TIZHE & ANOR V INDIYAWA

TIZHE & ANOR V INDIYAWA


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

ON THURSDAY, 9TH AUGUST, 2018


Suit No: CA/YL/124/2016

CITATION:

Before Their Lordships:

OYEBISI FOLAYEMI OMOLEYE, JCA

JAMES SHEHU ABIRIYI, JCA

SAIDU TANKO HUSSAINI, JCA


BETWEEN

MUSA ABUBAKAR TIZHE
ISA ABUBAKAR
(APPELLANTS)

AND

ILIYA INDIYAWA
(RESPONDENT)


PRONOUNCEMENT


A. EVIDENCE
1. Burden of Proof – The burden of claimant succeeding on the strength of their case in an action for declaration of title to land
Whether a plaintiff can rely on the weakness of the defendant’s case to prove his own case in action for declaration of title

In a case for declaration of title to land, the claimant must succeed on the strength of his own case only. In him lie the burden of proof. See: Dike Vs. Uhunmwangho (2011) LPELR – 4843 (CA); Adole vs. Gwar (2008) 11 NWLR (Pt. 1099) 562; Elema V. Akenzua (2008) 13NWLR (Pt. 683) 92; Kodilinye Vs. Odu (19 ) 2 WACA 336; Bello Vs. Eweka (1981) 17 SC 101. Per HUSSAINI, JCA. read in context

B. JUDGMENT AND ORDER
2. Perverse Decision – What a perverse finding means
Instances where the decision of court would be regarded as perverse

A perverse finding is a finding of fact which is speculative and not based on any evidence before the Court. A perverse finding is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial Judge. See: Iwuoha Vs Nipost (2003) 8 NWLR (Pt. 822) 308 or (2003) 4 SC (Pt. 11) 118. Per HUSSAINI, JCA. read in context

C. LAND LAW
3. Identity of Land – When the duty of proving identity of land doesn’t exist
Instance when the identity of land will not be in issue

Before I go any further it is worthy of mention that the identity of the land in dispute including the third portion to which this appeal relates, is not in dispute by dint of paragraphs 3, 10, 11 and 12 of the Statement of claim of the Appellants and paragraphs 1 and 4 of the Statement of defence of the Respondents. That being the case there is no longer any duty on the claimants, in this case, the Appellants to lead evidence and prove the identity of the parcel of land (including the third portion or piece of land in dispute) since all those are parcels of land known to the parties on both sides . See: Akinterinwa Vs . Oladunjoye (2000) 6 NWLR (Pt. 695) 92; Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282; Adedeji Vs. Oloso (2007) 5 NWLR (1026) 133, Aremu V. Adetoro (2007) 16 NWLR (1060) 214; Udechukwu Vs. Ezemuo (2009) 14 NWLR (Pt. 1162) 525; Ayuya Vs. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Jagarba Vs. Umar (2016) LPELR-40466 (CA). Per HUSSAINI, JCA. read in context


LEAD JUDGMENT DELIVERED BY HUSSAINI, JCA


This appeal is against the Judgment delivered at the High Court of Justice Adamawa State holden in Mubi on the 21st June, 2016 in Suit No. ADSM/56/2010. The Appellants were the Plaintiffs at that Court. Their claim at the trial High Court is inscribed in the Writ of Summons and the Statement of Claim dated and filed on the 18th November, 2010 is for:

i. Declaration that 3 pieces of land situate at Duda village in Mubi North Local Government Area of Adamawa State sharing boundaries with undisputed portion of the land of late Abubakar Tizhe [alias Abubakar Pefa] and the pieces of lands of Mumini Tizhe, Ardo Sule Yakubu Maksha Yawa, Babi Keliya, Beloo Jabiya, Marafa and Sale Madugu as well as a mountain, form part of the distributable estate of late Abubakar Tizhe [alias Abubakr Pefa]

ii. N1,500.00 (One Million Five Hundred Thousand Naira] general damages for trespass to the said pieces of land.

iii. Injunction restraining the defendant and all persons claiming through him from further trespass to or interfering with the said pieces of land; and

iv. Cost of the suit.

The Respondent was the defendant at the trial Court. He had filed a defence and denied the claim, consequent upon which the matter went into hearing with evidence of witnesses elicited by parties on both sides.

In the reserved Judgment delivered on 21st June, 2016 the Court granted the claim of the Appellants as it relates to two(2) of the three (3) pieces of land situate at Duda village in Mubi North Local Government and claimed by the Appellants but refused their claim over the third portion of the land in dispute.

It is against this Order and Judgment of the trial High Court the Appellants lodged the appeal to this Court. The Notice of appeal to this effect is dated and filed on the 9th September, 2016.

The case for the Appellants briefly put, is that the 3 (Three) pieces of land in dispute form part of a larger piece of land situate in Duda village in Mubi North Local Government.

That the land was founded by their late father, Abubakar Tizhe (Abubakar Pefa). Their case is that their father acquired the land by acts of deforestation and put the land into use immediately by cultivating it. He built a residential house on the land.

He also rented out other portions of the land to tenants among whom is the Respondent. On the demise of their father, the Appellants requested of the Respondent to vacate the land to them being the heirs of their deceased father.

The Respondent rather than vacate the land put up claim of ownership to the land hence the Appellants commenced the suit against him.

The Respondent on his part claimed that the land occupied by him originally belonged to his mentor, one Katiga (Jatau) through whom he also came to own the land, having performed certain customary rites on the death of his mentor, he took over the land as the custom permit.

Parties through their counsel filed and exchanged their briefs of argument through their respective counsel and adopted them when the appeal came up for hearing.

In his brief of argument dated and filed on the 22nd December, 2016 the Appellant identified just 1 (one) issue for determination of Court thus:

Whether the trial Court was justified in refusing to grant declaration sought by the plaintiffs in respect of one of the portions of the disputed land on the basis of the DW2 having testified that “the defendant had exercised acts of ownership on the portion of land along Bahuli road by planting cassava and enclosing it with cactus” when:

1. The plaintiffs/Appellants have proved their title to the land of which the three disputed portions are parts by evidence of long possession and acts of ownership as found by the trial Court;

2. The DW2 never gave any such evidence and when

3. It was never the case of the plaintiff or the defendant before the trial court that the land or any portion of it was along Bahuli road or that the defendant enclosed any of the portions of the disputed land with cactus trees.

The Respondent on his part similarly raised 1 (one) issue in his brief of argument for the determination of Court and the issue is

“whether the trial Judge was not in error when he granted only two portions of the land to the Appellant.”

After adopting his brief of argument we were urged by counsel for the Appellants to allow this appeal and grant the claim with respect to the 3rd portion of the land in dispute since the trial Court could not justifiably restrict plaintiff/Appellants’ title to only 2 (two) portions of the land and not the third.

As to be expected, the Respondent through his counsel urged us to dismiss this appeal.

I have perused through the briefs submitted by counsel on both sides and I quite agree with them that the question this Court is called upon to address is whether the trial Court was right in refusing to make a declaratory order in favour of the Appellants with regard to the third portion of the land which the Respondent was found to be in occupation?

Before I go any further it is worthy of mention that the identity of the land in dispute including the third portion to which this appeal relates, is not in dispute by dint of paragraphs 3, 10, 11 and 12 of the Statement of claim of the Appellants and paragraphs 1 and 4 of the Statement of defence of the Respondents. That being the case there is no longer any duty on the claimants, in this case, the Appellants to lead evidence and prove the identity of the parcel of land (including the third portion or piece of land in dispute) since all those are parcels of land known to the parties on both sides. See: Akinterinwa Vs. Oladunjoye (2000) 6 NWLR (Pt. 695) 92; Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282; Adedeji Vs. Oloso (2007) 5 NWLR (1026) 133, Aremu V. Adetoro (2007) 16 NWLR (1060) 214; Udechukwu Vs. Ezemuo (2009) 14 NWLR (Pt. 1162) 525; Ayuya Vs. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Jagaba Vs. Umar (2016) LPELR-40466 (CA).

What was required of the Appellant to do in the circumstance was to lead evidence to prove his root of title in relation to all the three portions of land and how they came by that land. In a case for declaration of title to land, the claimant must succeed on the strength of his own case only. In him lie the burden of proof. See: Dike Vs. Uhunmwangho (2011) LPELR – 4843 (CA); Adole vs. Gwar (2008) 11 NW R (Pt. 1099) 562; Elema V. Akenzua(2008) 13NWLR (Pt. 683) 92; Kodilinye Vs. Odu (1955) 2 WACA 336; Bello Vs. Eweka (1981) 17 SC 101.

The Appellants in their bid to prove their case called evidence of 4 (four) witnesses through Pw1, Pw2, Pw3 and Pw4 whose evidence on record is at pages 72-85. They all acknowledge in their evidence the fact that the pieces of land in dispute form part of a larger parcel of land which Abubakar Tizhe had acquired by acts of deforestation, and put same to use by farming on it. He also practised animal husbandry on the land. That he built his residential house on the land in dispute.

At the close of the Plaintiffs’/Appellants’ case, the defendant/Respondent opened his defence and called evidence of 3 (three) witnesses. See pages 87-89 of the record.

The trial Court considered evidence adduced by parties and made some significant findings of fact in the course of Judgment relative to the evidence adduced by the parties. See for instance pages 114-120 of the record of Judgment. One of such findings, if I may say, is at page 115 of the record where the trial Court held thus:

“The evidence of the plaintiffs on long possession and acts of ownership are direct and positive, PW1 said the plaintiff’s father cleared the land built his house on it and cultivated the surroundings land. He also planted economic trees on the land. See the evidence of PW2 who also participated and planted the trees. The evidence of Pw3 and Pw4 also indicate that their father rented out some portions of the land. They were also born on the land and grew up there, until when their father migrated to Mubi.

These act of the plaintiffs spanned a record of about 50-70 years.

The evidence of the defendant on the other side shows that the disputed land was first cleared by Manaska then Katiga or Jatau, then the defendant. However the defendant finally took over the land when the said Katiga died 6 years ago.

There is evidence that Katiga through whom the defendant claims title stayed on the land of Abubakar and that when the defendant’s father died, Katiga brought the defendant together with his siblings to stay with him.”

It is clear from the passage above that the trial Court found the evidence of the plaintiff/Appellant on the issue of long possession and ownership, more probable compared to the evidence adduced by the Respondent as defendant hence preferred same as being more direct and positive. It is worthy of note that the trial Court in reaching this conclusion did not exclude any of the 3 parcels of land claimed by the plaintiff/Appellant from that finding. Rather the finding of Court was total and cover all the 3 portions of land claimed by the plaintiffs/Appellants. Having made this significant finding in respect of the 3 portions of land, the subject of claim, the trial Court rather, was in error when it made a U-turn in relation to the third portion of the land to refuse the claim of the Appellants.

Before I consider the reasons advanced by the trial Court in its Judgment refusing the claim relative to the third portion of land, which is the subject of this appeal, it is important to note that the defendant/Respondent by his evidence on record only came upon the land in dispute by reason of the custom which allegedly allowed or permitted him to inherit the property of a deceased relative on whom he had performed certain burial rites. In this regard the Respondent contended that he took the responsibility to provide needed burial items for the burial of Katiga (also referred to as Jatau) upon the latter’s demise. Having performed those burial rites, he was, by custom of the land, permitted to inherit the estate of Katiga, including the disputed land even if the deceased was survived by his own biological son. The trial Court while reacting to this claimed custom through which the Respondent came to inherit Katiga, observed that the said native law and custom relied upon by the Respondent was not established by him. See page 117 of the record.

If that is the position of the Court below which indeed is the finding of Court, it follows that this finding knocked the bottom out of the case projected by the Respondent. The basis of his ownership of the land in dispute including the third portion of the land, is rooted in the unproven custom which made it possible of him to inherit the land in dispute. This custom, not having been established by the Respondent it stands to reason that the claim of the Appellants should also succeed with regard to the third portion of the land, to which this appeal relate, regard being had to the evidence adduced by him, in particular evidence of the fact that the Respondent was a tenant on the disputed parcel of land, including the parcel of land now the subject of this appeal and the fact that Katiga through whom the Respondent claimed title, had no land of his own in the disputed area. See the evidence of Pw1, Pw2, Pw3 and Pw4.

One of the reasons which informed the trial Court not to make a declaratory order in respect of the third portion in favour of the Appellants stemmed from the findings of that Court that the defendant/Respondent planted cassava on portion of the land which is enclosed and or surrounded with cactus trees. Hear the Court at page 117 lines 23-25 of the record thus:-

“The only evidence of the defendant which is not contradicted is the evidence of Dw2, who said that the defendant had exercised acts of ownership on the portion of the land along Bahuli road by planting cassava and enclosing it with cactus trees.”

It has been argued and I agree with the Appellants or their counsel that the above stated finding of fact by the Court below is/was not borne out of evidence of Dw2 (Mathew Tumba or Mathew Tabau). His Statement on Oath as adopted by him (Dw2) is at page 31 of the record. His evidence under cross-examination is at page 88 of the record. I cannot find anywhere in the record where the finding under reference can be linked to the evidence of Dw2. In my view, that finding of the trial Court is perverse. A perverse finding is a finding of fact which is speculative and not based on any evidence before the Court. A perverse finding is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial Judge. See: Iwuoja Vs Nipost (2003) 8 NWLR (Pt. 822) 308 or (2003) 4 SC (Pt. 11) 118. This finding of the Court cannot therefore be the basis for the trial Court to refuse making a declaratory order for title in favour of the Appellants relative to the third portion of land claimed by them. The lone issue, is in effect resolved in favour of the Appellants. The appeal succeeds and same is allowed hence that portion of the decision of the trial Court refusing to declare title for the plaintiffs/Appellants in respect of one of the portions or the third portion of the land in dispute is set aside.

An Order for declaration of title is hereby entered and granted to the Appellants in respect of all the three (3) portions of land in dispute, including the third portion. In effect the Respondent is restrained from carrying out any activity on all or any of portions of land.

I assess Cost in the sum of N80, 000. 00 in favour of the Appellants and against the Respondent. Ordered accordingly.

OMOLEYE, JCA

I had the privilege of reading in draft form the leading judgment just delivered by my learned Brother, Saidu Tanko Husaini, JCA, in this appeal.

I am at one with His Lordship that the appeal is imbued with merit and also allow it. I equally abide by the consequential orders made in the said leading Judgment, including that of costs.

ABIRIYI, JCA

I agree.

Appearances:

Roland C. Emem, Esq. For Appellant(s)

M. S. Ibrahim, Esq. (Mrs.) with him, J. A. Udeagbala, Esq. For Respondent(s)