Akaazua Muemue V. Kulugh Gaji & Anor (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

This appeal is against the judgment of the Katsina Ala High Court of Benue State sitting in its appellate jurisdiction delivered on 16th April, 1992, wherefore the decision and orders of the trial Upper Area Court, Vandeikya were set aside and in their place was entered an order striking out the suit filed by the plaintiff (i.e. the appellant in this court).

For purposes of grasping the issues for consideration in this appeal it will be helpful to have recourse to the excerpt of the trial Upper Area Court’s decision as could from the judgment of the appellate High Court that sat on appeal over that decision. It reads thus:

“The defendants (now appellants) were in consequence restrained from trespassing or further trespassing of the disputed land. They shall hand over the possession of the land to the original owners; the court having found them (appellants) to be licensees of the plaintiff/respondent and they had misbehaved themselves by challenging the authority of their overlords”.

Against that decision the respondents before this court appealed to the High Court Katsina-Ala whose decision is now on appeal before us.

The appellant (as plaintiff in the trial Upper Area Court) sought in his claim for the following reliefs:

“(1) A declaration of title to a piece or parcel of farmland lying and situate at Mbaajo of Mbashumba in Mbera District of Vandeikya Local Government of Benue State.

(2) An injunction perpetually restraining the defendants by themselves, their agents, privies, servants or others whomsoever from trespassing in whatever form on the said land.”

It is important to note that the respondents (i.e. the defendants in the trial court) filed a cross-action against the appellant here i.e. the plaintiff at the trial in the same Upper Area Court claiming a declaration of title to the same parcel of land situate and lying in Mbawior in Vandeikya Local Government of Benue State.

Nothing much is said of this matter in the briefs of argument of the parties except that the trial Upper Area Court dismissed the action. The respondents have so far not appealed against the decision.

The facts of this case as gathered from the evidence of the parties are a bit complicated. The plaintiff brought this action in a representative capacity for himself and on behalf of Muemue family. He told the trial Court that one Muemue Akwatomo his father was the founder of the land in dispute. He lived and died on the said land in dispute. The respondent’s father was brought to the land by Ihom Anshungu, appellant’s uncle to be treated of sores or boils that covered his body. The respondent’s father was there allotted land to farm. This action was taken out because the respondents have started to lay claim to the land in dispute and thus have prevented the appellant from exercising his right to farm the land. Also because the respondent have attempted to survey the land with a view to using it to obtain a Certificate of Occupancy. He also said the respondent came from another kindred of Mbawuar called Mbaiwuar and prayed the court that they be sent back from whence they came and hand over the land in dispute to the appellant.

The respondents who were cousins claimed that the land in dispute descended to them by inheritance from their father. They brought a cross-action against the appellant and they told the trial court that their father one Zar Alias Gaji Dumgbe was the founder of the land and that in his life time he exercised all manner of acts of ownership including farming the land, planted trees. They denied that they were licensees on the disputed land. They asserted they exercised their acts of ownership without paying any tributes and that the appellant’s uncle, Ihom sued them in respect of an adjoining land and lost. And that the case was the genesis of this case.

The trial Upper Area Court conducted a locus in quo and gave a considered judgment in the terms of the order as quoted above. The appellate High Court set aside the decision of the Trial Upper Area Court and struck out the suit as being statute-barred.

Against the said decision the appellants have appealed to this court and have outlined their complaints against the decision under 7 (seven) grounds of appeal; they are reproduced without particulars as follows:-

(1) “The learned Justices of the High Court erred in law in holding that there were discrepancies in the boundaries described by the plaintiff in his evidence in open court and the boundaries shown by him on the visit to the locus in quo”. When the discrepancies if any were not material inconsistencies as to affect the plaintiff’s case.

(2) The learned Justices of the High Court erred in law in holding that the plaintiff has failed to prove the boundaries on the land in dispute on the ground that ‘the boundary marks are at variance with those he testified on oath’. When upon a proper evaluation and application the court ought to have held that the plaintiff had proved the identity of the land with certainty.

(3) The learned Justices of the High Court erred in law and thereby came to a wrong decision in holding that the plaintiff’s claim is statute-barred within the meaning of the provisions of the Benue State Limitation Edict No.6 of 1988.

(4) The learned Justices of the High Court erred in law in holding that the Tiv rule of native law and custom that does not recognise prescriptive title is incompatible and repugnant to natural justice, equity and good conscience.

(5) The learned Justices of the High Court erred in law in holding that:

“the titles claimed by the defendants on the one hand are inconsistent with that claimed by the plaintiff on the other hand. The two inconsistent claims are not built on right to inherit upon death or devolution”.

(6) The learned Justices of the High Court erred in law in holding that ‘the dispute at the trial court is not within the contemplation of section 43(1)(e) of the Limitation Edict’.

(7) Judgment is against the weight of evidence.

In compliance with the rules of this court, the parties have filed and exchanged briefs of argument. The appellant identified 4 (four) issues and they are as follows:-

(1) “Whether or not the High Court was right in overturning the trial courts finding that the appellant had established the boundaries of the land he claimed.

(2) Whether the appellant’s claim in the trial court was statute-barred within the meaning of the provisions of the Benue State Limitation Edict No.16 of 1988.

(3) Whether the appellate High Court was right in holding that Tiv native law and custom which does not recognise prescriptive title to land is incompatihle and repugnant to natural justice equity and good conscience; and

(4) Whether the appellate High Court was right in holding that the appellant’s claim in the trial court did not come within the provisions of section 43(1)(e) of the Benue State Limitation Edict No. 16 of 1988.

The respondent has also identified for determination 4 (four) issues and they are as follows:-

(1) ”Whether the appellant established the boundaries of the land he claimed with certainty by oral evidence in thee open court and showed the court the exact features during the visit to the locus quo or whether his evidence a the locus was irreconcilable with his evidence in court.

(2) Whether the appellant’s claim in the trial court was statute-barred within the meaning of the provisions of the Benue State Limitation Edict No. 16 of 1988.

(3) Whether the appellate High Court was right by making reference to section 20(1) and (2) off be Area Court Law applicable in Benue State and section 34(1) of the High Court Law, Cap. 49 of Laws of Northern Nigeria applicable to Benue State in respect of the repugnancy test.

(4) Whether the appellate High Court was right in holding that the appellant’s claim did not come within the provisions of section 43(1)(e) of the Benue State Limitation Edict No. 16 of 1988”.

A careful examination of the issues for determination shows there is nothing to pick or choose between the two sets of issues for determination as formulated by the parties. Both sets of issues are similar in every respect that it would have served the same purpose if the respondent had adopted the issues as formulated by the appellant without much a do. This appeal has to be considered on the set of issues for determination as identified by the appellant.

On the first issue, it is appellant’s contention that there couldn’t have been more authentic evidence of the boundaries of the land in dispute as the one given by him describing all the features that marked the said boundaries. That between Mbaajo and Mbaiwuar was a motorable road running from Tse-Mker to Gboko tarred road to his father’s old settlement, from there turning left to Uainghough stream and that formed the boundary between Mbaajo and Mbaiwuar. And that Uainghough stream also formed the southern boundary. While the eastern boundary terminated with his palm trees. The northern boundary ended with Asugh stream and across the stream was Ihom Anshungu his uncle. On the west was his agricultural farm covered by a right of occupancy. He further contended that the appellate High Court did not show how he abandoned his evidence at the trial for another at the locus and that his evidence of the southern boundary of the land in dispute was corroborated by DW3. See Mustapha Imam v. Ahmadu Bello University (1970) NNLR 39 at 40. He relied on the case of Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67)787, (1987) 11/12 SCNJ 133 at 140 to opine that that piece of evidence by DW3 was supportive of his case. He argued that if there were any discrepancies at all in his evidence they were negligible and not fatal to his case. He noted that both parties knew the disputed land and did not join issue on the identity of the disputed land.

On the second issue, he debunked the use made of the Benue State Limitation Edict No. 16 of 1988 to defeat his claim as statute-barred as the cause action arose after five years when the respondents started to challenge his title by allotting the land in dispute to themselves without permission and when they attempted to survey the land to obtain a Certificate of Occupancy Exhibit ‘E’ – and not outside 10 years as prescribed by the law. He contended against retrospective legislation and that it was not intended to affect existing interest. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 337, (1987) 2 NSCC (Vol. 18) 991 at 993. And that courts lean against legislation that tend to take away accrued rights: See Udoh v. Orthopedic Hospital (1993) 7 NWLR (Pt. 304) 139, (1993) 7 SCNJ (Pt. 11)43.

On the third issue the appellant submitted that the trial Upper Area Court found the respondents, licensees and that native law and custom do not recognise prescriptive rights. The appellant is of the view that S. 34(1) of the High Court Law, Cap. 49 of the Laws of Northern Nigeria, 1963, as applicable to Benue State would not apply on the facts of this case. See Adu v. Kuma (1937) 3 WACA 240; Ayodele v. Olumide (1969) 1 ANLR 233; Agbola v. Abimbola (1969) 1 ANLR 287; Mogaji and Ors. v. Cadbury Nig Ltd (1985) 2 NWLR (pt. 7) 393, (1985) 7 S/C 59 at 158-160; Udeze v. Chidebe (1990) 1NWLR (Pt. 125) 139, (1990) 1 SCNJ 104 at 118 and Atunrase v. Sunmola (1985) 1 NWLR(Pt. 1) 105 at 122-123. And the said case of Ado v Wusu 6 WACA 24 was referred to – where the plaintiff was declared owner despite 200 years of adverse possession.

On the fourth issue it is his contention in the brief that the appellant’s case comes within the provisions of S.43(1)(e) of the Benue State Limitation Edict No. 16 of 1988, as the claim derived from inheritance. And so the claim was unaffected by Edict No. 16 of 1988.

He urged the court to allow the appeal.

The respondent in his reply challenged the appellant for not establishing his southern boundary with certainty both before hearing in court and the locus and urged that the case of Mustapha Imam v. Ahmadu Bello University (supra) should not be followed. He made the point that for a court to grant a declaration of titles, the boundaries of the land in dispute must be certain and that a plaintiff cannot rely on the boundary as made out by the defendant. See Udeze v. Chidebe (supra) at page 159; Awote v. Owodunmi (supra) at 371. He expressed the view that the case of Niger Construction Ltd v. Okugbeni (supra) did not apply. He was critical of the appellant’s evidence at the locus and made the point that it is not the purpose of such a visit to give more weight to the visit to the detriment of oral and documentary evidence both of which proved some hard facts which the observation at the locus cannot support. See Cecilia Oruma v. Abu Oruma and Anor. (1981-82) BNSLRP. 24 at 29.

The respondent has argued upon the appellant’s submissions on issue No.2 that the instant action has become stale by reason of the limitation law – that is S.3 of Edict No. 16 of 1988. Based on the facts before the trial court the cause of action accrued to the appellant over 10 years ago. And S. 3 affects every person and every land in the State; and so the action is indisputably statute-barred. See Fred Egbe v. Adefarasin (1985) 1 NWLR(Pt. 3) 549 at 568-569; Sosan v Ademuyiwa (1986) 3 NWLR(Pt. 27) 241 at 256; Nwadiaro v. Shell Petroleum (1990) 5 NWLR (pt. 150) 344; Kasali v. Lawal (1980) 3 NWLR (Pt. 28) 305 at 314 and 321-323; Akibu v. Opaleye (1974) 1 All NLR (Pt. II) 344 at 356-7. He has in the same breath repudiated the assertion that S. 43(1)(e) of Edict No. 16 of 1988 could serve to protect the instant cause of action as its import was totally misconstrued. That this matter did not on the facts involve questions of inheritance or disposition of property at death as contemplated in S. 43(1)( e) of Edict No. 16 of 1988 he submitted.

Adverting to the third issue that is, on the applicability of S.34(1) of High Court Law of Northern Nigeria Cap. 49 and S. 20(1) and (2) of the Area Court Law, he was in no doubt about their relevance and applicability and that their combined effect is that a native law and custom incompatible with any written law is null and void to extent of its incompatibility. Relating it to the facts of this matter, where a rule of Tiv native law and custom is in conflict with the acquisition of prescriptive rights it would be incompatible with S. 3 of the Limitation Law a written law and therefore null and void. He denounced the decision in Musa v. Awe (1979) FNLR (Vol. 1) 259 as particularly deciding on the native law and custom of the Yorubas on prescriptive rights and not of general application. In other words, that the rule of native law and custom that does not recognise prescriptive title to land is peculiar to the Yorubas and not to Tivs. The respondents have put emphasis on S. 20(1) and (2) of the Area Court Law and S. 34(1) of the High Court Law to contend that their provisions being clear are applicable in the circumstances.

He then urged the Court to dismiss the appeal.

I intend to go into these issues not in the sequence of how the issues for determination have been arranged by the appellant in his brief for obvious reasons. This is so as issues Nos. 2 and 4 raised issues that the instant action is statute-barred. Such an objection as it were goes to the root of this appeal. It is now settled that where the issue of limitation is raised in defence of an action it is only proper that the issue should be addressed first as it makes no sense to decide the merit of a matter that is statute-barred. See Egbe v. Adefarasin (supra).

I now proceed to take issues Nos. 2, 3 and 4 together. The first question to be resolved, on the facts of this matter is to determine when time began to run in this case where the objection has involved the limitation law as a defence. Guided by decided cases, the appellant’s time began to run from the moment the appellant’s right of action has accrued. In the event of a successful plea of limitation law against the appellant’s right of action the instant action becomes extinguished and unmaintainable at law. See Fred Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 559 at 568-569; Sosan v. Ademuwiya (1986) 3 NWLR (Pt. 27) 241 at 216; Nwadiaro v. Shell Petroleum (1990) 5 NWLR (Pt.150) 322. However, before relating the foregoing guides to the instant matter, it seems to me that the appellant’s other more serious contention that limitation law is inapplicable to cases as the instant case has to be disposed of again for obvious reasons that it would be a sheer waste of valuable time to go into the heart of the issue where the plea of limitation would otherwise not avail the respondent as the land in question is subject to native law and custom. The respondent has referred and relied on S. 3 of the Limitation Law of Edict No. 16 of 1988. It stipulates as follows: –

“No action shall be brought by any person to recover any land after the expiration often years-from the date on which the right of action accrued or it first accrued to some person through who he claims, to that person”.

He has also referred to S. 4(1) which enables the court to determine the time of accrual of the right of action. To fortify his case the respondent has highlighted the fact that the right of action accrued to the appellant during Gaji’s lifetime and he died about 20 or 29 years ago according to the appellant’s witnesses. The appellant has given the cause of the action to be the unpermitted allotments of the land in dispute to the respondents people about 5 years to the institution of the action – and coupled with moves to survey the land to enable them secure a Certificate of Occupancy as per Exhibit ‘E’, all these without the appellant’s permission. The trial court at P.58 LL 2-6 and 9-12 of the records found as follows:

“Besides, there is evidence from PW3 (plaintiff) that it was in 1988 when these defendants attempted to survey his land and obtain a Certificate that he took up this suit. However, that before then there has been skirmishes. This was the major cause of the action… I have also read the Limitation Edict, 1988, applicable to Benue State of Nigeria, Section 3 of the Edict and the whole of the Edict itself has no relevance to this case”.

The High Court sitting on its appellate jurisdiction has held contrary to the appellants submission that S. 43(1)(e) has excluded S. 3 of Edict No. 16 of 1988, and has also distinguished the case of Musa v Awe (1979) 1 FNLR 259 P. 267 on the issue of the applicability of prescriptive right to Tiv land and Tiv people. Section 3 above, I must reiterate is inpari materia with S.6(2) of the Limitation Law (Cap. 64) Vol. 3, Laws of Western Nigeria, 1959. The provision of S.6(2) was not directly in issue in the case of Musa v Awe (1979) 1 FNLR 295 as the issue of laches and acquiescence. In that case, the land in dispute was bought in 1962… The action taken by the plaintiff was in 1975 over the transaction of 1962 and was contested to be statute-barred. Babalakin J. (as he then was) in rejecting the proposition held that the defence was misconceived, as title by prescription is not known to land held under Yoruba native law and custom. He referred to the case Akintoye v. Eyiyola (1968) NMLR 92. However the Katisina-Ala High Court sitting over this matter on appeal over this issue differed in opinion by holding that such a rule of native law and custom has no application in Benue State. Secondly that if such a rule of native law and custom existed at all that it ran flaw of S.34(1) of the High Court Law, Cap. 49 of the Laws of Northern Nigeria, 1963, as applicable to Benue State and S. 20(1)(a) and (2) of the Area Court Law (i.e. the repugnancy provisions). And that to the extent that any rule of native law and custom was in defiance of the instant Limitation Law (a written law) it shall to the extent of its repugnancy or incompatibility remain void. The case of Musa v Awe in my view carries considerable weight. And it is with approval that I adopt its conclusion which is reinforced by the decisions in Mogaji v. Cadbury (1985) 2 NWLR (Pt.7) 383; Odekilekun v. Hassan (1997) 12 NWLR (Pt. 531) 56 per Iguh JSC; Taiwo v. Taiwo (1958) SCNLR 244,80 (1958) 1 NSCC 4.7. In Odekilekun case (supra) Igu JSC said at P.77 paragraphs B-H “I think it ought to be pointed out on this issue of adverse long possession that it is trite that title by prescription is completely unknown under Customary Law”. I adopt the restatement of law as correct; decidedly, it forecloses the contention in the matter.

My timely observation in this respect is that it is most unhelpful to have had recourse to S. 34(1) and S. 20(1)(a) and (2) above in the consideration of this matter by the appellate High Court. Their application of the provisions of S.34(1) and S.20(1) and (2) here is rested on an erroneous premise. Unfortunately, there is no evidence on record that the appellate High Court’s attention was even drawn to the cases cited above. In Mora and Ors. v Nwalusi and Ors. (1962) 2 SCNLR 73, 3 (1962) 1 ANLR 683 P.C., it was held that there is in Nigeria no law corresponding to the English Rule of prescription. The decision by Privy Council has remained binding and is relevant here even though the matter in issue concerned a land dispute between Awka and Amawbia now in Anambra State. Again, even though the dictum is quite wide in its import it is my view that the decision in Mora v. Nwalusi is unequivocal so that it has to be rebutted by the party asserting the contrary. This principle is clearly borne out in Udeakpu Eze v. Samuel Igiliegbe WACA 61. The trial Upper Area Court at P. 64 LL9-11 stated in unequivocal terms thus:

“If we admit like I do then, how can a ward or a servant dispute title with the real owner? It is unheard of and prescription is untenable under Customary Land Tenure”.

This pronouncement is tenable. Besides, Upper Area Courts are manned by Judges versed in their custom. See Ehioghae v. Ehioghae (1964) NMLR 30. For all this, and particularly based on the clear pronouncement by the Privy Council in Mora v. Nwalusi (supra) and the immediate foregoing quote of the findings of the trial Upper Area Court, it appears to me with respect, that the appellate High Court was labouring under a misapprehension in arriving at the conclusion it reached on acquiring title by prescription at Native Law and Custom vis-a-vis S. 34(1) and S.20(1)(a) and (2) above. There was no evidence to that effect by the respondent. The conclusion was without doubt erroneously premised. See Larinde v. Afiko (1940) 6 WACA J08; Giwa v. Erinmilokun (1961) 1 SCNLR 377, (1961) 1 ANLR 294. I agree with the Upper Area Court that title by prescription is untenable under Tiv Native Law and Custom. This finding in the circumstance has not been found to be pervesed nor is there any justification for interfering with the conclusion moreso as the trial court was quite competent to make the finding. See Silli v. Mosoka (1997) 1 NWLR (Pt.479) 98. Noteworthy is that there are no accepted facts from which title by prescription under Tiv land tenure could be inferred.

As regards S. 43(1)(e) of Edict No. 16 of 1988 on having excluded the application of S. 3 of Edict No. 16 of 1988 in this case based on its peculiar facts, I have to agree with the respondent that is founded on a misconception by the appellant when he submitted that since parties traced their interests in the land in dispute by devolution from their respective progenitors, that is, by inheritance that this matter came within the provision of S. 43(1)(e). However, S. 43(1)(e) excludes:

“Any matter which subject to the jurisdiction of a Customary Court or Area Court relating to marriage, family status, guardianship of children, inheritance or deposition and property on death”.

The above provision is clear and should be construed literally. Inheritance as contemplated under the said provision of S. 43(1)(e) would affect by its wordings only members of one family contesting over the disposition of inheritance of the property of a common progenitor on death and not as in this case where two distinct families are disputing over ownership of land. It therefore follows that section 43(1)(e) is clearly not material in considering S. 3 as it affects the appellant’s right of action in this matter.

That said, I now turn to the crux of this matter on the appellant’s right of action being statute-barred by S. 3 of the Limitation Law of Edict No. 16 of 1988. The provision has been set forth herein-before. Without specifically deciding whether the limitation law applies or not, there can be no doubt that upon the findings of fact by the trial Upper Area Court and which have not been disturbed by the appellate High Court that the acts of cause of action that immediately precipitated the instant action have fallen within the ten years time limit as provided in the limitation law. I have listed these acts hereinbefore, all the same they comprise essentially;

(1) That the respondent started about five years to the institution of the instant action to allot the land in dispute to themselves without permission; and

(2) That the respondent had started to survey the land in dispute preparatory to applying for a Certificate of Occupancy.

The Upper Area court found these acts as the acts that gave rise to the action and they constituted a challenge to the appellant’s right of ownership over the land in dispute.

In other words, the appellant’s right of action accrued about 5 years to the institution of this suit. Meaning that the action was commenced within the time limit allowed by the limitation law. It is not denied that there were before these acts some skirmishes between the parties. If I may say, the High court has not interfered with these findings of facts even though it did high weight some other acts of the respondents that posed challenges to the appellant’s interest in the disputed land.

My view is that these findings of facts by the trial Upper Area Court are solid and supported by the evidence adduced in the case and accepted by the trial Upper Area Court. The inferences drawn therefrom are sustainable and this court cannot intervene in the matter. See Silli v. Mosaka (1997) 1 NWLR (Pt. 479) 98. The appellant’s right of action, therefore is not caught by S. 3 of the Limitation Law of Edict No. 16 of 1988. In other words, the defence of Limitation does on the facts of this matter avail the respondents so that issues Nos. 2, 3 and 4 are hereby resolved in favour of the appellant.

On the outstanding issue for determination that is, issue No.1. The contention here is whether or not the appellant has established with certainty the boundaries of the land in dispute, he claimed. In this regard he is obliged to tender oral evidence of the boundaries that would enable a surveyor produce a plan of the land in dispute or tender a plan of the land in dispute instead showing as it were, the boundary features. Where the appellants failed in this regard his claim must as a matter of law be dismissed. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 159; Awote v. Owodunmi (1987) 2 NWLR (Pt. 57) at 366 and 371. In Udeze v. Chidebe (supra) the Supreme Court considered the issues of identity and boundaries of the land in dispute in the cited case and held as per Nnaemeka-Agu JSC:

“It has of course been stated in a number of decided cases beginning from Baruwa v. Ogunsola (1938) 4 WACA 159 that the first duty of a person who comes to court for a declaration of title is to prove the area over which he claims with certainty.

I believe the law should be regarded as settled that although a plan may not be necessary in cases where the identity and precise boundaries of the piece or parcel of land in dispute are known to the parties to the dispute (for which see Chief Daniel Allison Ibuluya and Ors. v. Tom Bebebo Dikibo and Ors. (1976) 6 SC97 at 107; also Chief Sokpui v. Chief Agbozo (1951) 13 WACA 241 at 242) where as in this case there is a dispute as to the boundary or identity on both side must be proved with certainty”.

I have taken pains to set forth the above excerpt of the judgment in the cited case as it contains the guiding principles to be resorted to in resolving this matter.

The respondent’s main objection under issue No. 1 are three namely:

(1) That the appellant failed to ascertain with certainty the southern boundary;

(2) That the appellant could not rely on DW3’s evidence as to southern boundary to prove his case; and

(3) That the appellant’s evidence in court varied with his evidence at the locus.

The trial Upper Area Court took these issue head on at P. 64 LL 14-25 and LL 32 the trial court stated thus:

“The parties themselves showed what was disputed. How then can it be said that what they dispute is unknown to them?…

These are people living within same locality and sharing boundaries. Their misplacement of boundary marks should not be so serious. The land was traced at the boundaries by this court and detailed notes were taken in the presence of counsels. It is in this regard that I say the land is well described. The inspection notes are contained in the record of this court”. At LL 32-38 it said thus:

“In the case, the plaintiff defined his land. This was made in his affidavit in support of his motion for an interlocutory application to restrain the defendants from alienating or surveying the land for the purpose of a Certificate of Occupancy. It is evidence before this court, which can be used. The plaintiff also work on the description while he took oath and gave oral evidence before this court”.

What is evident from a summation of these findings as to the identity and boundaries of the land in dispute is that if there were any discrepancies at all that they were neglible and that the parties knew the land they were litigating over and that a plan was therefore dispensable. Any reference to S. 61 Area Court Law by the trial court to booster its finding was with respect an overstatement as it is inapplicable. It caused no harm nor occasioned any miscarriage of justice. The High Court sitting on appeal reversed the trial Upper Area Court on the issue of boundaries of the disputed land. It concluded that there were discrepancies in the boundaries as described by the appellant in the open court and at the locus particularly with the southern boundary which the appellant gave as Uainghough stream but was not so shown at the locus.

It is settled that a plaintiff has to succeed in matters as the instant one on the strength of his case and that to do so he has to establish his case on the basis of preponderance of evidence.The trial Upper Area Court found that the appellant discharged this burden and expressed its view as follows at P. 64 LL. 39-42 and P. 6 LL 1-16

“The defendants have failed to conclusively give proof of their traditional history of this land.

They are not even sure the first founded the land. Whether Dumgbe, Zar alias Gaji, Muemue or Gaji Gyak. The plaintiff on the other is consistent that his father Muemue Akwatondo founded the land. Plaintiff has adjoining lands south, west and north of the land. His late father has three desolates surrounding the land. He has a school beside this land in the south. His wife is one of the desolate of the father beside the land in the south. Ahile Muemue is west and Ahangba Thorn at the north. Dumgbe the progenitor of the defendants died and was buried away from this land. Ikangar Tii was brought and treated on the land and has gone back. Akazer Kegh is allowed land by lhus relations of plaintiff near the land. Dzar himself was a ward to Muemue. This has not been denied. How else can plaintiff prove his claim over this land, putting the two claims on an imaginary scale, I would hold that plaintiff has proved his case to entitle him to judgment on the preponderance of evidence. He must succeed. He succeeds. The claims of the defendant over the land fails”.

These findings and conclusions are not only logical they are solid findings and conclusions that have foundation in the evidence of the appellant and his witnesses. The inferences from the accepted facts were properly drawn in the circumstances. The findings were not perverse and so there were no reasons to justify the High Court’s intervention to substitute its view. The respondent’s traditional history cannot stand against the appellant’s preferring the appellant’s traditional history is therefore well grounded. With regard to the discrepancies in the appellant’s evidence as to the boundaries apart from the discrepancies as to the southern boundary, the High Court sitting on the appeal could not give details of any of the other discrepancies. Having reached the above conclusion after perusing through the record, I am in agreement with the trial Upper Area Court that the identity and boundaries of the land in dispute were not in any serious contention. There is no disputing the fact that the parties lived in the same locality sharing common boundaries. The locus was visited by the parties and their counsel and the land in dispute was identified and its boundaries marks identified. Again, issues were not joined on identity and boundaries of the land in dispute. From the above findings of the issues of the southern boundaries appears settled. The parties knew the land over which they were litigating. See Chief Daniel Allison Ibuluya and Ors. v. Tom Denebo Dikibo (supra) and Okpui v. Agbozo (supra). I am in complete agreement with the trial court that the appellant is entitled to his reliefs as per his claim.

The appeal is meritorious and is hereby allowed. The net result of this is that the judgment of 16/4/92 of the Katsina-Ala High Court sitting in its appellate jurisdiction in this matter is hereby set aside. In its place is restored the judgment of the trial Upper Area Court as per the claim. The order that the defendants hand over possession of land in dispute is hereby vacated as having been made without jurisdiction as it is not claimed. The appellant is entitled to costs of this appeal assessed and fixed at N4,000.00.

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Other Citations: (2000)LCN/0888(CA)