proved and was entitled to declaration of title to the land in dispute?
APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that the Court below failed to critically consider the state of pleading in line with the evidence led thereon in that the Respondent had admitted, and parties are bound by their pleadings, the allegation by the Appellant that he was a stranger in Tugan Mallam where the land in dispute is situate having migrated from a place called Game to trespass into the land in dispute to farm without the consent of the Appellant’s father and contended that had the Court below properly appraised this and other relevant pieces of evidence it would not have come to the conclusion that as between the Appellant and the Respondent it was the Respondent who proved by evidence of traditional history of title his ownership of the land in dispute contrary to the unbroken chain in the line of succession of the Appellant from his grandfather, who founded the land, through his father and to him and urged the Court to so hold and to allow the appeal, set aside the perverse judgment of the Court below and grant the Appellant’s claim to title to the land in dispute against the Respondent and dismiss the Respondent’s counter-claim for lacking in merit. Counsel relied on Olagunyi V. Oyeniran (1996) 6 NWLR (Pt. 453) 127, Adedeji V. Oloso and Anor (2007) 145 LRCN 641 AT P. 643, Bunge V. Gov. Rivers State (2006) NWLR (Pt. 995) 573, Agbomeji V. Bakare (1998) 9 NWLR (PT.564) 1, C. N. Okpala & Sons Ltd V. Nigerian Brewery Plc (2018) 9 NWLR (Pt.1623) 16 AT p. 20; Ignobis Hotels Ltd. V. Bentec Steel Ltd (2015) 1 NWLR (Pt. 1414) 504 AT p. 512.
On his issue two, learned counsel for the Appellant had submitted that the Appellant’s plea of traditional history as to the founding of the land was never impeached even under cross-examination and contended that the Appellants’ witnesses also gave cogent, credible and satisfactory evidence of traditional history consistent with his pleadings as required by law unlike the Respondent and his witnesses which only shows that the Respondent only came into possession of the land in dispute, the North – Western side of which is Sorogbe, synonymous with the Appellant ancestor’s founders’ names of Hawanniya Bawa or Sorogbe, when the Appellant temporarily left it and relocated to Minna and urged the Court to hold that as between the Appellant and the Respondent it was the Appellant who by evidence of traditional history of title proved his ownership of the land in dispute and should have been so declared by the Court below since in law where two parties are claiming to be in possession, same is ascribed to the party with a better title and to allow the appeal, set aside the perverse judgment of the Court below and grant title to the land in dispute to the Appellant and dismiss the Respondent’s counter-claim for lacking in merit. Counsel relied on Akanbi V. Salawu (2003) FWLR (Pt. 178) 1066 AT P. 1074, Mogaji V. Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt. 7) 393, Kaburu Pada V. Woya Galadima & Anor (2018) 3 NWLR (Pt. 1607) 436 AT p. 443.
It was also submitted that in an action for declaration of title to land once a Claimant has proved by sufficient, cogent, credible, conclusive and satisfactory evidence his traditional history, he needs not show or prove exclusive possession as same can only be resorted to only where the evidence on traditional history is inconclusive or unavailing and contended that whilst the Appellant clearly pleaded and proved his evidence of traditional history of title to the land in dispute, the Respondent by his pleadings and evidence led thereon must have co-founded the land in dispute with his father or at least must have witnessed its founding upon their migration from Game to Gbasha of Tungan Mallam and did not therefore, rely and or prove any evidence of traditional history of title to the land in dispute and urged the Court to hold in law reliance on traditional history means the party relying on it or his witnesses were not there or present when the land was founded as it is a historical fact transmitted from generations to generations as proved by the Appellant and to allow the appeal, set aside the perverse judgment of the Court below and grant the claim of the Appellant whilst dismissing the counter-claim of the Respondent. Counsel referred to Black’s Law Dictionary Ninth Edition AT P. 640, and relied on Ohiaeri V. Akabeze (1992) 2 NWLR (Pt. 221) 32, Ewo & Ors V. Ani & Ors (2004) LPELR-1182 (SC), Elegushi V. Oseni (2005) 14 NWLR (Pt. 945) 349 AT p. 566, Irawo V. Adedokun (2005) 1, Dike & Ors V. Nzeka II & Ors (1986) LPELR – 945, Dazuwa & Ors V. Dzugu (2014) LPELR – 24166.
It was further submitted that it was incumbent on the Court below to focus or direct its evaluation of the evidence to the case of the parties as revealed by their pleadings, consider their evidence as well as the relevant laws, make specific findings of facts and to reach conclusions based on the issues and claims before it and finally give reasons for arriving at those decisions and contended that the Court below failed woefully to do any of these prerequisites for a valid judgment in the judgment appealed against and urged the Court to hold that the failure to do so has occasioned a miscarriage of justice to the Appellant and to allow the appeal, set aside the perverse judgment of the Court below and grant the claim of the Appellant whilst dismissing the counter-claim of the Respondent. Counsel relied on Ciroma V. Ali (1999) 2 NWLR (Pt. 590) 317 and Idakwo V. Nigerian Army (2004) 2 NWLR (Pt. 857) 249.
On his issue four, learned counsel for the Appellant had submitted that the Court below in solely relying on the evidence of DW2, one Wakili Boyi, in reaching his decision that the land in dispute belongs to the Respondent when the evidence of the DW2 that he loaned the farm land used by the Appellant and his father to them were nowhere pleaded by the Rand contended that in law such evidence given on facts not pleaded goes to no issue contrary to the sole reliance on such evidence by the Court below in reaching his conclusion and urged the Court to hold that the grave error of the Court below in relying on evidence given but not pleaded facts had occasioned a grave miscarriage of justice to the Appellant and to allow the appeal, expunge the offending evidence of DW2, set aside the perverse judgment and grant the Appellant’s claim and dismiss the Respondent’s counter-claim. Counsel relied on C. N. Okpala & Sons Ltd V. Nigerian Brewery Plc (2018) 9 NWLR (Pt.1623) 16 AT p. 20, Amobi V. Amobi (1996)8 NWLR (Pt. 469) 638, Olowofoyeku V. AG Oyo State (1996) 10 NWLR (Pt. 477) 190; Ito V. Ekpe (2000) 2 SC 98, Adeleke V. Iyanda (2001) 13 NWLR (Pt. 729) 1 and Adeniran V. Alao (2001) 18 NWLR (Pt.745)361.
On his issue six, learned counsel for the Appellant had submitted that in law, the discretion of any Court to award damages or cost must be exercised judicially and judiciously having regards to the peculiar circumstances of each case and contended that in the instant case the Respondent who is in possession of the land in dispute prior to the filing of the Suit, and shown by evidence to be a trespasser thereon, it was gravely inequitable for the Court below to award damages in favour of a trespasser who is the land of the Appellant without any colour and urged the Court to hold there is nothing on the Record of Appeal to justify the award and or the amount awarded by the Court below and to allow the appeal, set aside the award of damages and dismiss the claim of the Respondent. Counsel relied on Nigerian Societies of Engineers V. Ozah (2015) 6 NWLR (Pt. 1454) 76.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that the Court below properly evaluated the evidence before him before rejecting the evidence of traditional history relied upon by the Appellant and contended that in a claim for title to land to succeed a Claimant must rely and succeed on the strength of his case and urged the Court to hold that the Appellant as Claimant before the Court below failed to prove his claim for a declaration of title to the land in dispute as was rightly found by the Court below and to dismiss the appeal for lacking in merit and affirm the sound judgment of the Court below. Counsel relied on Tukuru V. Sabi (2005) 3 NWLR (pt.913) 544, Otanma V. Youdubagha (2006) 2 NWLR (Pt. 964) 337 and Itauma V. Akpe – Ime (2000) 7 SC (Pt. II) 24 AT pp. 30 – 31.
It was also submitted that in law where evidence of traditional history is relied upon in proof of declaration of title to land, the burden is on the Claimant to plead and prove: Who founded the land, how the land was founded and the particulars of intervening owner through whom he claims and contended that in the instant case the evidence presented by the Appellant and his witnesses were contradictory as to who founded the land in dispute in that their testimonies were filled with inconsistencies, contradictions and lies and urged the Court to hold that with the contradictory, incredible and outright lies given as evidence by the Appellant and his witnesses no reasonable Court would believe and rely on such contradicted and cooked up stories, even at variance with his pleadings, to grant title to the land in dispute to the Appellant declaratory reliefs sought by any party. We submit further that the appellant gave evidence at variance with the averments in his statement of claim.
It was further submitted that contrary to the contradicted and cooked up stories of the Appellant, the Respondent as Defendant/Counter-Claimant pleaded and led cogent and consistent evidence to prove that the land in dispute devolved on the Respondent from his father, one late Alhaji Kpatukpa, who was the first to deforested the virgin farmland about 48 years when it was given to him as a gift by the late Gunduman Tungan Mallam and was shown to his father by DW2, Wakili Boyi and one Kuso Kundu and contended that the evidence of the Respondent and his witnesses remained unchallenged and therefore, in law were deemed admitted by the Appellant as true and urged the Court to hold that the Respondent satisfactorily proved his title to the land in dispute through consistent evidence of traditional history of title to land as correctly held by the Court below and to dismiss the appeal for lacking in merit and affirm the sound judgment of the Court below. Counsel relied on Dr. John Olukayode Fayemi V. Olusegun Adebayo Oni (2010) 17 NWLR (Pt.1222) 326 AT p. 342, Agagu V. Mimiko (2008)11 NWLR (Pt. 1098) 320, Owoeye V. Oyinlola (2014) All FWLR (Pt. 721)1458.
On his issue three, learned counsel for the Respondent had submitted that the Court below did not predicate his decision on evidence on facts not pleaded but rather it properly and exhaustively considered and evaluated the evidence of the parties based on their pleadings before arriving at its findings and contended that the findings of the Court below was in line with the weight of the evidence led by the parties by which the consistent and credible evidence of the Respondent far more out weight the contradicted and cooked up stories of the Appellant and urged the Court to hold that the Court below was right when it believed and relied on the credible and consistent evidence of traditional history of title as led by the Respondent and his witnesses and rightly rejected the contradictory and cooked up stories passed – off as evidence by the Appellant and his witnesses and to dismiss the appeal for lacking in merit and affirm the correct findings and sound judgment of the Court below. Counsel relied on Ayorinde & Ors V. Sogunro & Ors (2012) LPELR -7808 (SC), Okereke & Anor V. Aba North LGA, unreported decision of the Court of Appeal in Appeal No. CA/PH/179/2004.
RESOLUTION OF ISSUE THREE
My Lords, issue three for determination encompassing Appellant’s issues one, two, four and six and Respondent’s issues one and three, deals with the real crux of the case between the parties as to who as between the Appellant, who was the Claimant before the Court below and the Respondent, who was the Defendant/Counter-claimant led credible, cogent and reliable evidence and proved his claim to title to the land in dispute.
In considering this crucial issue on the pleadings and evidence led by the parties and the findings already made thereon by the Court below, with which the Appellant is aggrieved, I bear in mind that it is now well accepted that in a claim for declaration of title, a Claimant as well as a Defendant/Counter-Claimant claiming declaration of title to land has open to him five ways by which to prove his title to the land in dispute. These five ways, which have crystallized over the years in a long line of decided cases as are replete in our law reports and each of which if proved by credible and cogent evidence is sufficient to ground title in the party who so claims, are namely:
A. Evidence of traditional history of title;
B. By production of title documents;
C. By acts of ownership;
D. By acts of possession long enough to warrant the person in possession as the owner;
E. By acts of possession of adjoining or adjacent land in such a way as would make it probable that the owner of the adjoining or adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612, Ojah V. Eviawure (2000) FWLR (Pt. 57) 163, Okore V. Onuyejuwa (2001) FWLR (Pt. 41) 1820.
On the averments of the parties as in the Record of Appeal, both parties, that is the Appellant and the Respondent had relied on evidence of traditional history of title to land as their root of title to the land in dispute. However, the parties are ad idem that it is the Respondent that is possession of the land in dispute at the time of the institution of the suit by the Appellant before the Court below. In law, the parties are bound by the pleadings and are thus obligated to and must conduct their cases within the confines of their pleadings. The Court is also bound by the pleadings of the parties and therefore, cannot go out of the issues as joined by the parties to make findings on facts not put in issue by the parties. It is also not permissible for the Court to make a case for parties contrary to their pleadings and evidence led thereon by them. See C. N. Okpala & Sons Ltd V. Nigerian Brewery Plc (2018) 9 NWLR (Pt.1623) 16 AT P. 20. See also Ignobis Hotels Ltd. V. Bentec Steel Ltd (2015) 1 NWLR (Pt. 1414) 504 AT P. 512, Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769. See also George V. Dominion Flour Mills Ltd.(1963) NLR 74, Emegokwue V. Okadigbo (1973) 4 SC 113, Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313.
I am aware that since a claim for declaration of title to land is by its nature a declaratory relief, a Claimant such as the Appellant as well as a Defendant/Counter-Claimant such as the Respondent claiming title to land must succeed on the strength of his own case and not on the weakness of the other party’s case. However, this does not rule out the fact that a party is legitimately and perfectly entitled to make use of evidence from the other party that supports his own case. See Nruamah V. Ebuzoeme (2013) 1 SCNJ 128.
Thus, in law once a party relies on a particular root of title, it is that root of title that must first be proved before any other acts may rightly be regarded as acts of ownership and or possession. In other words, where a Claimant had relied, as in the instant case the Appellant, on evidence of traditional history of title, and a counter – claimant, as in the instant case, the Respondent, on first settlement, each of them was under a duty to prove the particular root of title relied upon before he can rely on acts of ownership and possession. It follows therefore, in the event of failure of either of the parties to prove the primary root of title pleaded, such a party cannot turn round to rely merely on acts of ownership and possession, no matter how long. The claim to title of such a party, in such circumstances is liable to be dismissed for lacking in merit. However, neither a Claimant nor a counter-claimant for declaration of title to land need rely on more than one of the five methods since any of them proved sufficiently to the satisfaction of the Court would suffice. In Ezukwu V. Ukachukwu (2000) 1 NWLR (Pt. 642) 657 AT p. 679, it was reiterated inter alia thus:
“A Claimant of title to land, of course, need not rely on more than one of the five methods. No, where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails, the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root title needs must be, firstly established before the exercise of the rights of ownership may exercisable….”
See also Idundun V. Okumagba (1976) 6 – 10 SC 48, Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426, Paul Lawani V. Mrs. Risikatu Grillo & Ors (2018) LPELR – 44912(CA) per Georgewill JCA, Nwokorobia V. Nwogu & Ors (2008) All FWLR (Pt. 476) 1868, Nathan Igbudu & Ors V. Mr. Godspower Othe (2021) LPELR – 55559 (CA) per Georgewill JCA.
Interestingly, when it comes to the issue of possession of land in dispute, the law is that he who proves valid title is equally entitled to possession of the land in dispute. So settled is this position of the law that a person with a better title to land is by law deemed to be in possession even where he is not in de – facto physical possession of the land as against a person without any colour of right to the land. Thus, if there be dispute as to which of two persons is in possession, the presumption is that the person having the better title to the land is in lawful possession. Therefore, no matter the length of time of unlawful and or unauthorized entry and occupation of land, it cannot in law metamorphose or ripen into legal possession of the land. See Carrena V. Akinlase (2008) 14 NWLR (Pt. 1107) AT p. 262, where the Supreme Court emphatically pronounced inter alia thus:
“A person who has title over a piece of land, though not in de – facto physical possession, is deemed, in law, to be the person in possession. This is because the law attaches possession to title and ascribes it to the person who has title. Such possession is the legal possession, which is sometimes also called constructive possession.”
See also Oyadare V. Chief Keji (supra) AT P. 571, Gankon V. Ugochukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt. 297) 55 and Ezeanali V. Attah (2004) 7 NWLR (Pt. 873) 468.
Now, the burden of proof in civil cases is that of balance of probability or preponderance of evidence ensuing from a careful evaluation of the evidence proffered by the parties and putting same on the imaginary scale of justice to see which side the evidence preponderates. However, the evidence that is worth putting on the scale are such evidence that are credible, probable and worthy of weight not evidence which are incredible, inadmissible and not worthy of any weight. See Jiaza V. Bamgbose & Anor (1999) 7 NWLR (Pt. 610) 182. See also Dibiamaka V. Osakwe (1989) 3 NWLR (pt. 107) 101, Mogaji V. Odofin (1978) 4 SC 2; Onwuka V. Ediala (1989) 1 NWLR (pt. 96) 182 and Ekpo V. Ita (1932) 11 NLR 68.
Now, having sufficiently averted my mind to the applicable principles of law, on the one hand, what were the pieces of evidence led by the Appellant as Claimant in proof of his claim to title to the land in dispute, and on the other hand, what were the pieces of evidence led by the Respondent as Counter-Claimant in proof of his counter – claim to the land in dispute on the other hand?
The Appellant’s case was presented through five witnesses, PW1, PW2, PW3, PW4 and PW5. PW1 was one Joshua Auta, whose evidence in chief and cross-examination are at pages 12 – 14 and 56 – 57 of the Record of Appeal. PW2 was one Halima Doma, whose evidence in chief and cross-examination are at pages at pages 15 – 17 and 57 – 58 of the Record of Appeal. PW3 was one Usman Kure, whose evidence in chief and cross-examination are at pages 9 – 1 and 59 – 60 of the Record of Appeal. PW4 was one Garba Sidi, whose evidence in chief and cross-examination are at pages 18 – 20 and 61 – 62 of the Record of Appeal. PW5, was the Appellant’s father, Zakariya Shagabe Wakili deceased, who was the Claimant and whose evidence in chief and cross-examination are at pages 6 – 8 and 62 – 64 of the Record of Appeal. See also pages 1- 5 and 45 – 46 of the Record of Appeal for the Writ of Summons, Statement of Claim and Reply to Statement of Defence/Defence to counter-claim.
The Respondent’s case was also presented through five witnesses. DW1 was one Alhaji Ado Sarkin Zango, whose evidence in chief and cross-examination are at pages 41 – 43 and 65 – 66 of the Record of Appeal. DW2 was one Wakili Boyi, whose evidence in chief and cross-examination are at pages 30 – 31 and 66 – 67 of the Record of Appeal. DW3 was one Garba Kure, whose evidence in chief and cross-examination are at pages 38 – 40 and 67 – 68 of the Record of Appeal. DW4 was one Yakubu Auta, whose evidence in chief and cross-examination are at pages 36 – 37 and 68 of the Record of Appeal. DW5, was the Respondent, whose evidence in chief and cross-examination are at pages 33 – 35 and 68 – 69 of the Record of Appeal. See also pages 27 – 29 of the Record of Appeal for the Statement of Defence/counter-claim.
It was on the strength of the above averments in the pleadings and evidence led thereon that the Court below, in its judgment delivered on 16/12/2014, whilst dismissing the claim of the Appellant and granting the counter-claim of the Respondent, had stated and held inter alia thus:
“The Defendant denies the Plaintiff’s claims to the land and stated that he… inherited from his father…He stated how his late father got the land….He stated that his father migrated to Tungan Mallam from Gani and upon his arrival at Tungan Mallam went to them Gunduman Tunga and sought for a place to farm on. That a virgin land was shown to his late father by the late Gunduma through Wakili Boyi and Kuso Kundu…Wokili Boyi testified to the above effect before the Court. I accept his evidence…..The plaintiff’s Grandfather was a stranger and was borrowing land to farm on from Wokili Boyi’s grandfather…The testimonies of the Defence witnesses I found to be unshakeable. They are direct and reliable. The testimonies of the defence witnesses stand better test of truth that those of the plaintiff. The testimonies of the defendant/counterclaimant is in conformity with the defendant’s statement of claims regarding historical or traditional history. I found that the Defendant has discharged the burden of proof plead on line in an action of title to the land. The plaintiff’s claims I found not supported by any reliable evidence…From the evidence adduced before the Court by the Defendant/counter-claimant, I find the Defendant as plaintiff in his counter-claim to have been able to prove his entitlement to the land in dispute to warrant the Court declaring title to the land in his favour…the claim of the Plaintiff fails and are ordered dismissed in their entirety.…” See pages 95 – 105 of the Record of Appeal.
My Lords, I have taken time to review the averments in the pleadings of the parties. I have also taken time to review and consider the evidence as led by the parties and their witnesses. In considering the evidence of the parties as led through their witnesses and the findings of the Court below, I thought I should remind myself at once that in law evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act to make appropriate findings. See Saipem SPA V. India Tefa (2001) FWLR (Pt. 74) 377 AT P. 394. See also Igbinovia V. Agboifo (2002) FWLR (Pt. 103) 505 AT p. 514.
So, who as between the Appellant as Claimant and the Respondent as Counter-Claimant proved his title to the land in dispute and was the Court below right or wrong when it believed and preferred the evidence of the Respondent to that of the Appellant and held that it was the Respondent who by evidence of traditional history of title proved his title to land in dispute as against the evidence of traditional history of title of the Appellant, which it rejected as unreliable?
The Appellant had pleaded in paragraph 10 of his Statement of Claim that the Respondent is a stranger who only migrated from a village known as Game to Tungan Mallam and went into the Appellant’s father’s land to farm without their consent. In response, the Respondent had pleaded in paragraph 3(C) of his Statement of Defence admitted that indeed he migrated from Game to Tungan Mallam with his father, where the Gunduman of Tungan Malam gave his father the land in dispute to farm thereon. In law, facts admitted need no further proof. See Olagunyi V. Oyeniran (1996) 6 NWLR (Pt. 453) 127, Adedeji V. Oloso and Anor (2007) 145 LRCN 641 AT P. 643, Bunge V. Gov. Rivers State (2006) NWLR (Pt. 995) 573, Agbomeji V. Bakare (1998) 9 NWLR (PT.564) 1.
My Lords, I have taken time to review and consider the findings and conclusions of the Court below in the judgment appealed against in the light of the submissions of counsel for the respective parties in this appeal, and I find that, contrary to the findings of the Court below, the evidence led by the Appellant and his four witnesses were rather in line with and supported by his pleadings. In law, mere discrepancy, particularly in evidence of traditional history, which basically refer to oral stories passed on from generation to generation and outside living memory, is usual and expected as otherwise such evidence may have been product of tutoring of witnesses. See Black’s Law Dictionary Ninth Edition AT P. 640. See also Ohiaeri V. Akabeze (1992) 2 NWLR (Pt. 221) 32, Ewo & Ors V. Ani & Ors (2004) LPELR-1182 (SC), Elegushi V. Oseni (2005) 14 NWLR (Pt. 945) 349 AT P. 566, Irawo V. Adedokun (2005) 1, Dike & Ors V. Nzeka II & Ors (1986) LPELR – 945 and Dazuwa & Ors V. Dzugu (2014) LPELR – 24166.
Now, on the one hand, the Appellant had pleaded and led evidence to show that the land in dispute was first settled upon and deforested by his grandfather, outside living memory, and that it subsequently devolved on his father and thereafter devolved on him. There is neither any break in the chain of succession from the alleged founder to the Appellant nor is there any mysterious or unexplained gap in the evidence of traditional history of title as pleaded and led consistently in evidence by the Appellant as PW5 and his witnesses, PW1, PW2, PW3 and PW4. On the other hand, the Respondent who had also relied on evidence of traditional history of title that the land was founded and first settled upon by his father about 38 years ago, which is clearly within living memory and therefore, in law does not qualify as evidence of traditional history of title, as a gift from one Gunduman of Tungan Malam, but failed woefully to either plead and or prove how the said Gunduman of Tungan Malam became the owner of the land in dispute which he gave either as a gift or for use to the Respondent’s father.
I find the allegation and evidence of founding of the land in dispute by the Respondent’s father, in a community to which the Respondent is admittedly a stranger element to be hazy as well as lacking any foundation, support and credibility contrary to its unjustifiable reception hook, line and sinker by the Court below. No wonder the Respondent’s claim to title to the land in dispute oscillates between its being founded by his father by deforestation and its being a gift to the father by the Gunduman of Tungan Malam.
In law, the Respondent who had ultimately traced his title through his father to Gunduman of Tungan Malam, was under a duty to plead and prove the title of his father’s predecessor in title to the land in dispute, Gunduman of Tungan Malam, which he failed woefully to do as not even an attempt to prove same was made. His claim for title was therefore, left without a leg to stand on contrary to the perverse finding of the Court below buoyed up as it were by the evidence of DW2, one Wakili Boyi, to the effect that he was one of those that the Gunduman of Tungan Malam had instructed to show the land in dispute to the Respondent’s father. The evidence of DW2 was far below the evidence required of the Respondent in law to prove title of either Gunduman or the Respondent to the land in dispute. The Respondent was under a duty to prove that Gunduman of Tungan Malam, the predecessor in title to his father, and who was alleged to had given the land in dispute to his father, was the owner of the land which he gave to his father but he failed to prove this fact. The law, is ‘nemo dat quod non habet’ – one cannot give out what one does not have! See Gabdo V. Usman (2015) LPELR – 25678 (CA). See also Ibrahim V. Osunde & Ors (2009) LPELR – 1411(SC)
The Appellant who had relied on evidence of traditional history as his root of title, did adequately and satisfactorily, in my finding, discharged the burden of proving the three essentials facts, namely: (a) Who founded the land (b) How the land was founded (c) The particulars of intervening successors through whom the Appellant claims title to the land and he was therefore, entitled to the grant of his claim to the title to the land in dispute as against the baseless story of founding of land barely 38 years ago within living memory by a stranger in a community not belonging to him and over which land there was before the Court below by way of evidence from the Appellant as PW5, and his witnesses PW1, PW2, PW3 and PW4 and PW1 a very rich, consistent, balanced and indeed heavy dose of the evidence of traditional history of title to the land in dispute in favour of the Appellant. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Falomo V. Onakeme (2005) 11 NWLR (pt. 935) 125 AT P. 135, Lawani Alli V. Chief Gbadamosi (2000) 6 NWLR (Pt. 660) 177 AT P. 223, Oyadare V. Keji 1 (2005) 7 NWLR (Pt. 925) 571, Alade V. Awo (1975) 1 SC 215 and Ewo v. Ani (2004) 1 SC (Pt.11) 115).
Interestingly, from the evidence of Appellant as PW5, amply supported by the evidence of PW1, PW2, PW3 and PW4 and in line with the pleadings of the Appellant, even the name of the North-Western side of the land in dispute is known as Sorogbe, is the name given to it by the Appellant’s grandfather, Hawanniya Bawa to symbolise the two fallen ‘Madaci’ trees, which upon his cutting them fell across the Shigan Stream like a bridge. See paragraph 5 of the Statement of Claim at page 3 of the Record of Appeal.
Now, the mere fact that the Appellant left the land in dispute and relocated to Minna is neither here nor there in the proof of ownership of title to the land in dispute once it is proved by the evidence of traditional history of title that the land belonged to the Appellant. So, also is the possession of the land in dispute by the Respondent neither here nor there unless it was shown to have been based on a colour of right, such as proof of title to the land in dispute by the evidence of traditional history of title relied upon by the Respondent. The evidence of traditional history of title as pleaded and led by the Appellant proved clearly his ownership of the land in dispute, notwithstanding the admitted evidence of the Respondent being the one in possession, which possession I find is without any colour of right. In law, de jure possession is ascribed to the party with a better title as against even a party in de facto possession but without any colour of right. See Akanbi V. Salawu (2003) FWLR (Pt. 178) 1066 AT p. 1074. See also Mogaji V. Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt. 7) 393 and Kaburu Pada V. Woya Galadima & Anor (2018) 3 NWLR (Pt. 1607) 436 AT p. 443.
I find the heavy reliance by the Court below on the evidence given by the DW2, one Wakili Boyi, to the effect that he loaned the farmland used by the Appellant and his father to them as very unfortunate. In law, no Court of law is under any obligation and or duty to rely on and make use of evidence but not based on any pleaded facts. In law, evidence given on facts not pleaded ought to and should go to no issue. Thus, once such reliance and any finding of facts based thereon leads to a miscarriage of justice, an appellate Court would be under an irrefutable obligation to interfere with such finding and set it aside in the interest of justice. I find the heavy reliance of the Court below on evidence of the DW2 not based on any pleaded facts and the resultant findings in favour of the Respondent as amounting to a grave miscarriage of justice to the Appellant, who in law was not under any duty to respond to or controvert any evidence led on facts not pleaded. See C. N. Okpala & Sons Ltd V. Nigerian Brewery Plc (2018) 9 NWLR (Pt.1623) 16 AT p. 20. See also Amobi V. Amobi (1996)8 NWLR (Pt. 469) 638, Olowofoyeku V. AG Oyo State (1996) 10 NWLR (Pt. 477) 190, Ito V. Ekpe (2000) 2 SC 98, Adeleke V. Iyanda (2001) 13 NWLR (Pt. 729)1 and Adeniran V. Alao (2001) 18 NWLR (Pt.745)361.
My Lords, the averments of the Appellant in his Statement of Claim in relation to his evidence of traditional history of title was sufficient to show and did prove that the Appellant was entitled to the declaration of title to the land in dispute. His pleading on this was consistent and left no gaps. It contained all the essential requirements of a successful plea and proof of title to land by means of evidence of traditional history of title, namely: The name of founder of the land; The manner in which the land was founded; The names or particulars of unbroken chain of successive owners through whom the land devolved from the founder to the present party claiming ownership of the land. See Ewo v. Ani (2004) I SC 115. See also Okoko V. Dakolo (2006) All FWLR (Pt. 336) 201 AT p. 219, Alade V. Awo (1975) 1 SC 215 and Oyadare V. Keji (2005) 7 NWLR (Pt. 925) 571.
It in the light of the above findings of facts, and having taken time once again to go through the entire judgment of the Court below, it appears certain to me that the Court below, with due deference but regrettably, did not properly evaluate the evidence of the parties as led before it in line with the averments in the pleadings of the parties, with which both the parties as well as the Court below were bound in reaching proper and appropriate findings of facts.
The evidence of traditional history of title led by the Appellant as PW5, as well his witnesses, PW1, PW2, PW3 and PW4 were both cogent and consistent and in my finding completely satisfied the requirement of proof of title to land by way of evidence of traditional history of title, leaving no unexplained or unexplainable gaps on the succession from the Appellant’s grandfather to his father and to himself. It is the law that evidence of traditional history alone is sufficient to support a claim of title to land. See Alade V. Awo (1975) 4 SC 215 AT p. 228. See also Aikhionbare V. Omoregie (1976) 12 SC 11 AT P. 27, Falomo V. Onakanmi (2005) 11 NWLR (pt. 9350 925 AT P. 135.
In my view therefore, the mere de – facto possession by the Respondent of the land in dispute without any colour of right falls into insignificance in the face of the proved ownership right of the Appellant. In law, it is worth repeating here, a party must prove his root of title first and any consequential acts following therefrom can then properly qualify as acts of ownership. In other words, acts of ownership are done because of and in pursuance to right of ownership. Thus, once the root of title pleaded and relied on fails, as in the instant case by the Respondent as first settlement by his father or gift to his father by the Gunduman of Tungan Mallam fails, all acts of ownership and possession relied upon by the Respondent had become clear acts of trespass. See Okhuarobo & Ors V. Aigbe (2002) 9 NWLR (Pt. 711) 29 AT p. 61. See also Lawal V. Olufowobi (1996) 10 NWLR (Pt. 477) 177 AT p. 187, Fasoro V. Beyioku (1988) 2 NWLR (Pt. 76) 263, The Registered Trustees of the Diocese of Aba V. Helen Nkume (2002) 1 NWLR (Pt. 749) 726, Adole V. Gwar (2008) 11 NWLR (PT. 1099) 562, Alli V. Alesinloye (2000) 6 NWLR (Pt. 660) 177.
Looking critically at what the Court below did in the name of evaluation of evidence it was clearly lopsided. In law, evaluation of evidence by a Court must not be lopsided or on the basis of double standard to the parties. Where the evidence of one party, as in this case the Appellant and his witnesses were from the onset evaluated with a view to demolishing it, while the evidence of the Respondent and his witnesses were believed willy nilly without any critical appraisal. Such an evaluation cannot stand and the finding reached thereon are totally perverse. See SPDC Ltd V. Otoko (1990) 6 NWLR (Pt. 159) 693 AT p. 707, Nwaezema V. Nwaiyeke (1990) 2 NWLR (Pt. 137) 230, Adeleke V. Iyanda (2001) 13 NWLR (Pt. 729) 1 and Awudu V. Daniel (2005) 2 NWLR (Pt. 109) 199.
Finally, my Lords, having come to the inescapable conclusion and the clear finding that it was the Appellant who had by cogent credible and consistent evidence of traditional history established his title to the land in dispute, the law is clearly on the side of the Appellant to the effect that proof of ownership to land in dispute is prima facie proof of right to possession of the land in dispute. In law therefore, one in possession though he can maintain an action in trespass against any person but he certainly cannot maintain an action against the person having a better title to the land, who is in law presumed and or deemed to be the person with the right to lawful possession of the land in dispute as against the person who is in possession of the land in dispute without any colour of right. See Solomon V. Mogaji (1982) 11 SC 1, Ojomo V. Ibrahim (1999) 12 NWLR (pt. 631) 415 AT p. 435.
By reason of all the foregoing, issue three for determination, encompassing Appellant’s issues one, two, four and six and Respondent’s issues one and three, two issue for determination is hereby resolved in favour of the Appellant against the Respondent. I hold firmly that it was the Appellant rather than the Respondent that proved his title to the land in dispute on the balance of probability on the evidence he led through him and his witnesses, contrary to the perverse finding by the Court below that it was rather the Respondent that proved his title to the land in dispute. In law, such a perverse finding is liable to be set aside. See Central Bank of Nigeria V. Dantrans Nigeria Limited & Ors (2018) LPELR – 46678(CA), where this Court per Georgewill JCA has stated inter alia thus:
“In law, when it is said that a decision is perverse it means persistent in error, different from what is reasonable or required and against the weight of evidence… A decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence led before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties.”
See also CSS Book Shop Ltd. v The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310, Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Georgewill JCA., AT pp. 34 – 35, Michael V. Access Bank Plc (2017) LPELR – 41981 (CA) per Georgewill JCA., AT pp. 38 – 39.
On the whole therefore, having resolved issue three for determination dealing with the merit of the case of the parties in favour of the Appellant against the Respondent, notwithstanding the determination of issues one and two for determination against the Appellant in favour of the Respondent, I hold that the appeal has merit and ought to be allowed in part only on issue three for determination. Accordingly, the appeal is hereby allowed in part.
In the result, the judgment of the High Court of Niger State, Coram: Idris M. J. Evuti J., in Suit No. NSHC/MN/215/2013: Zakariya Shagabe Wakili V. Mallam Yusuf Jinjin Mohammed delivered on 16/12/2014, in which the claim of the Appellant as Claimant for declaration of title to the land in dispute against the Respondent as Defendant was dismissed, while the counter-claim of the Respondent for declaration of title to the land in dispute against the Appellant was granted, is hereby set aside.
In its stead, judgment in Suit No. NSHC/MN/215/2013: Zakariya Shagabe Wakili V. Mallam Yusuf Jinjin Mohammed is hereby entered in favour of the Appellant against the Respondent and it is hereby declared and ordered as follows:
1. It is hereby declared that the Appellant as Claimant is the person entitled to the Customary Right of Occupancy in and over the land in dispute as clearly described at paragraph 6 of the Statement of Claim.
2. An Order of perpetual injunction is hereby issued in favour of the Appellant as Claimant against the Respondent as Defendant restraining the Respondent as Defendant, his agents, privies, successors – in – title, personal representatives or any other person claiming through him from interfering with the Appellant as Claimant’s quiet and peaceful enjoyment of the land in dispute adjudged to belong to the Appellant as Claimant.
3. The sum of N100,000.00 only is hereby awarded as general damages in favour of the Appellant as Claimant against the Respondent as Defendant for trespass on the land in dispute adjudged to belong to the Appellant as Claimant.
The counter-claim of the Respondent as Defendant/Counter-Claimant against the Appellant is hereby dismissed for lacking in merit.
There shall be cost of N200, 000. 00 against the Respondent in favour of the Appellant.
PETER OLABISI IGE, J.C.A.: I agree with the reasoning and conclusion reached in the leading judgment delivered by my Noble Lord, GEORGEWILL, JCA.
I also agree that the counter-claim should be dismissed.
I agree with consequential orders made in the leading judgment.
DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, BIOBELE ABRAHIM GEORGWILL, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal is meritorious and it is allowed by me as well.
Accordingly, the judgment of the High Court of Niger State in Suit No. NSHC/MN/215/2013 delivered on 16th December, 2014 by Idris M. J. I Evuti, J., is hereby set aside. Thus, judgment is hereby entered for the Appellant as per his Reliefs 1-3 before the lower Court. The counter-claim of the Respondent is hereby dismissed for lack of merit. I abide by the order as to cost in the lead judgment.
Appearances:
Phillip K. Emmanuel, Esq. For Appellant(s)
Ekeh Jeremiah, Esq. For Respondent(s)
