JALA & ORS v. JALA & ORS

CITATION: (2017) LPELR-43320(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON MONDAY, 3RD JULY, 2017Suit No: CA/J/322/2016

Before Their Lordships:

AHMAD OLAREWAJU BELGORE Justice, Court of AppealFATIMA OMORO AKINBAMI Justice, Court of AppealPAUL OBI ELECHI Justice, Court of Appeal

Between1. ALH SAIDU GARIN JALA2. HAJARA DADAYE ABUBAKAR3. ZAINAB A ABUBAKAR4. HAJARA ABUBAKAR5. MOHAMMED BILAL ABUBAKAR

- Appellant(s)

And1. MUSA GARIN JALA2. SALISU MOHAMMADU JALA3. AHMED TETE JALA4. ADAMU ABAYA5. ABUBAKAR HASSAN JALA6. HARUNA ALI JALA7. YUSUF MELE JALA8. YUNUSA ALELE JALA9. ADAMU MAMMAN JALA10. IBRAHIM JEJE JALA11. JALA DEDE12. AHMADU ABAYE13. BAPPA MOHAMMADU14. IBRAHIM ARASIKE15. DEDE NYAKO

- Respondent(s)

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RATIO DECIDENDI1. COURT - DUTY OF JUDGE: Duty of a judge to make correct

evaluation of facts"This observation by the learned trial judge is very unfortunate tosay the least. Judicial Officers as Ministers in the temple of Justicehave a duty to make correct evaluation of facts before them. Byso holding, the learned trial judge erred in law and that led himinto a wrong conclusion and thence the judgment underappeal."Per ELECHI, J.C.A. (P. 19, Paras. B-C) - read in context

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2. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whomlies the burden of proof in a claim for declaration of title to land"Under this issue, it is the law that in a claim for declaration oftitle to land, the claimant has the burden to establish his claim,and it is not open to him to rely on the weakness of thedefendant's case, save where such weakness, supports his claim,in which case he can rely on it to strengthen his evidence. Theduty required of the plaintiff is to lead credible evidence whichsatisfies the Court that he has a better title than the defendant.See Kaiyaoja & Ors v. Egunla (1974) 12 S.C. 55, Kodilinye v. Odu(2003) 36 WRN 175; (1935) 1 NWLR 231; (1935) 2 WACA 336 andsee Fabunmi v Agbe (1985) 3 SC 28.The claimant must rely on the strength of his own case, and noton the weakness of the defendant's case. Thus, if he fails todischarge the onus, the weakness of the defendant's case will nothelp him and his claim will be bound to be dismissed. See Bello wEweka (1987) 1 S. C 101; (1981) 12 NSCC 48, Aromire v.Awoyemi (1972) 2 S.C. 1 at 11; (1972) 1 ALL NLR (pt. 1) 101;(1972) 7 NSCC 112, Ezeigwe v. Awudu (2008) 43 WRN 179;(2008) ALL FWLR (PT. 434) 1529; (2009) 11 NWLR (Pt 1097) 158,Eyo v. Onuoha (2011) 11 NWLR (PT 1257) 1, EYA V. OLOPADE(2011) 11 NWLR (PT 1259) 505 AT 525; (2011) 5 SCNJ 98,Iroagbara v Ufomadu (2009) 30 WRN 1; (2009) ALL FWLR (pt.481) 843; (2009) 6 SCNJ 183; (2009) 11 NWLR (pt. 1153) 587 at603, Ukaegbu v, Nwololo (2009) 12 WRN 1; (2009) 1 NSCQR 21;(2009) 1 NSCQR 21; (2009) 1-2 MJSC 98; (2009) 1 SCNJ 49;(2009) 3 NWLR (pt. 1127) 194 at 231-232 and Ayanwale v.Odusami (2012) 3 WRN 1; (2011) 18 NWLR (pt. 1278) 328 at 341.The burden rests throughout on the plaintiff and never shifts. Theonly duty of the defendant is merely to defend, unless wherethere is a counter-claim. See Awuzie v. Nkpariama (2002) 1NWLR (pt. 747) 1 at 9-10, Nruamah v. Ebuzoeme (2013) ALLFWLR (pt. 681) 1426 at 1442, paragraph E where Ariwoola, JSCstated that:"There is no doubt, that in an action for determination of title,where the defendant does not file a counter-claim, the burden isheavier on the claimant to prove his title to the land in dispute.The defendant certainly has no duty to prove his title to the sameland in dispute..."Per ELECHI, J.C.A. (Pp. 12-13, Paras. A-E) - readin context

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3. EVIDENCE - PROOF OF TITLE TO LAND: Ways of provingtitle/ownership of land"It is therefore incumbent that for a claimant to succeed in thedeclaration sought, he must satisfy the Court on the evidenceadduced that he is entitled to the declaration sought. This he cando by establishing title under any of the five ways of doing same.It is in view of that we have under the Nigeria Legal system that aclaimant or a plaintiff in an action for declaration of title to land,may discharge the burden on him by leading credible evidenceestablishing same on any of the following ways:(a) By traditional evidence;(b) By production of documents of title duly authenticated andexecuted;(c) By acts of ownership extending over a sufficient length oftime numerous and positive enough as to warrant the inferencethat he is the owner of the land;(d) By acts of long possession and enjoyment of the land;(e) By proof of possession of connected or adjacent land incircumstances rending it probable that the owner of suchconnected and adjacent land would in addition by the owner ofthe land in dispute.It should be noted that, the plaintiff is not required to plead andprove all the five ways stated above. He may succeed in provinghis claim by one or more of the five methods. See Nruamah v.Ebuzoeme (supra) at page 144 paragraphs F-H, Idundun v.Okumagba (2000) 20 WRN 127; (1976) 1 NMLR 200; (1976) 1NMLR 200; (1976) 10 NSCC 445; (1976) 9-11 S.C, 227."PerELECHI, J.C.A. (Pp. 13-15, Paras. F-A) - read in context(2

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4. EVIDENCE - CALLING OF WITNESS(ES): Whether a party isbound to call a particular number of witnesses"The Respondents contend that the failure of the Appellants tocall their boundary neighbours to testify is fatal to their case.Whether or not the Appellants called their boundary neighboursdoes not call for any attention. There is no rule of law or practicewhich prescribes for a party which witness to call or document totender in proof of his case. Similarly, no rule of law prescribes ormakes it mandatory that a party to a proceedings must himselfappear in person to testify or tender the document he relies on.So long as he is able to adduce sufficient evidence which satisfiesthe Court, his case would have been proved. See Shittu vFashawe (2005) 7 SCNJ 337, (2005) ALL FWLR (pt 278) 1071Onwujuba & Ors v. Obienu & Ors (1991) LPELR-2717 (SC). Even incriminal case, the prosecution is not under any obligations to callevery witness to testify. See Babuga v The State (1996) 7 NWLR(Pt 460) 279, Adaje v State (1979) LPELR-70 (SC). So thesubmission by the Respondent that the Appellant did not call aparticular set of witnesses is of no moment and is herebydiscountenanced."Per ELECHI, J.C.A. (Pp. 19-20, Paras. D-C) - readin context

5. LAND LAW - TITLE TO LAND: Ways of acquiring title to land"The above methods of proving title to land have nothing to dowith the modes of acquiring title to land which may be by:(a) First settlement on virgin land and deforestation of the land;(b) Conquest during tribal wars;(c) Gift;(d) Grant-customary;(e) Sale;(f) Inheritance; etc.(Ajiboye v. Ishola (2006) 13 NWLR (pt. 988) 628; Idundun v.Okumagba (1926) 9-10 SC 277; Nkado v. Obiano (1997) 5 NWLR(pt. 503) 31."Per ELECHI, J.C.A. (P. 15, Paras. A-D) - read incontext

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6. LAND LAW - ROOT OF TITLE: How to prove root of title to land"In land matters, it is easy for a plaintiff to claim that he ownedthe land from time immemorial. But that is not the end of thestory. The plaintiff must go further and paint a genealogical treeof the family ownership of the land. The genealogical tree isusually a line story of members of the family in ownership of theland from past to present. The plaintiff must paint a picture ofgenealogical lines and names spreading like the branches of atree, telling a consistent story of undisturbed ownership orpossession of the land. The said flowing story should first be toldin the pleadings and should mention specific persons asancestors before the witnesses give evidence in Court tovindicate the averments in the pleadings.In the instant case, the Appellants put forward their case beforethe lower Court with direct cogent and credible evidence in proofof their claim of title through inheritance. It is settled law that aclaim of title through inheritance must be accompanied bysufficient facts showing and proving(a) Who founded the land in dispute(b) How they founded the land and(c) The particulars of the intervening owners through whom heclaims.This is so because, the method of establishing title to land bytraditional history/evidence recognizes that land owned by anoriginal founder can later be owned by some other person orpersons by inheritance, grant, purchase or other means.However, it is incumbent that a person or persons relying ontraditional history/evidence in the proof of his title to landamongst others must plead the particulars of the interveningowners through whom he or they may claim."Per ELECHI, J.C.A.(Pp. 15-16, Paras. D-F) - read in context

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PAUL OBI ELECHI, J.C.A. (Delivering the Leading

Judgment): This is an appeal against the decision of

Honourable Justice J.W. Jauro of the Yobe State High Court

(Potiskum Judicial Division) delivered on the 29th day of

July, 2016 wherein the trial Court delivered it's Judgment

against the appellant.

The Appellant being aggrieved by the decision of the trial

Court, appealed to this Honourable Court filing 3 grounds

of appeal and formulating one issue for determination.

The Appellants story is that they inherited the farmland

subject matter of this appeal from their father about 56

years ago. That after the demise of the father of the

appellants, the 1st appellant was taking care of by his uncle

Ibrahim Dumza Chesu, away from Garin Jala and settled at

Bilal, Dambam and entrusted the farmland in dispute to

Bulama Abaye. That after some years when the 1st

appellant and his uncle requested for the farmland they

gave in trust but the respondents informed them that they

cannot give him the farmland as they have no alternative

farmland.

The respondents denied the claim, that at no time did the

appellants request a farmland from

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the respondents as the two farmlands in the respondents

possessions have always been in their possession and that

the respondents are not trustees to any farmland and have

never been trustees to any farmland on behalf of the

appellants or anyone else.

The appellants in support of their case at the lower Court

called a total number of five witnesses and tendered three

exhibits (Exhibits SGJ 1-3 respectively) and closed their

case. The respondents also called nine witnesses but

tendered no exhibit and also closed their case. A visit to

Locus in quo was also conducted and evidences were taken

from both sides. The Court recorded his observations.

The lower Court after evaluating the evidence adduced by

both parties held that the appellants have failed to prove

title to the land in dispute and dismissed the suit. The

appellants were dissatisfied with the judgment of the lower

Court and appealed to this Honourable Court. See pages

122-125 of the appellant submitted that the lone issue for

determination in this appeal is:

"Whether or not the lower Court was right when it held

that having regard to the totality of the evidence of the

plaintiff, the

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suit is bound to be dismissed and accordingly dismissed the

suit (distilled from grounds 1, 2, & 3).

It is submitted on behalf of the Appellants from the lone

issue that from the pleadings, evidence adduced by the

appellants and the observations made by the lower Court at

the Locus in quo that the appellants have proved their case.

The lower Court was therefore wrong when it dismissed the

suit of the appellants. Equally, it was also submitted that

ownership or title to land may be proved by any of these

five methods, viz:

(a) By traditional evidence;

(b) By production of documents of title, which are duly

authenticated;

(c) By acts of selling, leasing, renting out all or part of land

or farming on it or on a portion of it.

(d) By acts of long possession and enjoyment of the land

and

(e) By proof of possession of connected or adjacent land

and circumstances rendering it probable that the owner of

such connected or adjacent land would in addition be the

owner of the land in dispute. See Idundun vs. Okumagba

(1976) 9-10 SC 227.

Also for the appellants, that the law is settled that the

modes of acquisition of title to land

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may be by:

(a) First settlement on the land and deforestation of the

virgin land;

(b) Conquest during tribal wars;

(c) Gift;

(d) Grant-customary;

(e) Sale-customary;

(f) Inheritance.

See the case of Ajiboye us. Ishola (2006) 11 MJSC

P. 191 at p. 209 Paras C-F.

Learned Counsel submitted for the appellant that it is the

duty of the plaintiff in an action for declaration of title to

land to adduce sufficient and credible evidence to establish

the mode of acquisition of his title and the law is that the

said plaintiff must succeed on the strength of his own case

and not on the weakness of the defence, although the

plaintiff may take advantage of the defendant's evidence

where it supports his case. See the case of Onwugbufor

vs. Okoye (1996) 1 NWLR (pt. 424) p. 252.

Again that the appellants have put before the lower Court

direct and credible evidence in proof of their claim of title

through inheritance. The law is settled that a claim of title

through inheritance must be 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

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the time it became vested in the claimant. See the evidenceof PW1-PW2 at pages 17-29 of the record as well asExhibits SGJ 1-3 and the case ofKosile vs. Folarin (1989)4 SC (pt 1) 150 at 164.According to learned Counsel, the appellants by thetestimonies on oath have proved the following:(a) The founder of the said farmland in dispute i.e. by thegrandfather-Chesu(b) How the founder founded the land in dispute i.e the saidfounder in person of Chesu originality founded/cleared avirgin land now called Garin Jala alongside his brother jalaand divided the said land into two-Jala by the North fromthe lrriya Tree and Chesu by the South from the sameIrriya Tree.(c) Those who have taken over from them till the presentclaimants i.e. said Chesu, the appellants grandfather has ason named Abubakar Chesu, the said Abubakar Chesuinherited the said farmlands from their late father-Chesuand the appellants inherited the said farmlands in disputefrom their late father (Abubakar Chesu)(d) The plaintiffs/Appellants at the time of the death of theirfather were teenagers, hence they were under the custodyof their uncle in person of Ibrahim Dumza

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Chesu. When leaving Garin Jala, Ibrahim Dumza Chesu

gave subject matter in dispute in trust to some of the

respondents. Upon the plaintiffs/appellants returning to

Garin Jala after some years, they asked the trustees to hand

over their farmlands to them. Some portions were handed

over to them peacefully, some were given back through

amicable settlement, while other by the Order of the Court

as per Exhibits SGJ 2 and 3 and the remaining portions are

the subject matter of his dispute.

Therefore, it is wrong law for a trustee of an estate or

anybody claiming through him, to assimilate the trust

property to his own. Equity will not permit that under any

guise. To say the least, it is gross abuse of office.

It is submitted by counsel that a party seeking 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 pleadings the original founder

of the land, how he founded the land, the particulars of the

intervening owners through whom he claims. With all the

above, the appellants/plaintiffs have put before the lower

Court direct and credible

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evidence in proof of their claim. As 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. See the pleadings at

pages 5 and 6 of the Record, evidence of PW1-PW4 at

pages 17-29 as well as Exhibits SGJ 1-3, the case of

ERONINI VS. IHEUKO (1989) 2 NWLR (PT. 101) 46

AT 67 AND THE CASE OF EKWUNIFE VS. WAYNE

(WEST AFRICA) LTD. (1989) 12 SC 92 AT 102.

The law is settled that a head of a family can take action to

protect family or defend action in respect of family property

even without the prior authority of other members of the

family. So also, any member of a family may take steps to

protect or defend family property or his own interest in it.

See Alhaji Gegele V. Alhaji Layinka and 6 Ors (1999) 3

SCNJ 39 at 45.

In conclusion, learned Appellant's counsel then urged the

Court to resolve this issue in their favour and then allow

the appeal and set aside the judgment of the lower Court.

In trying to establish their own case by way of reply, the

Respondents adopted the lone issue formulated by the

Appellant as their own issue for

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determination. Learned Respondent's counsel submitted

that, the burden placed on a plaintiff by law when seeking

for a declaration of title is to discharge that burden and can

only rely on the strength of his own case and not on the

weakness of the defendant case. See Okelola v Adeleke

(2004) 3 MJSC page 111 at 121-122.

It is an elementary principle of law that a plaintiff can only

be entitled to the reliefs sought in his statement of claim

before a trial Court where he adduces credible evidence to

prove his case and thus discharge the burden. See Section

122 and 134 of the Evidence Act (As Amended),

Purifications Technique Nig Ltd v Jubril (2012) ALL

FWLR (Pt 642) 1657. He referred the Court to the five

established ways of proving ownership to land in the

case of Okeke v Ezike (1993) 4 NWLR pt 290 page

751.

Parties he stated are bound by their pleadings and are not

allowed to deviate from same. Nwano v Obase (2012)

ALL FWLR (Pt 605) 237.

The plaintiff/Respondents failed to establish the facts as

stated in the statement of claim and where the evidence is

at variance with the pleadings, such evidence goes to no

issue as it is contrary to the

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issues joined by the parties. See Okoko v Dakolo (2006)

14 NWLR (Pt. 1000) 401.

Learned Respondent contended that PW1 admitted under

cross examination that all the defendant/Respondents were

sons and grandsons of Jala. He further admitted under

cross-examination that he was not present when the

alleged trust was given and was not even born when the

farm in question had been cleared. PW1 did not even meet

Chesu alive.

On his own part, DW1 gave cogent evidence regarding the

land in dispute and to the fact that he knew both Jala with

Chesu and had indeed lived with them for up to 30 years

prior to their death. Also he denied the fact that the

farmland in dispute had been given to him on trust for the

Appellant. Learned Counsel then submitted that it is only

the evidence of DW1 that is the only evidence before the

Court in relation to the allegation of trust. Learned counsel

contended that the description of the farmland in dispute

do not tally with what the trial Court observed/found during

its visit to the locus in quo as could be seen from pages

12-16 of the Records.

On the boundaries of the farm in dispute, learned counsel

submitted that the

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Appellants have a duty to describe with precision, the exact

boundaries of the land which they have failed to do. See

Imah v. Okegbe (1993) 72 SCNJ 57. As a result, the trial

Judge was right when it held that the Appellants have failed

to establish their claim. The Appellant never called their

boundary neighbours PW1 and PW2 gave evidence that is

not in conformity with that of PW3 that is completely

different from that of PW1 & PW2. The failure of the

Appellant to describe with precision the boundaries of the

land in dispute is fundamental and therefore the trial judge

was right when he held that the Appellant failed to

establish their claim. See Shoshai Gambo v. Zindul

Turdam (1993) 6 NWLR (pt 300) 500. The neighbours

who share common boundary like Alhaji Ishiaka and Audu

Salawali ought to have been called as witnesses. By not

calling then, learned Respondent invoked Section 167(d) of

the Evidence Act 2011.

In conclusion, learned Respondent Counsel stated that from

the records the following are clear.

(i) That the Appellant could not properly describe the

boundaries of the land in dispute before the trial Court.

(ii) The Appellant failed

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to trace their root of title to the person they were alleging

before the trial Court, was the first person who first settled

on the land as there is no where before the trial Court

where Appellant adduced evidence on how the land

devolved on the family over the years until it became the

Appellants exclusive property now subject to incidence of

customary ownership. See Apeh Akpa v. Aboyi Itodo

(1997) 5 NWLR (pt. 506) 589.

Inspite of the fact that there are about 59 different farms

on the disputed land, not all their owners were joined in the

suit.

As a result, learned Respondent's Counsel then submitted

that all the parties who may be affected one way or the

other in the litigation must be made parties in the suit. See

Onabanjo v. Ewetuga (1993) 4 NWLR (Pt. 288) 455.

In view of the above, he then urged the Court to resolve the

issue in their favour and finally to dismiss the appeal as

lacking in merit.

In resolving the lone issue in this appeal, that is:

"Where or not the lower Court was right when it held that

having regard to the totality of the evidence of the plaintiff,

the suit is bound to be dismissed and accordingly dismissed

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(distilled from grounds 1, 2, 7 3).

Under this issue, it is the law that in a claim for declaration

of title to land, the claimant has the burden to establish his

claim, and it is not open to him to rely on the weakness of

the defendant's case, save where such weakness, supports

his claim, in which case he can rely on it to strengthen his

evidence. The duty required of the plaintiff is to lead

credible evidence which satisfies the Court that he has a

better title than the defendant. See Kaiyaoja &

Ors v. Egunla (1974) 12 S.C. 55, Kodilinye v. Odu

(2003) 36 WRN 175; (1935) 1 NWLR 231; (1935) 2

WACA 336 and see Fabunmi v Agbe (1985) 3 SC 28.

The claimant must rely on the strength of his own case, and

not on the weakness of the defendant's case. Thus, if he

fails to discharge the onus, the weakness of the defendant's

case will not help him and his claim will be bound to be

dismissed. See Bello v Eweka (1987) 1 S. C 101; (1981)

12 NSCC 48, Aromire v. Awoyemi (1972) 2 S.C. 1 at

11; (1972) 1 ALL NLR (pt. 1) 101; (1972) 7 NSCC 112,

Ezeigwe v. Awudu (2008) 43 WRN 179; (2008) ALL

FWLR (PT. 434) 1529; (2009) 11 NWLR (Pt 1097)

158, Eyo v. Onuoha (2011) 11

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NWLR (PT 1257) 1, EYA V. OLOPADE (2011) 11

NWLR (PT 1259) 505 AT 525; (2011) 5 SCNJ 98,

Iroagbara v Ufomadu (2009) 30 WRN 1; (2009) ALL

FWLR (pt. 481) 843; (2009) 6 SCNJ 183; (2009) 11

NWLR (pt. 1153) 587 at 603, Ukaegbu v, Nwololo

(2009) 12 WRN 1; (2009) 1 NSCQR 21; (2009) 1

NSCQR 21; (2009) 1-2 MJSC 98; (2009) 1 SCNJ 49;

(2009) 3 NWLR (pt. 1127) 194 at 231-232 and

Ayanwale v. Odusami (2012) 3 WRN 1; (2011) 18

NWLR (pt. 1278) 328 at 341 . The burden rests

throughout on the plaintiff and never shifts. The only

duty of the defendant is merely to defend, unless where

there is a counter-claim. See Awuzie v. Nkpariama

(2002) 1 NWLR (pt. 747) 1 at 9-10, Nruamah v.

Ebuzoeme (2013) ALL FWLR (pt. 681) 1426 at 1442,

paragraph E where Ariwoola, JSC stated that:

"There is no doubt, that in an action for determination of

title, where the defendant does not file a counter-claim, the

burden is heavier on the claimant to prove his title to the

land in dispute. The defendant certainly has no duty to

prove his title to the same land in dispute...”

It is therefore incumbent that for a claimant to succeed in

the declaration sought, he must satisfy the Court on

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the evidence adduced that he is entitled to the declaration

sought. This he can do by establishing title under any of the

five ways of doing same. It is in view of that we have under

the Nigeria Legal system that a claimant or a plaintiff in an

action for declaration of title to land, may discharge the

burden on him by leading credible evidence establishing

same on any of the following ways:

(a) By traditional evidence;

(b) By production of documents of title duly authenticated

and executed;

(c) By acts of ownership extending over a sufficient length

of time numerous and positive enough as to warrant the

inference that he is the owner of the land;

(d) By acts of long possession and enjoyment of the land;

(e) By proof of possession of connected or adjacent land in

circumstances rending it probable that the owner of such

connected and adjacent land would in addition by the

owner of the land in dispute.

It should be noted that, the plaintiff is not required to plead

and prove all the five ways stated above. He may succeed

in proving his claim by one or more of the five methods.

See Nruamah v. Ebuzoeme (supra) at page 144

paragraphs

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F-H, Idundun v. Okumagba (2000) 20 WRN 127;

(1976) 1 NMLR 200; (1976) 1 NMLR 200; (1976) 10

NSCC 445; (1976) 9-11 S.C, 227."

The above methods of proving title to land have nothing to

do with the modes of acquiring title to land which may be

by:

(a) First settlement on virgin land and deforestation of the

land;

(b) Conquest during tribal wars;

(c) Gift;

(d) Grant-customary;

(e) Sale;

(f) Inheritance; etc.

(Ajiboye v. Ishola (2006) 13 NWLR (pt. 988) 628;

Idundun v. Okumagba (1926) 9-10 SC 277; Nkado v.

Obiano (1997) 5 NWLR (pt. 503) 31.

In land matters, it is easy for a plaintiff to claim that he

owned the land from time immemorial. But that is not the

end of the story. The plaintiff must go further and paint a

genealogical tree of the family ownership of the land. The

genealogical tree is usually a line story of members of the

family in ownership of the land from past to present. The

plaintiff must paint a picture of genealogical lines and

names spreading like the branches of a tree, telling a

consistent story of undisturbed ownership or possession of

the land. The said flowing story should first be told in

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the pleadings and should mention specific persons as

ancestors before the witnesses give evidence in Court to

vindicate the averments in the pleadings.

In the instant case, the Appellants put forward their case

before the lower Court with direct cogent and credible

evidence in proof of their claim of title through inheritance.

It is settled law that a claim of title through inheritance

must be accompanied by sufficient facts showing and

proving

(a) Who founded the land in dispute

(b) How they founded the land and

(c) The particulars of the intervening owners through whom

he claims.

This is so because, the method of establishing title to land

by traditional history/evidence recognizes that land owned

by an original founder can later be owned by some other

person or persons by inheritance, grant, purchase or other

means. However, it is incumbent that a person or persons

relying on traditional history/evidence in the proof of his

title to land amongst others must plead the particulars of

the intervening owners through whom he or they may

claim. In this regard, the Appellants through PW1 and PW2

gave evidence on oath that the original

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founder of the land was their grandfather Sheisu who not

only founded/cleared the virgin land called Garin Jala and

therefrom divided the land into two-Jala by the North from

Irriya tree and Cheisu by the South from the same Irriya

tree.

At page 17 of the records, PW1- "Ibrahim Auta Jala said

that the farmland belongs to the grandfather of the plaintiff

Sheisu. This is because I was there in the village and the

Jala is my father. The farmland was cleared by the

grandfather of the plaintiff Sheisu. Sheisu is now dead. The

father of Alh Saiolu inherited the said farmland. He is

known as Abubakar Gabakau. Abubakar Gabakau later died

also. It is about 56 years now after the death of Abubakar

Gabakau, the uncle to the plaintiff Dumza wanted to go

with the orphans to Ngelzarmar Area. He called Musa,

Muhammadu and Abaye all of Jala as surname. He told

them that he will entrust the.farmland to them as you

would be leaving to Ngelzarma and if he returns, the

farmland to be given to the orphans and where he does not

return let them give the orphans the farmland. I was

present when the said Ibrahim Dumza was entrusting the

farmland to 3 people. There was also one

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Adamu Bundi and Alhamadu Bula and also Alhamadu

Matati (a.k.a Alhamadu Bakano).

Ibrahim Dumza spent about 6 years and returned back with

the orphans and asked for the said farmland from those 3

people he gave to but Yunusa Alele refused to return back

his own. However, some portions were handed over to the

orphans peacefully, some given back through amicable

settlement while others were so released by order of the

Court as per Exhibit SG2, and 3.

A party seeking for a declaration of title and who relies on

traditional evidence of proof of his root of title and plead

same sufficiently especially in this case that the acquisition

of title is by inheritance.

Looking at the evidence of the Appellants on oath, they

have stated that the founder of the farmland in dispute is

by the grandfather. Chesu who cleared the land originally

and called it Garin Jala. Appellants grandfather had a son

named Abubakar Chesu, the said Abubakar Chesu inherited

the said farmlands from their late father- Chesu and the

Appellants inherited the said land from their father

(Abubakar Chesu).

From the above evidence on record from pages 17 to 22, it

is therefore

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surprising how the learned trial judge said in his judgment

at page 91:

"Thus there is no evidence before the Court as to who

founded the land, how he founded it and equally no

evidence of intervening owners up to the plaintiffs."

This observation by the learned trial judge is very

unfortunate to say the least. Judicial Officers as Ministers

in the temple of Justice have a duty to make correct

evaluation of facts before them. By so holding, the learned

trial judge erred in law and that led him into a wrong

conclusion and thence the judgment under appeal.

The Respondents contend that the failure of the Appellants

to call their boundary neighbours to testify is fatal to their

case. Whether or not the Appellants called their boundary

neighbours does not call for any attention. There is no rule

of law or practice which prescribes for a party which

witness to call or document to tender in proof of his case.

Similarly, no rule of law prescribes or makes it mandatory

that a party to a proceedings must himself appear in person

to testify or tender the document he relies on. So long as he

is able to adduce sufficient evidence which satisfies the

Court,

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his case would have been proved. See Shittu v Fashawe

(2005) 7 SCNJ 337, (2005) ALL FWLR (pt 278) 1071

Onwujuba & Ors v. Obienu & Ors (1991) LPELR-2717

(SC). Even in criminal case, the prosecution is not under

any obligations to call every witness to testify. See Babuga

v The State (1996) 7 NWLR (Pt 460) 279, Adaje v

State (1979) LPELR-70 (SC). So the submission by the

Respondent that the Appellant did not call a particular set

o f w i tnes ses i s o f no moment and i s he reby

discountenanced.

On the boundaries of the farmland in dispute, PW2-Alh.

Saidu Garin Jala stated at page 20 of the records.

"…. I know the farmland. The farmland in dispute is

located at Garin Jala by the Southern part, By the

Eastern part, it shared border with Audu Sawalawi

and by the Northern part, there is Bulama Koshi and

a grazing reserve (Burtali). By the Western Part,

there is an ancient defensive wall (Ganuwa)…. "

This is not in keeping with the submission of Respondent

counsel that the Appellants could not properly describe the

boundaries of the land in dispute. In fact, I hold the view

that in view of the above, the Appellants through PW1 and

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especially PW2 fully described the boundaries of the

farmland in dispute. The submission is therefore hereby

discountenanced and the accompanying authorities do not

apply in this case on appeal.

From my own evaluation of the evidence, submission and

exhibits tendered in this matter, the Appeal is highly

meritorious and it is hereby allowed.

Consequently, the judgment of the lower Court in suit

No:YBS/HC/PT/20CV/14 delivered on the 29th day of

July, 2016 is hereby set aside.

I assess and fix cost at N50,000.00 in favour of the

Appellants.

Appeal Allowed.

AHMAD OLAREWAJU BELGORE, J.C.A.: I agree.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

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Appearances:

S.M. Also, Esq. For Appellant(s)

B.M. Salihu, Esq. For Respondent(s)

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