ADAMU V ALELE

ADAMU V ALELE


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON WEDNESDAY, 11TH JULY, 2018


Suit No: CA/J/244/2017

CITATION:

Before Their Lordships:

ADAMU JAURO, JCA

UCHECHUKWU ONYEMENAM, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

ALI ARI ADAMU
(APPELLANT)

AND

YUNUSA ALELE
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Pleadings – How it is a necessity for pleadings to be proven
Effect of failure to call evidence in support of pleadings

Averments in pleadings are facts as perceived by the party relying on them. There must be oral and or documentary evidence to show that facts pleaded are true. Consequently pleadings without evidence to support it are worthless. Cameroon Airlines V. Otutuizu (2011) LPELR – 827 (SC). This is simply because Pleadings are mere averments and it requires evidence on the part of the Party to prove the facts pleaded. It goes without saying that any pleaded fact that was not proved or supported by evidence is deemed abandoned. Sani Abacha Foundation For Peace And Unity & Ors. V. UBA Plc(2010) LPELR – 3002 (SC). Per ONYEMENAM, JCA. read in context

B. EVIDENCE
2. Proof of Title to Land – The modes of proving ownership to land
Ways of proving title/ownership of land

It has become as a chorus in a hymn that a claim for declaration of title to land may be proved by any of the five ways stated and restated in numerous decisions of the apex Court. Piaro V. Chief W. Tenalo (Supra); Idundun V. Okumagba (1976) 1 NMLR 200; Makanjuola V. Balogun (1989) NWLR (PT. 108) 192; Olukoya V. Ashiru (2006) ALL FWLR (PT. 322) 1479. Orianzi V. Ag Rivers State & Ors (2017) LPELR- 41737) (SC); Sogunro & Ors V. Yeku (2017) LPELR – 41905) (SC). These five methods of proving title or ownership to land are:-

1. By traditional evidence;

2. By production of document of title which must be duly authenticated;

3. By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land;

4. By acts of long possession and enjoyment of the land, and

5. By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. In Olukoya V. Ashiru (Supra) the Supreme Court gave the third method of proving ownership of land as follows:- By acts of selling, leasing, renting out all or part of the land or farming on it or on a portion thereof. Per ONYEMENAM, JCA. read in context

3. Traditional History – The elements to be proven by a party relying on traditional history in proving title to land
What a party relying on traditional history is expected to plead and prove to establish his root of title; effect of failure of a party to prove same

The law is equally greatly settled that a party seeking for a declaration of title to land who relies on traditional history as proof of his root of title must plead same sufficiently. That is to say; he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just dug the grave to bury his claim. Anyafulu & Ors. V. Meka & Ors. (2014) LPELR – 22336 (SC); Hyacinth Anyanwu V. Robert Achilike Mbara & Anor (1992) 5 SCNJ. 90, Idundun V. Okumagba (1976) 9 -10 SC 224, Atanda V. Ajani (1989) 3 NWLR (PT. III) 511. Per ONYEMENAM, JCA. read in context

4. Onus of Proof – What makes the proof of the claimant successful
Whether a plaintiff can rely on the weakness in the case of the defendant to prove his own case in an action for declaration of title

Then again, I must note that in an action for declaration of title to land, the onus is on the claimant to establish his case on the balance of probabilities. It is also settled law that he must succeed on the strength of his case and not on the weakness of the defence. Section 133 (1) & (2) of the Evidence Act, 2011provides:

“133.(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleadings have been dealt with.”

Thus notwithstanding the fact that the plaintiff must succeed on the strength of his own case, once he has adduced sufficient prima facie evidence to entitle him to the relief sought, the onus shifts to the defendant. Orianzi V. AG Rivers State & Ors. (Supra). Per ONYEMENAM, JCA. read in context

5. Competent Witness – Who is a competent witness in a land matter

There is no law that I know of that bars a person who is not a blood relation from giving evidence in a matter. If anything the fact that the PW1 has no inheritance in Baba Kano’s estate makes him a neutral witness whose evidence should have been deemed unbiased. Anybody connected with land whether due to family link with the land or as a witness to what happened to the land or as a party to a transaction on the land is a competent witness. Umeojiako & Anr. V. Ezenemuo & Ors. (1990) LPELR – 3367 (SC). The issue of competence to give evidence is governed by statutory provisions. The question of the competence of witnesses generally is provided for in Section 175(1) of the Evidence Act which PROVIDES as follows:-

“All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”

Thus all persons with the exception of those disqualified in S. 175 are competent witnesses. Elabanjo V. Tijani (1986) LPELR – 1107 (SC). Per ONYEMENAM, JCA. read in context

6. Contradiction in Evidence – How minor discrepancy in evidence doesn’t destroy the credibility of the witness
Effect of minor discrepancy in evidence on credibility of the witness(es)

On the evidence of PW2 as it relates to age and years he referred to, it is of common knowledge that illiterates in the villages hardly have birth records and as such use remarkable events to guess their age and when events occurred. In my view differences in the use of age and number of years events occurred in the circumstances of this case, should as in this case be taken as discrepancies and not contradictions. The law is trite that where two or more pieces of evidence seem to vary, and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. Abokokuyanro V. State (2016) LPELR – 40107 (SC); Ayo Gabriel V. The State (1989) 5 NWLR 457. Per ONYEMENAM, JCA. read in context

7. Traditional History – The ingredient required to be shown by a party relying on traditional history
Nature of traditional evidence that will sustain a claim for declaration of title to land

The learned trial Judge did not also accord value to the evidence of PW2 for the reasons that he did not state how the land was transferred to the Appellant from his father, and that he added that the farmland in dispute is now in possession of the Respondent. The PW2 said in his evidence that after the death of Baba Kano the Appellant his son acquired the land. This shows the land passed on to the Appellant after the death of the father. This satisfies the law that the party claiming title through traditional history must state how the land passed on from hand to hand until it got to him. The ingredient required is that the land passed on in succession through family members without a break in the chain of succession until it got to the party who is relying on traditional history. Anyafulu & Ors V. Meka & Ors. (Supra). Herein, that the PW2 did not specifically state how the land was passed on to the Appellant by his father does not defeat the fact that in PW2’s evidence he stated that in the line of succession of the farmland in dispute the Appellant came next after his father Baba Kano. Per ONYEMENAM, JCA. read in context

8. Hearsay Evidence – The admissibility of hearsay evidence while relying on traditional history
When hearsay evidence can be allowed in family or communal land matters

On the evidence of PW3, the learned trial Judge said it was not safe to rely on same as he was merely told what happened. Indeed the PW3 said he lived with elders who told him what happened. Section 66 of the Evidence Act provides:

“Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”

By the above provision of the evidence Act hearsay upon hearsay evidence can be allowed to be given upon the established principles in support only of a properly pleaded traditional history. As in this case where the Appellant pleaded fully and relied on traditional history to prove his title to family land most of which events happened before the witnesses were born but facts and stories were passed down from elders down the line, hearsay evidence is admissible to prove the family history of the title to the farmland in dispute. Alli & Anor V. Alesinloye & Ors. (2000) LPELR – 427 (SC). Accordingly, the learned trial Judge was wrong when he held that it was not safe to rely on the testimony of PW3 and went ahead not to accord value to the evidence. Per ONYEMENAM, JCA. read in context

9. Burden of Proof – On whom lies the burden of proof in a claim for declaration of title to land

I am mindful of the fact that the burden of proof herein is on the Appellant who seeks declaratory reliefs and that because the Respondent has not counter claimed, the burden of proof on the Appellant is heavier as the Respondent has no duty at all to prove his title to the same land in dispute. Onovo & Ors. V. Mba & Ors. (2014) LPELR – 23035 (SC); Adekanmbi V. Jangbon (2007) ALL FWLR (PT. 383) 152. I am also at home with the fact that by Section 133 (1) of the Evidence Act, 2011, the onus to establish the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side; and also that in an action for declaration of title as in the instant case it is settled law that a claimant must succeed on the strength of his case and not on the weakness of the defence. However, by Section 133
(2) of the Evidence Act, 2011; when and where a Claimant as in the instant case has adduced evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden shifts and lies on the party against whom judgment would be given if no more evidence were adduced. So although the plaintiff must succeed on the strength of his own case, in this action that is for declaration of title to land since he has adduced sufficient prima facie evidence to entitle him to the reliefs sought, the onus has shifted to the defendant to dislodge the Appellant’s case as established. Orianzi V. AG. Rivers State & Ors (Supra). Per ONYEMENAM, JCA. read in context


LEAD JUDGMENT DELIVERED BY ONYEMENAM, JCA


This is an appeal against the Judgment of the High Court of Yobe State sitting in Potiskum, delivered by I. W. Jauro, J. on 2nd May 2014 in SUIT NO: YBS/HC/PT/1CV/13; wherein the learned trial Judge dismissed the Appellant’s claim at the trial Court. The Appellant being dissatisfied with the trial Court’s Judgment has now appealed to this Court by a Notice and Grounds of appeal filed pursuant to the Order of this Court made on 15th May, 2017.

At the trial Court the Appellant who was the Plaintiff by his amended statement of claim, sought for the following reliefs:

a. A DECLARATION that the act of Mai Pataskum is unlawful, illegal, null and void and of no effect.

b. A DECLARATION of this honourable Court that the farmland lying and situate at Jala as herein above described belongs to his father

c. A DECALRATION of this honourable Court that neither the Defendant nor any other person has any right whatsoever over and above that of the Plaintiff. d. A FURTHER DECLARATION of this honourable Court declaring the Defendant as trespasser to the farmland in dispute.

e. A PERPETUAL INJUNCTION restraining the Defendant, his agents, servants, privies or any other person claiming through him from further trespass on the farmland in dispute.

f. N2,000,000.00 (Two million Naira) general damages

At trial, the Appellant relied on traditional history in prove of his claim. He called three witnesses. The Respondent who was the Defendant called four witnesses. After hearing at the trial Court, the learned trial Judge in his considered judgment dismissed the Appellant’s claim whereupon an appeal was filed. Upon an appeal being filed before this Court and after briefs were filed and exchanged by the parties the appeal was ripe for hearing.

On 8th May, 2018 when the appeal was heard, T. A. LENKAT Esq. holding the brief of D. I. NDAHI Esq. appeared for the Appellant. Mr. B. M. Salihu represented the Respondent. Mr. Lenkat referred to the Appellant’s brief filed 31st July, 2017. He adopted and relied on the said brief in urging the Court to allow the appeal. Mr. Salihu in response also referred to the Respondent’s brief deemed properly filed and served on 19th March, 2018. He adopted and relied on it in urging the Court to dismiss the appeal. Mr. Ndahi in the Appellant’s brief nominated the following two (2) issues for determination of this appeal to wit:
1. “Whether or not the lower Court was right when it held that the plaintiff having failed by credible evidence to establish his claim before this Court, the case must be and is hereby dismissed.

2. Whether or not the lower Court was right to have come into conclusion and relying on the emir/mai of potiskum extra-judicial decision of coercibly conferring title of the farmland in dispute to the defendant without a counter-claim.”

Mr. Salihu for the Respondent in his brief adopted the Appellant’s issue 1 but derived a different issue as his issue 2. The Respondent’s issue 2 is:

“Whether or not the trial Court relied upon or was influenced in any way at all by the actions of the Emir/Mai Potiskum prior to the parties coming to Court in the determination of suit number YBS/HC/PT/1C V/2013.”

For the absolute determination of the dispute in this appeal, I shall adopt the issue 1 raised by the Appellant as I deem the resolution of same is apt to settle the dissatisfaction of the Appellant.

SUBMISSIONS ON ISSUE 1

Mr. Ndahi submitted for the Appellant on issue 1 for determination of this appeal thus; from the pleadings, evidence adduced by the Appellant and the observations made by the trial Court and the Mai of Potiskum on the farmland in dispute, the Appellant proved his case; and the trial Court erred when it dismissed the suit of the Appellant.

He submitted on the five methods of proof of ownership or title to land and cited: Idundun V. Okumagba (1976) 9-10 SC 227; Alh. Saidu Garin Jala & 4 Ors V. Musa Garin Jala & 14 Ors (Unreported CA/J/322/2016 PAGES 11-12). The learned counsel also submitted on the settled principle of the modes of acquisition of title to land in law.

He relied on: Ajiboye V. Ishola (2006) 11 MJSC PG. 191 @ PG. 209 PARAS C-F.

Then again, Mr. Ndahi submitted on who the burden of proof and the standard of prove in an action for declaration of title to land. He rested on: Onwugbufor V. Okoye (1996) 1 NWLR (PT. 424) PG. 252. The learned counsel for the Appellant argued that the Appellant put before the trial Court direct and credible evidence in proof of his claim of title through inheritance. He submitted on the nature of pleading and evidence required in law to be placed before the Court by a Claimant who relies on inheritance to prove his title to land. He cited:Kosile V. Folarin (1989) 4 SC (PT. 1)150 @ 164. Mr. Ndahi referred the Court to the evidence of PW1-PW3 at pages 31-42 of the record to contend that the Appellant proved his claim.

The learned counsel further submitted that a party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed, but he is entitled to rely on more than one root of title. He relied on:Eronini V. Theuka (1989) 2 NWLR (PT. 101) 46; Ekwunife V. Wayne (West Africa) Ltd. (1989) 12 SC 92. He invited the Court to the pleadings at pages 29-30 of the record, evidence of PW1-PW3 at pages 31-42; to submit that the Appellant through his pleadings and evidence established his title by traditional history.

He urged the Court to resolve issue 1 in favour of the Appellant.

Mr. Salihu in reply to the submissions of the learned counsel for the Appellant, submitted on the burden of proof in civil litigation. He relied on: Oredola Okeya V. B.C.C.I (2014) 57 (PT. 1) NSCQR PG 230. He particularly noted the burden of proof on a Plaintiff in an action for declaration of title to land. He referred to the Appellant’s pleadings at pages 29 to 30 of the record especially at paragraph 9; to submit that the Appellant’s 3 witnesses failed to establish the facts pleaded in the amended statement of claim to discharge the evidential burden placed upon the Appellant in law. He argued that the Appellant did not satisfy the onus of proof placed on a party who relies on traditional history to establish his title. He relied on: Addah Vs. Ubanda Waki (2015) 61 (PT 2) NSCQR PG 1198. He invited the Court to the evidence of the Appellant and his witnesses at the trial Court at pages 31 to 40 of the record. He analysed the evidence and contended that evidence placed by the Appellant at the trial Court posed the following three main issues which must be answered in the negative. The questions raised by the Respondent’s counsel are:

1. Did the plaintiff present any evidence before the trial Court explaining or justifying why no action was brought against the defendant by the plaintiff’s father after the defendant came into possession of the farmland in question?

2. Was any evidence presented by the plaintiff before the trial Court explaining why the farmland in dispute and in possession of the defendant, not included as part of the estate of the late Baba Kano?

3. Did the plaintiff present any evidence before the trial Court establishing his claim to the farmland in question when he the plaintiff himself admitted in evidence that he had brothers.

He thereafter urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF SOLE ISSUE

It has become as a chorus in a hymn that a claim for declaration of title to land may be proved by any of the five ways stated and restated in numerous decisions of the apex Court. Piaro V. Chief W. Tenalo (Supra); Idundun V. Okumagba (1976) 1 NMLR 200; Makanjuola V. Balogun (1989) NWLR (PT. 108) 192; Olukoya V. Ashiru (2006) ALL FWLR (PT. 322) 1479. Orianzi V. Ag Rivers State & Ors (2017) LPELR- 41737) (SC); Sogunro & Ors V. Yeku (2017) LPELR – 41905) (SC).

These five methods of proving title or ownership to land are:-

1. By traditional evidence;

2. By production of document of title which must be duly authenticated;

3. By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land;

4. By acts of long possession and enjoyment of the land, and

5. By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

In Olukoya V. Ashiru (Supra) the Supreme Court gave the third method of proving ownership of land as follows:- By acts of selling, leasing, renting out all or part of the land or farming on it or on a portion thereof.

The law is equally greatly settled that a party seeking for a declaration of title to land who relies on traditional history as proof of his root of title must plead same sufficiently. That is to say; he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just dug the grave to bury his claim. Anyafulu & Ors. V. Meka & Ors. (2014) LPELR – 22336 (SC); Hyacinth Anyanwu V. Robert Achilike Mbara & Anor (1992) 5 SCNJ. 90, Idundun V. Okumagba (1976) 9 -10 SC 224, Atanda V. Ajani (1989) 3 NWLR (PT. III) 511.

Then again, I must note that in an action for declaration of title to land, the onus is on the claimant to establish his case on the balance of probabilities. It is also settled law that he must succeed on the strength of his case and not on the weakness of the defence. Section 133 (1) & (2) of the Evidence Act, 2011provides:

“133. (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleadings have been dealt with.”

Thus notwithstanding the fact that the plaintiff must succeed on the strength of his own case, once he has adduced sufficient prima facie evidence to entitle him to the relief sought, the onus shifts to the defendant. Orianzi V. AG Rivers State & Ors. (Supra).

Having stated the relevant positions of the law I will now revert to the pleadings and evidence of the Appellant at the trial Court to ascertain whether the Appellant satisfied the standard of pleadings and onus of proof placed on him by the law. I shall reproduce the relevant paragraphs of the Appellant’s amended statement of claim at pages 29 – 30 of the record.

PARAGRAPHS:

4. The Plaintiff avers that about 100 years ago, his grand-father one Jala migrated to the present day Jala upon the arrival of Bolewas to Potiskum.

5. The plaintiff further avers that upon his grandfather’s arrival to Jala, he founded the farmland in dispute along with one Seshu and together they cleared the same as it was a bush no inhabitants.

6. The plaintiff further avers that pursuant to paragraph 5 above, the said Seshu took southern part of the bush while his grandfather took the northern part as his own farmland,

7. The plaintiff avers, that the farmland in dispute is bonded by a farmland owned by Abubakar f Abaye on the north, on the south by a farmland owned by Abubakar Dina, on the east by a farmland owned by Haruna Kuku and on the west by a farmland owned by Nyako Jala.

8. The plaintiff avers that his grandfather had many children amongst them is his father Adamu Bakano.

9. The plaintiff avers that his father was given the farmland in dispute by his grand- father the said Jala.

10. The plaintiff avers that pursuant to paragraph 9 above, his father had been farming the farmland in dispute for about 80 years and had built houses on the same, before he died, about 9 years ago and was buried under one of the boaboa trees he planted on the farmland.

11. The plaintiff avers that their father, in addition to paragraph 10 above, planted economic trees such as neem, boaboa and cide coat and grew millet, beans sorghum etc. for about 80 years before his death.

From the reproduced pleadings of the Appellant, the claim of title through inheritance by the Appellant was adequately supported by sufficient pleaded facts showing who founded the land, how it was founded, and the person who owned the land from the founder up to the time it became vested on the Appellant. Kosile V. Folarin (1989) 4 SC (PT. 1) 150. What is left now is to examine the evidence placed before the trial Court by the Appellant to determine whether it supports the pleadings reproduced above to entitle the Appellant to the grant of his claim. The PW1 in his evidence testified that he was present when Jala the founder of the land gave Baba Kano the Appellant’s father the farmland in dispute. That the Appellant’s father from the year Jala gave him the land was in possession of the farmland till his death. The PW1 said the Appellant inherited the land from his father. That the Appellant and his siblings still live in the houses Baba Kano built on the disputed farmland even after his death. He stated that the Emir without hearing the Appellant’s father dispossessed him of the land and gave the same to the Respondent as a result of which the Appellant’s father Baba Kano fell sick and eventually died. That resulting from the dispossession, the Respondent is now on the farm land. The PW1 said he followed Baba Kano into the Emir’s palace but the Appellant’s father was not given audience before the Emir announced that the Emirate has collected his land and given to the Respondent.

The PW2 gave evidence of Jala as the founder of the land and how he founded the same. He gave evidence of how Jala gave the farmland in dispute to Baba Kano the Appellant’s father when he took a wife. That Baba Kano was on the land where he even built houses until the Emir dispossessed him of the land and gave the same to the Respondent. That as a result of the Emir’s decision, the Respondent is now in possession of the farmland. He noted that although he and few others went with the Appellant’s father to the Emir’s palace to give evidence of the land in favour of Baba Kano, they were not allowed entrance.

He equally gave evidence that the Appellant acquired the farmland in dispute upon the death of his father.

The PW3 extensively gave evidence on who and how the farmland was founded. How the land passed on to Baba Kano and eventually to the Appellant. His evidence is not different from the evidence of the PW2 in substance. That was the evidence of the Appellant at the trial Court in the main. The evidence of the Appellant was not discredited under cross examination. At pages 68 to 69 of the record while considering the evidence of the PW1, the trial Court made uncomplimentary remarks against the PW1 and for three main reasons discountenanced his testimony. The learned trial Judge reasoned that because PW1 was not a blood relation to the parties he was a busy body. That he said he was 59 years old, meanwhile he was about 13 -14 years old when Baba Kano was given the land which he held for over 60 years. That PW1 did not state how Jala founded the land. For these he did not ascribe any value on the evidence of the PW1. There is no law that I know of that bars a person who is not a blood relation from giving evidence in a matter. If anything the fact that the PW1 has no inheritance in Baba Kano’s estate makes him a neutral witness whose evidence should have been deemed unbiased.

Anybody connected with land whether due to family link with the land or as a witness to what happened to the land or as a party to a transaction on the land is a competent witness. Umeojiako & Anr. V. Ezenemuo & Ors. (1990) LPELR – 3367 (SC). The issue of competence to give evidence is governed by statutory provisions. The question of the competence of witnesses generally is provided for in Section 175(1) of the Evidence Act which PROVIDES as follows:-

“All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”

Thus all persons with the exception of those disqualified in S. 175 are competent witnesses. Elabanjo V. Tijani (1986) LPELR – 1107 (SC).

On the evidence of PW2 as it relates to age and years he referred to, it is of common knowledge that illiterates in the villages hardly have birth records and as such use remarkable events to guess their age and when events occurred. In my view differences in the use of age and number of years events occurred in the circumstances of this case, should as in this case be taken as discrepancies and not contradictions. The law is trite that where two or more pieces of evidence seem to vary, and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. Abokokuyanro V. State (2016) LPELR – 40107 (SC); Ayo Gabriel V. The State (1989) 5 NWLR 457.

As to the fact that the PW1 did not state how Jala founded the land in dispute, this was not adverse to the case of the Appellant because both PW2 and PW3 gave evidence on how Jala founded the farmland in dispute in line with the pleadings of the Appellant so the evidence placed by the Appellant before the trial Court was not bereft of how Jala founded the land. Moreover, the PW2 did not give a contradictory history of how Jala founded the land. Also the person who founded the land and how he founded the land was not in issue as the Respondent also pleaded Jala as the founder and how he founded the land in agreement with the pleadings of the Appellant. The learned trial Judge was therefore wrong when he failed to accord probative value on the evidence of the PW1.

The learned trial Judge did not also accord value to the evidence of PW2 for the reasons that he did not state how the land was transferred to the Appellant from his father, and that he added that the farmland in dispute is now in possession of the Respondent. The PW2 said in his evidence that after the death of Baba Kano the Appellant his son acquired the land. This shows the land passed on to the Appellant after the death of the father. This satisfies the law that the party claiming title through traditional history must state how the land passed on from hand to hand until it got to him. The ingredient required is that the land passed on in succession through family members without a break in the chain of succession until it got to the party who is relying on traditional history. Anyafulu & Ors V. Meka & Ors. (Supra). Herein, that the PW2 did not specifically state how the land was passed on to the Appellant by his father does not defeat the fact that in PW2’s evidence he stated that in the line of succession of the farmland in dispute the Appellant came next after his father Baba Kano. As for his evidence of who is in possession of the farmland in dispute, the PW2’s evidence is that the land in dispute is now in possession of the Respondent because the Emir collected the land from the Appellant’s father and gave it to the Respondent. This piece of evidence is not contrary to the pleadings of the Appellant neither does it in any way support the case of the Respondent. Again the learned trial Judge was in error when it failed to accord value to the evidence of PW2 on these grounds.

On the evidence of PW3, the learned trial Judge said it was not safe to rely on same as he was merely told what happened. Indeed the W3 said he lived with elders who told him what happened. Section 66 of the Evidence Act provides:

“Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”

By the above provision of the evidence Act hearsay upon hearsay evidence can be allowed to be given upon the established principles in support only of a properly pleaded traditional history. As in this case where the Appellant pleaded fully and relied on traditional history to prove his title to family land most of which events happened before the witnesses were born but facts and stories were passed down from elders down the line, hearsay evidence is admissible to prove the family history of the title to the farmland in dispute. Alli & Anor V. Alesinloye & Ors. (2000) LPELR – 427 (SC).

Accordingly, the learned trial Judge was wrong when he held that it was not safe to rely on the testimony of PW3 and went ahead not to accord value to the evidence.

For all I have said above, the evidence of the Appellant before the trial Court was direct and credible and supported the pleadings; but I will first weigh it with the evidence of the Respondent before arriving at a conclusion as to whether the learned trial Judge arrived at a correct decision. I am mindful of the fact that the burden of proof herein is on the Appellant who seeks declaratory reliefs and that because the Respondent has not counter claimed, the burden of proof on the Appellant is heavier as the Respondent has no duty at all to prove his title to the same land in dispute. Onovo & Ors. V. Mba & Ors. (2014) LPELR – 23035 (SC); Adekanmbi V. Jangbon (2007) ALL FWLR (Pt. 383) 152. I am also at home with the fact that by Section 133 (1) of the Evidence Act, 2011, the onus to establish the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side; and also that in an action for declaration of title as in the instant case it is settled law that a claimant must succeed on the strength of his case and not on the weakness of the defence. However, by Section 133 (2) of the Evidence Act, 2011; when and where a Claimant as in the instant case has adduced evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden shifts and lies on the party against whom judgment would be given if no more evidence were adduced. So although the plaintiff must succeed on the strength of his own case, in this action that is for declaration of title to land since he has adduced sufficient prima facie evidence to entitle him to the reliefs sought, the onus has shifted to the defendant to dislodge the Appellant’s case as established. Orianzi V. AG. Rivers State & Ors (Supra).

On his own the evidence of the Respondent is that his uncles Nyako and DW4 gave him the land in dispute. DW3 gave evidence that it was his father Nyako who gave a portion of the farmland in dispute to the Respondent in his presence. DW3 testified thus:

“The farmland was subdivided into 3. One portion of the farmland was given to Yunusa Alele by my father”. DW1, one of the sons of Jala also claimed to have given his portion of the farmland to the Respondent. The DW1 in his testimony said: “The farmland is divided into 3 parts, the part I was using after sometime I gave it to Yunusa Alele”

DW1, Nyako and the Appellant’s father are all Jala’s children. The Respondent pleaded that he shares the same grandfather with the Appellant. He did not make mention of his own father and the land given to him by Jala. What is uncertain here is the farmland that was divided into three parts. Is it the entire farmland founded by Jala or the individual farmlands given to DW1 and DW3’s father? Also if the land divided into three parts is the one founded by Jala, does it mean DW1 and Nyako gave out the entire farm land given to them by their father to the Respondent leaving out their own children? It is not certain from the evidence the Respondent placed before the Court the farmland his uncles gave to him as from the evidence it is clear that Jala gave his children their respective farmlands. The question that was left unanswered which is material to the fact in issue was which farmland was divided into three parts and was severally given to the Respondent by his uncles until he was able to acquire the entire farmland. None of the witnesses who are all brothers to Baba Kano alleged that he trespassed into their own portion of the farmland. The Appellant maintained that through his grandfather Jala, his father Baba Kano got the farmland in dispute and then he acquired the same after the death of his father. The evidence of the Respondent was not direct and cogent as to the farmland that was divided into three parts which he eventually acquired through his three uncles. None of the witnesses clearly stated that Jala divided his farm land into three to DW1, DW2 and DW3’s father and the three of them relinquished the rights to their respective portions to the Respondent in which case the question that will arise will be what became of the farmland given to other children of Jala by Jala. This uncertainty of the evidence on this material fact to the fact in issue tilts the scale of justice balance against the Respondent as it touches on the credibility of the evidence he placed before the trial Court. Furthermore the DW2 in his evidence strengthened the case of the Appellant thus:

“The grave of Bakano is in the disputed farmland. The Plaintiff’s houses are on the farmland in dispute. Is what I know that I told the Court……Bakano lives (sic) non the disputed farmland.….”

The question that bugs the mind hear is, if the DW1, DW2 and DW3’s father Nyako, and Appellant’s father Baba Kano (also known as Bakano) were all given their portions of land by their father Jala; and the farmland in dispute belonged to DW1, DW2 and Nyako, how come the Appellant’s father built and lived, and his children still living on the disputed farmland which both the DW1, DW2 and Nyako his brothers are respectively alleging were theirs but which they gave to the Respondent. How come the Appellant’s father Baba Kano was buried on the disputed farmland. The Respondent did not provide answers to these questions which the Appellant provided. The Appellant’s answer to these questions is that it is because his father Baba Kano was the one Jala gave that portion of the farmland which he the Appellant acquired after his death.

Weighing the evidence therefore and on the balance of probability, the scale tilts heavily more in support of the case of the Appellant. I am from the foregoing of the view that the learned trial Judge did not appraise the evidence of parties properly and as such made wrong findings which led to a miscarriage of justice. The learned trial Judge considerably took into account the facts which were pleaded by the Respondent for which no evidence was adduced to arrive at his conclusion. Averments in pleadings are facts as perceived by the party relying on them. There must be oral and or documentary evidence to show that facts pleaded are true.

Consequently pleadings without evidence to support it are worthless. Cameroon Airlines V. Otutuizu (2011) LPELR – 827 (SC). This is simply because Pleadings are mere averments and it requires evidence on the part of the Party to prove the facts pleaded. It goes without saying that any pleaded fact that was not proved or supported by evidence is deemed abandoned. Sani Abacha Foundation For Peace And Unity & Ors. V. UBA Plc (2010) LPELR – 3002 (SC).

The learned trial Judge at pages 67 and 68 of the record referred and relied on paragraphs 8 (viii), (ix), (xiv); 10 (xv), (xvi).

PARAGRAPH 8

(viii). That when the estate of the Plaintiff’s father came for distribution to his heirs after his death, the farmland in dispute was not included among the estate left behind by the Plaintiff’s late father.

(ix). That the Defendant has been in possession of the farmland in dispute since the lifetime of Jala (Plaintiff’s grand-father) except the initial four years of the Plaintiff’s father’s settlement in Garin Jala.

(xiv). That it was when the Plaintiff’s father came back to Jala, he was given the portion of the farmland in dispute on loan by the Defendant to settle. PARAGRAPH 10

(xv). That the Plaintiff/Applicant’s father, the Defendant/Respondent and Muhammadu Jala confirmed the position of paragraph (xvii) and (xviii) to Mai Pataskum in his palace and in the presence of some witnesses.

(xvi). That Mai Pataskum only adviced them to honour/comply with terms of the agreement reached, since they had confirmed to him their voluntariness to it.

He also found thus:

“Thus it can be seen that the Plaintiff’s father inherited the farmland from his father Jala at least according to the Plaintiff. What I found baffling however is the statement that the Plaintiff’s father held the farmland in trust for himself and his brothers long before his father died. The simple question to ask here is what then happened to the farmland after the Plaintiff’s father’s death. Did the Plaintiff’s farming on the farmland for about 50 years now made the farmland to be their own? So how did they come about the farmland to be their own; was there evidence to that effect?”

The averments in the Respondent’s statement of defence reproduced above were not supported in any way by the evidence placed before the trial Court by the Respondent through PW1 to PW4. The averments in law are deemed abandoned and therefore struck out. Unfortunately the learned trial Judge relied on these averments and the address of the learned counsel for the Respondent on the facts in the referred averments to arrive at his findings and decision at pages 70 and 71 where he said:

“The evidence of the defence is cogent and convincing over and above that of the Plaintiff and it is my finding that the preponderance of evidence weighs heavily on the side of the Defendant…..

On the whole, it is the findings of this Court and as rightly submitted by the Defendant’s counsel that the area the Plaintiff is residing is not the area in contention before this Court but the farmland which the Defendant is in possession that is in dispute before this Court. The Defendant stated in evidence that he has been in possession of the farmland for about forty (40) years today and PW2 and PW3 confirmed the fact that the Defendant is in possession of the land in dispute. By this fact, the claim of the Plaintiff is not in possession as counsel for the Defendant rightly submitted……

Finally, the Plaintiff having failed by credible evidence to establish his claim before this Court, the case must be and is hereby dismissed.”

Findings and decision of the trial Court based on the referred abandoned averments in the Respondent’s pleadings are bad in law and cannot stand.

Whereas at page 68 of the record, the trial Court had accepted the pleadings and evidence that the Appellant’s father inherited the farmland in dispute from his father Jala, he was again baffled that the Appellant said even while his father was alive he held the farmland in trust for himself and his brothers. The trial Court wondered what happened to the land after the death of Appellant’s father. It found that the Appellant did not give evidence as to how they came to own the farmland. This aspect of the trial Court’s finding is quite distressing. The learned trial Judge seemed to have confused himself. On one breath he is in agreement with the Appellant that the farmland in dispute was inherited by his father from his grandfather. On another breath he is questioning how they came to own the land. In my view there is nothing baffling with the Appellant’s evidence that he had before the death of his father been in charge of the land in trust for himself and his brothers. It is a common practice with fathers and sons. There was reliable evidence on record that at the death of Baba Kano, the Appellant was the next in the family succession line who took over the farmland in dispute.

Very importantly, whereas the learned trial Judge accepted that the Appellant’s father at least inherited the disputed farmland from Jala, then which farmland did the learned trial Judge uphold that the Respondent’s uncles DW1, DW2 and DW3’s father gave to him to come to the conclusion that the testimonies of DW1 – DW4 are so interwoven and show clearly how the farmland in dispute was given to the Respondent. The conclusion is that there was no coherent and cogent evidence from the Respondent to counter the evidence placed before the trial Court by the Appellant. The trial Court wrongly appraised the evidence placed before it and came to wrong findings and conclusion.

On the three questions the Respondent raised in his brief and urged the Court to answer them in the negative, I shall briefly answer them now.

On the first question, the answer is in the affirmative. The Appellant presented evidence at the trial Court as to why his father did not bring action against the Respondent after the Emir collected his father’s land and gave to the Respondent. The PW1 on record, said when the Emir dispossessed Baba Kano of the land in dispute they all came out crying and Baba Kano as a result suddenly fell sick. He was hospitalized and eventually died of high blood pressure as a result of the Emir’s pronouncement.

On the second question the answer is in the affirmative. The evidence on record is that it is the houses that were built on the farmland in dispute that were not distributed when the estate of Baba Kano was distributed because the Appellant and Baba Kano were living there together before his demise and after his death the Appellant continued to live there with his siblings.

Lastly, and on the third question the law allows any member of a family to protect a family property by bringing an action against a third party, so the Appellant did not need to place any evidence before the Court as to their family’s internal affairs to maintain the action. If the Appellant is opposed by the brothers, they are the people that have the right to challenge the action brought by the Appellant.

The three questions are therefore answered in the affirmative and against the Respondent.

From all I have said above, I hold that the Appellant proved title to the farmland in question by traditional history to entitle him to a declaration of title. I resolve the sole issue in favour of the Appellant.

Finally, I find merit in the Appellant’s appeal. Appeal No: CA/J/244/17 succeeds and is allowed. I set aside the judgment of the High Court of Yobe State sitting in Potiskum in SUIT NO: YBS/HC/PT/1CV/13 delivered on 2nd May, 2014.

Consequently, I make Order:

1. Granting the reliefs sought by the Appellant at the trial Court in terms of Reliefs A, B and E.

2. Relief C is refused and dismissed.

3. Relief D cannot be granted because the Respondent honestly entered the land believing he had the right based on the Emir’s pronouncement. However from today and with this judgment any subsequent presence of the Respondent on the land amounts to trespass. For this reason therefore relief F is also refused and dismissed.

4. I award a cost of N100,000.00 in favour of the Appellant.

JAURO, JCA

I had the privilege of reading in advance the judgment just delivered my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in agreement with the reasoning and conclusions contained therein to the effect that the appeal is meritorious.

Consequent upon the foregoing, the appeal succeeds. I adopt the judgment as mine in allowing the appeal, in terms of the lead judgment. I abide by all consequential orders made in the lead judgment.

WILLIAMS-DAWODU, JCA

I had the privilege and opportunity to preview the lead Judgment delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA.

Having so done, I agree completely with the reasoning and conclusion reached therein and I also therefore allow the appeal and find same as meritorious. I abide by the orders made therein.

I make no order as to costs.

Appearances:

T. A. LENKAT holding the brief of D. I. NDAHI For Appellant(s)

B. M. SALIHU For Respondent(s)