NUHU V ZAKAR & ORS

NUHU V ZAKAR & ORS


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

ON TUESDAY, 18TH SEPTEMBER, 2018


Appeal No: CA/J/245/2017
CITATION:

Before Their Lordships:

ADZIRA GANA MSHELIA, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

ISHAKU NUHU

(APPELLANT)

AND

USMAN ZAKAR
MUHAMMADU DOLCHI
MUSA YUNKU
ABARO KURE
ZAKARI DAMSHI

(RESPONDENTS)


PRONOUNCEMENTS


A. APPEAL
1. interference with Evaluation of Evidence –

What an appellant must show to succeed in an appeal against evaluation of evidence by lower Court

“Where an appellant desires an appellate Court to interfere with the evaluation of evidence carried out by the lower Court and to re-evaluate the evidence and hold that the decision of the lower Court is incorrect he must visibly demonstrate the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Njoku Vs Eme (1973) 5 SC 293 at 306, Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Gundiri Vs Nyako (2014) 2 NWLR (Pt 1391) 211, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373.

An appellant has a duty to show how the findings made the lower Court are perverse. – Ude Vs State (2016) LPELR-40441(SC). In Amadi Vs Attorney General of Imo State
(2017) LPELR- 42013(SC), the Supreme Court made the point thus:

“Learned Counsel submits further that when a decision is perverse, the appellate Court can intervene in the interest of justice and set it aside. That undoubtedly is the law. … It is however not enough for a party to assert that the judgment of a law Court which enjoys the presumption of regularity by dint of Section 150 Evidence Act 1990 (now section 168 Evidence Act 2011) is perverse. He must show how the decision is perverse. The basic rule is, he who asserts must prove.”Per ABIRU, J.C.A. read in context

B. EVIDENCE
2. Evaluation of Evidence –

Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal

“It is obvious that the complaint of the Appellant in this appeal is against the evaluation of evidence of the parties carried out by the lower Court. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Woluchem Vs Gudi (1981) 5 SC 291 at 326, Nwankpu Vs Ewulu (1995) 7 NWLR (Pt 407) 269, Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564.”Per ABIRU, J.C.A. read in context

3. Burden of Proof – Effect of weakness of Defendant’s case on Plaintiff’s case

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

“…in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559.”Per ABIRU, J.C.A. read in context

4. Traditional Evidence – Obligations of a party pleading traditional evidence

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 root of title pleaded by the Appellant was evidence of traditional history. It is settled law that a party relying on traditional history must plead and prove: (i) who founded the land in dispute and exercised original acts of possession; (ii) in what manner the land was founded; and (iii) the successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained and history must show how the land by a system eventually came to be owned by the party – Ezinwa Vs Agu (2004) 3 NWLR (Pt 861) 431, Ewo Vs Ani (2004) 3 NWLR (Pt 861) 611, Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, Okarika Vs Samuel (2005) 7 NWLR (Pt 924) 365.

It is trite law that a claimant who relies on evidence of traditional history as proof of title must aver in his statement of claim seriatim the genealogical tree or line of succession of the family from the cradle of its founding fathers to him and he must also lead admissible evidence in vindication or proof of the statement of claim. Unless he performs these twin procedural functions, his action is bound to fail. In other words, the pleadings of the devolution and the evidence in support must be reliable and credible otherwise the claim would fail – Osuji Vs Ogualaji (2002) 16 NWLR (Pt 792) 136, Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt 979) 382, Ibikunle Vs Lawani (2007) 3 NWLR (Pt 1022) 580, Alikor Vs Ogwo (2010) 5 NWLR (Pt 1187) 281, Balogun Vs Yusuff (2010) 9 NWLR (Pt 1200) 515. Looking at the pleadings of the Appellant, he pleaded that the farmland in dispute was originally founded by Yawale, his grandfather, and who was the first person to clear the land. However, he did not plead the successive persons to whom the land thereafter devolved after the death of his grandfather; what he pleaded were the persons who succeeded his grandfather as the Ward Head of Garin Yawale. There is a world of difference between successors to a chieftaincy title and successors to ownership of land and the fact that someone is the holder of a chieftaincy title over a village or a settlement does not automatically transform such authority to ownership of the land of the village or settlement – Jinadu Vs Esurombi-Aro (2005) 14 NWLR (Pt 944) 142, Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt 979) 382. Also, apart from saying that Yawale was his grandfather, the Appellant also did not plead his genealogical tree through an unbroken chain showing how he was related to Yawale and how he is one of the beneficiaries of the farmland in dispute.

?Further, only the first plaintiff witness testified in support of the case of the Appellant on the pleadings and he stated that on the death of Yawale, the farmland devolved on Mina Gimba, the younger brother of the father of the first Respondent, Zakar Dogo Yaro, the first son of Yawale. He was, however, unable to explain how the devolution of the farmland bypassed the first son of Yawale and became vested in his younger brother. It is obvious that there were glaring gaps in the pleadings and in the evidence led by the Appellant in proof of his case on evidence of traditional history. It is trite law that an inconclusive and deficient evidence of traditional history cannot be plausible and credible and definitely cannot sustain a claim for declaration of title – Ali vs Salihu (2011) 1 NWLR (Pt 1228) 227, Jiya Vs Awumi (2011) 4 NWLR (Pt 1238) 467. The finding of the lower Court that the Appellant did not make out a credible case to sustain his claims was based on the pleadings and the evidence led and it cannot thus be faulted.”Per ABIRU, J.C.A. read in context

C. JUDGMENT
5. Perverse Decision – Circumstances where the decision of court would be regarded as perverse

Instances where the decision of court would be regarded as perverse

“A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.”Per ABIRU, J.C.A. read in context

D. LAND LAW
6. Ownership of Land – What must be established in a claim of ownership of land

“The law is that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche Vs Akusobi (2010) 12 NWLR (Pt 1208) 383. The onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise – Aromire Vs Awoyemi (1972) 1 SC 1, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Dike Vs Okoloedo (1999) 10 NWLR (Pt 623) 359, Olisa Vs Asojo (2002) 1 NWLR (Pt 747) 13, Sosan Vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546.

Thus, before the consideration of the case of the Respondents and the application of the
concept of preponderance of evidence can arise, it was incumbent of the Appellant to lead evidence making out a prima facie case of ownership of the farmland in dispute.”Per ABIRU, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY ABIRU, J.C.A


This appeal is against the judgment of the High Court of Yobe State in Suit No YBS/HC/PT/21CV/2014 delivered by Honorable Justice I. W. Jauro on the 6th of February, 2017. The Appellant was the claimant in the lower Court and the Respondents were the defendants. The dispute leading up to the action in the lower Court was in respect of ownership of a farmland lying and being at Garin Yawale by Gadaka in Fika Local Government Area of Yobe State and it is bounded on the east by the house of Kondo, on the west by Babaji Village grave yard, in the north by a farm owned by Yusuf Dadinka and in the south by a farm owned by late Doya Data.

The case of the Appellant was that the farmland was originally founded and cleared by his grandfather, one Yawale, who was also the father of the first Respondent and that his grandfather dug a well on the land, which was still in use till date. It was his case that by virtue of his grandfather being the founder of Garin Yawale, he was made the Ward Head and he left the farmland for the purposes of grazing and the hosting of immigrants.

It was his case that upon the death of his grandfather, he was succeeded as Ward Head by his son, Gimba Yawale, the younger brother of the first Respondent’s father, and who reigned as Ward Head for twelve years before relocating to Gadaka, and he was succeeded by Kondo Yawale as Ward Head, and who reigned for seven years before his death and was succeeded by Bulama Baba who reigned for ten years before his death.

It was the case of the Appellant that during the reigns of Kondo Yawale and Bulama Baba, a portion of the farmland was lent to Dogo Tika of Kalaye Village and Musa Maiduwa of Maiduwa Village and that after the death of Bulama Baba, Gimba Yawale borrowed the farmland and commenced farming thereon. It was his case that at a point in time, the first Respondent pleaded with Gimba Yawale to be allowed to farm on a portion of the land and he was allocated the western part of the farm land to farm upon and that this was how the first Respondent came unto the land. It was his case that upon the death of Gimba Yawale, his son, Haruna Gimba, and Audu Bulama took over the eastern part of the farmland and commenced farming thereon until 2013 when the first Respondent drove them from the land and sold the farmland to the second Respondent who in turn sold it to the third to the fifth Respondents. It was his case that the father of the first Respondent never farmed on the land in dispute and was heard to have disclaimed ownership of the farmland before his death and that upon the death of the father of the first Respondent, his estate was distributed amongst his heirs and the farmland was not included.

The claims of the Appellant were for declaratory orders that upon the death of Yawale, the ownership of the farmland devolved upon all his legal heirs, including himself, jointly and that the sale of the farmland to the second to fifth Respondent by the first Respondent was null and void and of no effect whatsoever and for an order of injunction to restrain anyone and everyone from tampering with the farmland.

The Respondents filed a joint statement of defence and they admitted that the Appellant and the first Respondent had a common grandfather called Yawale but it was their case that the farmland in dispute was founded by one Doya Data, a relative of Yawale and that the well of the farmland was dug by Zakar Dongo Yaro, the father of the first Respondent after he sought for and obtained the permission of one Lamba of Shambere. It was their case that it was the father of the first Respondent that requested for a grazing reserve around the well from Lamba of Shambere and that the matter was taken to the District Head of Fika who directed that the grazing reserve be carved out for the father of the first Respondent from the farmlands of one Aradu, Alhaji Muhammadu and others.

The Respondents admitted the Ward Headship of Garin Yawale as pleaded by the Appellant, save that they contended that Kondo Yawale was ever Ward Head and it was their case that Dogo Tika never farmed on the land and that it was the first Respondent that lent a portion of the land to Musa Maiduwa and to Gimba Yawale. It was their case that the farmland formed part of the Estate of the late father of the first Respondent but that it was left out during the sharing of his Estate on the advice of Mai Gudi that “one day the heirs may decide to come back to their place of birth to reside.” The Respondents counterclaimed for declaratory orders that the father of the first Respondent was the owner of the farmland and that the first Respondent had the right to sell/mortgage the farmland to the second to fifth Respondents and they prayed for an order of injunction restraining the Appellant from trespassing on the land.

The matter proceeded to trial and in the course of which the Appellant called three witnesses in proof of his case and the Respondents called two witnesses in proof of their case. At the conclusion of the trial, Counsel to the parties filed and adopted their respective final written addresses and the lower Court entered judgment dismissing the claims of the Appellant and the counterclaim of the Respondents. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal containing four grounds of appeal and dated the 3rd of May, 2017 against it. The records of appeal were compiled and transmitted to this Court on the 10th of July, 2017 and were deemed properly compiled and transmitted on the 27th of November, 2017. Counsel to the Appellants filed a brief of arguments dated the 29th of December, 2017 on the same date and Counsel to the Respondents filed a brief of arguments dated the 2nd of February, 2018 on the 5th of February, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

Counsel to the Appellant distilled one issue for determination in the appeal and it is – whether the lower Court was right in dismissing the claims of the Appellant in view of the evidence adduced before the Court.

In arguing the issue for determination, Counsel stated that it is settled that where a trial Court fails in its duty to properly consider the evidence before it and that failure leads it to draw wrong conclusions, an appellate Court is perfectly justified in re-evaluating and re-considering the whole evidence in order to arrive at a just conclusion and he referred to the cases of Guinness Vs Udeani (2000) 18 WRN 27, Ombugadu Vs CPC (2013) 3 NWLR 31 and Chukwu Vs Omenku (2009) All FWLR (Pt 490) 697. Counsel stated that the Appellant led clear and accurate evidence of the traditional root of title of his family to the farmland in dispute through the evidence of the first prosecution witness and which was supported by the evidence of the second and third plaintiff witnesses. Counsel stated that the testimonies of the witnesses were in line with the case of the Appellant on the pleadings and they were not contradicted or controverted by the Respondents and that where there is evidence relevant to the issue in controversy and it is not challenged, it is good and reliable and ought to be ascribed probative value and a plaintiff who adduces such reliable is entitled to succeed on preponderance of evidence and he referred to the cases of Cappa & D’Alberto Ltd Vs Akintilo (2003) 9 NWLR (Pt 824) 49 and Chabasaya Vs Anwasi (2010) 6 SCM 30.

Counsel stated that where parties to a land dispute both anchor their respective cases on traditional evidence, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which of the two is weightier and that the Appellant in the instant case not only proved traditional history, but also acts of ownership such as leasing and renting out the farmland in dispute and he referred to the cases of Odunukwe Vs Ofomata (2010) 12 SCM 117 and Idundun Vs Okumagba (1976) 9-10 SC 227. Counsel stated that it is settled law that family land is rarely individually owned and it belongs to the community or family and it never loses its common ownership and that where it is allotted to a member of the family, it does not cease to be family land and he cannot alienate the land without the consent of the family and he referred to the case ofOlodo Vs Josiah (2011) 47 NSCQR 133. Counsel states that where a party claims exclusive title to communal or family land against the entire family or community, he must cogently prove a partition of the land claimed and he place reliance again on the case of Olodo Vs Josiah supra.

Counsel traversed through the case of the Respondents on the pleadings and in the evidence of the defence witnesses and stated that the evidence of the defence witnesses were not in tandem with the case of the Respondents on the pleadings and were contradictory to the root of title to the farmland pleaded. Counsel stated that it is not the business of the Court to pick and choose or explain the manifest and material contradiction and such evidence cannot support a claim for ownership of land and he referred to the cases of University of Ilorin Vs Adesina (2009) All FWLR (Pt 487) 56 and Intime Connection Ltd Vs Ichie (2010) All FWLR (Pt 543) 1879.

On his part, Counsel to the Respondents also distilled one issue for determination in the appeal and it is – whether or not the trial Court rightly evaluated the evidence adduced before it by the parties.

Counsel stated that the Appellant conspicuously relied on traditional history as his root of title of ownership of the land in dispute and that to succeed, he must prove who founded the land, how the land was founded and the particulars of the intervening owners through whom he claims and he referred to the case of Egbo Vs Agbara (1997) 1 NWLR (Pt 481) 293. Counsel stated that the testimony of the first plaintiff witness, the principal witness of the Appellant, was shaky and not cogent enough to satisfy the necessary particulars of a claim predicated on traditional history and that the testimonies of the second and third plaintiff witnesses were irrelevant and did not assist the case of Appellant.

Counsel conceded that this Court possesses the power to interfere with the findings of the lower Court where it fails to evaluate the evidence adduced before it by the parties properly, but that the lower Court properly evaluated the evidence adduced before it and the need for this Court to exercise the power did not arise and he referred to the case of Obueke Vs Nnamchi (2012) 12 NWLR (Pt 1314) 327. Counsel stated that a plaintiff in a claim of title to land must rely on the strength of his case and not on the weakness of the case of the defence and that as such the submission of the Counsel to the Appellant that the Respondents led conflicting evidence is irrelevant and he referred to the cases of Usman Vs Garke (1999) 1 NWLR (Pt 587) 466 and Akoledowo Vs Ojubutu (2012) 16 NWLR (Pt 1299) 1.

Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

It is obvious that the complaint of the Appellant in this appeal is against the evaluation of evidence of the parties carried out by the lower Court. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Woluchem Vs Gudi (1981) 5 SC 291 at 326, Nwankpu Vs Ewulu (1995) 7 NWLR (Pt 407) 269, Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564.

Where an appellant desires an appellate Court to interfere with the evaluation of evidence carried out by the lower Court and to re-evaluate the evidence and hold that the decision of the lower Court is incorrect he must visibly demonstrate the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Njoku Vs Eme (1973) 5 SC 293 at 306, Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Gundiri Vs Nyako (2014) 2 NWLR (Pt 1391) 211, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373.

An appellant has a duty to show how the findings made the lower Court are perverse. – Ude Vs State (2016) LPELR-40441(SC). In Amadi Vs Attorney General of Imo State (2017) LPE R- 42013(SC), the Supreme Court made the point thus:
“Learned Counsel submits further that when a decision is perverse, the appellate Court can intervene in the interest of justice and set it aside. That undoubtedly is the law. … It is however not enough for a party to assert that the judgment of a law Court which enjoys the presumption of regularity by dint of Section 150 Evidence Act 1990 (now Section 168 Evidence Act 2011) is perverse. He must show how the decision is perverse. The basic rule is, he who asserts must prove.”

A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (200 ) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.

In dismissing the claims of the Appellant, the lower Court stated in the judgment thus:

“… a party relying on traditional history to prove his land must establish the following:-

1. Who founded the land

2. How he founded the land

3. The particulars of the intervening owners through whom he claims
By this, the work of this Court is made easier as we first need to find out whether the plaintiff by the evidence he led was able to prove the above three requirements.

First, as to who founded the land, PW1 a 55 year old stated in his evidence that the land was founded by Yawale who migrated and cleaed a virgin land. He added that Yawale stayed on the land for about 68 years. After the death of Yawale the land was inherited by his son Maina Gimba. Meanwhile he equally testified that the father to the 1st defendant is the eldest son of Yawale. The evidence of PW1 under cross examination is not helpful as he stated that the land was founded about 68 years ago. Invariably that is to say the farmland was founded 13 years before he was born since he stated his age to be 55 years old. There is therefore no way he could have known who founded the farmland. The evidence of PW2 and PW3 is of no relevance in this situation as they only talked of loan of the farm to their parents without stating who founded the farmland or how it was founded.

On issue two as to how the land was founded, since no evidence is led as to who founded the land, the question of how the land was founded does not arise. Issue two also must be resolved against the plaintiff. And on the 3rd issue as to particulars of intervening owners through whom he claims, this is also not shown by the evidence. PW1 in his evidence stated that Maina Gimba inherited Yawale and in another breadth he stated that the father of the 1st defendant Zakar Dogo Yaro is the eldest son of Yawale. Thus the evidence is not only shaky but confusing as to who really inherited Yawale after his death. Was it the eldest son as is the tradition or Maina Gimba? The evidence as it is cannot be relied upon in proof of the particulars of the intervening owners. I find the 3rd issue also not proved.

In the result therefore the plaintiff whose claim is largely based on traditional history and who could not lead evidence as to who founded the land, how he founded it, and the particulars of intervening owners, his claim must fail and is liable to be dismissed. …”

Counsel to the Appellant did not pointedly attack these findings of the lower Court. The arguments that Counsel canvassed was that the Appellant led evidence of his traditional history of the ownership of the land through the first plaintiff witness and whose evidence was supported by the second and third plaintiff witnesses and that the evidence of the witnesses was not contradicted under cross examination and was thus reliable and that the Appellant was entitled to judgment on a preponderance of evidence. Counsel obviously forgot that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559.

The law is that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche Vs Akusobi (2010) 12 NWLR (Pt 1208) 383. The onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise – Aromire Vs Awoyemi (1972) 1 SC 1, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the Defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Ajibona Vs Kolawole ( 996) 10 NWLR (Pt 476) 22, Dike Vs Okoloedo (1999) 10 NWLR (Pt 623) 359, Olisa Vs Asojo (2002) 1 NWLR (Pt 747) 13, Sosan Vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546.

Thus, before the consideration of the case of the Respondents and the application of the concept of preponderance of evidence can arise, it was incumbent of the Appellant to lead evidence making out a prima facie case of ownership of the farmland in dispute.

The root of title pleaded by the Appellant was evidence of traditional history. It is settled law that a party relying on traditional history must plead and prove: (i) who founded the land in dispute and exercised original acts of possession; (ii) in what manner the land was founded; and

(iii) the successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained and history must show how the land by a system eventually came to be owned by the party – Ezinwa Vs Agu (2004) 3 NWLR (Pt 861) 431, Ewo Vs Ani (2004) 3 NWLR (Pt 861) 611, Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, Okarika Vs Samuel (2005) 7 NWLR (Pt 924) 365.

It is trite law that a claimant who relies on evidence of traditional history as proof of title must aver in his statement of claim seriatim the genealogical tree or line of succession of the family from the cradle of its founding fathers to him and he must also lead admissible evidence in vindication or proof of the statement of claim. Unless he performs these twin procedural functions, his action is bound to fail. In other words, the pleadings of the devolution and the evidence in support must be reliable and credible otherwise the claim would fail – Osuji Vs Ogualaji (2002) 16 NWLR (Pt 792) 136, Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt 979) 382, Ibikunle Vs Lawani (2007) 3 NWLR (Pt 1022) 580, Alikor Vs Ogwo (2010) 5 NWLR (Pt 1187) 281, Balogun Vs Yusuff (2010) 9 NWLR (Pt 1200) 515.

Looking at the pleadings of the Appellant, he pleaded that the farmland in dispute was originally founded by Yawale, his grandfather, and who was the first person to clear the land. However, he did not plead the successive persons to whom the land thereafter devolved after the death of his grandfather; what he pleaded were the persons who succeeded his grandfather as the Ward Head of Garin Yawale. There is a world of difference between successors to a chieftaincy title and successors to ownership of land and the fact that someone is the holder of a chieftaincy title over a village or a settlement does not automatically transform such authority to ownership of the land of the village or settlement – Jinadu Vs Esurombi-Aro (2005) 14 NWLR (Pt 944) 142, Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (Pt 979) 382. Also, apart from saying that Yawale was his grandfather, the Appellant also did not plead his genealogical tree through an unbroken chain showing how he was related to Yawale and how he is one of the beneficiaries of the farmland in dispute.

Further, only the first plaintiff witness testified in support of the case of the Appellant on the pleadings and he stated that on the death of Yawale, the farmland devolved on Mina Gimba, the younger brother of the father of the first Respondent, Zakar Dogo Yaro, the first son of Yawale. He was, however, unable to explain how the devolution of the farmland bypassed the first son of Yawale and became vested in his younger brother. It is obvious that there were glaring gaps in the pleadings and in the evidence led by the Appellant in proof of his case on evidence of traditional history. It is trite law that an inconclusive and deficient evidence of traditional history cannot be plausible and credible and definitely cannot sustain a claim for declaration of title – Ali vs Salihu (2011) 1 NWLR (Pt 1228) 227, Jiya Vs Awumi (2011) 4 NWLR (Pt 1238) 467. The finding of the lower Court that the Appellant did not make out a credible case to sustain his claims was based on the pleadings and the evidence led and it cannot thus be faulted.

In conclusion, this Court finds no merit in the appeal. The appeal fails and it is hereby dismissed. The judgment of the High Court of Yobe State in Suit No YBS/HC/PT/21CV/2014 delivered by Honorable Justice I. W. Jauro on the 6th of February, 2017 is hereby affirmed. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.

MSH LIA, J.C.A.

I read before now the Judgment of my learned brother Abiru, J.C.A just delivered. I completely agree with his reasoning and conclusion arrived thereat, that the appeal ought to be dismissed. I too dismiss the appeal and abide by the consequential orders contained therein the lead Judgment inclusive of costs.

WILLIAMS-DAWODU, J.C.A.

I had the privilege and opportunity to read the draft of the lead Judgment delivered by my learned brother, HABEEB A. O. ABIRU, JCA.

Having so done, I agree with the reasoning and conclusion reached therein, I also find the appeal to be unmeritorious and consequently affirm the Judgment delivered on February 6th 2017 by Hon. Justice I. W. Jauro in the Court below.

I make no order as to costs.

Appearances:

Dennis Eze For Appellant(s)

N. K. Idris For Respondent(s)