Kaburu Pada V. Woya Galadima & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This appeal is against the judgment of Court of Appeal, Abuja division of (the Lower Court) delivered on 17th day of January, 2006 which upturned the decision of High Court of Niger State (the trial Court) delivered on 29th March, 2004.

At the trial Court, the appellant as plaintiff, instituted an action claiming the underlisted reliefs against the defendant now respondent, namely:-

A. A declaration of right of occupancy to that piece and parcel of land being, lying and situate at Pyagun Village via She within the jurisdiction of the court more particularly described in paragraph 6 above.

B. An order of interim injunction restraining the defendant, his agents, privies and or servants from committing further trespass and or from dealing or interfering with the plaintiffs right in any manner that will prejudice and or adversely affect the plaintiffs claim of right of occupancy and possession of the aforesaid land.

C. The plaintiff claims substantial cost against the defendant.

FACTS OF THE CASE

The case pertains to a land dispute related to a parcel of land

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situate at Pyagun village in Shiroro Local Government Area of Niger State. The plaintiff now appellant, claimed that he inherited the land in dispute from his father Pada Dami Dami who allegedly loaned same to the defendant, (respondent) many years ago. Upon the demise of appellant’s father about 7 to 10 years ago (i.e during the pendency of the suit before the trial High Court), the appellant tried to repossess the said land from the defendant/ respondent without success. Sequel to that, he commenced the suit to recover the land in dispute.

On the other hand, the defendant now respondent, also claimed to have inherited the said land from his father (Maimalo), whom he alleged had founded the said land many years ago. At the trial, the defendant/respondent adduced evidence to show that he had been in exclusive possession for so many years. He also adduced evidence of planting economic trees thereon. The appellant/plaintiff also called witnesses in proof of his title to the land in dispute. Suffice it to say however, that the defendant did not file any counter claim. At the end of the proceedings, the trial Court found in favour of the plaintiff/appellant. Aggrieved by the decision of the trial Court, the defendant (respondent) successfully appealed to

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the Lower Court which upturned the decision of the trial Court and gave him possession of the land in dispute.

Piqued by the decision of the Lower Court, the appellant has now appealed to this Court, vide a notice and ground of appeal dated 20th day of March, 2006 containing five grounds of appeal.

In compliance with the rules and practice in this Court, parties filed and exchanged briefs of argument. To that effect, the appellant filed his brief of argument on 13th March, 2009 dated the 10th March, 2009, but deemed filed on 13th July, 2010. In the said Appellant’s brief of argument which was settled by one Ibrahim Idris Esq., four issues were proposed for the determination of the appeal which said issues are reproduced hereunder:-

1. Whether the Court of Appeal was right to have set aside the decision of the Trial Court awarding title of the disputed land to the Respondents when there was no legal basis for doing so (Grounds 1 and 4 of the Notice of Appeal)
2. Whether the inconsistencies or contradictions in the evidence of the appellant’s witnesses are substantial and material to warrant rejecting (sic) of their evidence by the Lower

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Court (See Ground 2 of the Notice of Appeal)

3. Whether in the light of state of the pleadings, and Appellants evidence before the trial Court, the Lower Court was right to have held that the Trial Judge deviated from what was before her in arriving at her conclusion. (See Ground 3 of the Notice of Appeal)
4. Whether the Court of Appeal can elect not to dispassionately consider the issues raised for determination by counsel (Grounds 5 & 6 of the Notice of Appeal.)

On his part, the learned respondent’s counsel filed his brief of argument on behalf of his client on 18th May, 2009 dated 15th May, 2009 though deemed properly filed on 3rd July, 2010. In the said brief of argument, the respondent chose to adopt the four issues for determination raised by the appellant as reproduced supra. He also proffered argument on each of the four issues for determination in the manner the appellant argued them. Similarly in treating the appeal, I shall also consider the four issues seriatim.

SUBMISSIONS BY LEARNED COUNSEL FOR APPELLANT

ISSUE NO.I

This issue relates to whether the Court below was right in setting aside the decision of the

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trial Court where there was no basis for doing so.

The learned counsel to the appellant submitted on this issue that the appellant has discharged the burden of proof to establish ownership of the land in dispute through the evidence of PW1, PW2, PW3 and PW4 (pages 28-39 of the record). He submitted that the summary of the testimonies of the appellants witnesses including the appellant himself are that the land in dispute belonged to the appellants father who cultivated and settled on it first and later borrowed or loaned portion of it to the Respondent. He submitted further, that the decision of the trial Court was well founded on sound legal principles supported by facts and that the Lower Court was wrong to have interfered with such decision. He referred to the contradiction in paragraphs 6-10 of the statement of Defence and Evidence-in-Chief to the effect that their late father discovered the disputed land by first cultivating on the land which belonged to his great grand father (page 40 lines 7 of the record). He argued that where a party fails establish root of title, it becomes an exercise in futility for the Court to begin to examine

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evidence of possession or act of ownership and that the traditional history which is the foundation of having title, any consequential act or claims will have no leg to stand on. He submitted finally, that the Lower Court erred in substituting its finding of the trial Court with its own finding. He will then urged this Court to resolve this issue in favour of the appellant.

ISSUE NO.2

Issue No.2 deals with whether the contradictions in the evidence of the appellants witnesses are material to warrant rejection of their evidence by the Lower Court.

The learned counsel for the appellant submitted that it is not every contradiction in the evidence of a witness that would warrant rejection of such evidence, except where such contradiction is material and substantial. He referred to the case of UWAEKWE-SHINTA v STATE (2005) 9 NWLR (pt.930) 227 S.C. He argued that the contradictions in the appellant’s witnesses testimonies are not germane and relevant in resolving the crucial issue in controversy between the appellant and the respondents. He referred to the said contradictions in the testimony of PW2 to the effect that the economic trees on the

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land grew on their own while in another breath he stated that the economic trees were planted by Fulani’s and submitted that this would not amount to a material contradiction to warrant the Lower Court’s decision (page 139-140 of the record). He argued further, that inspite of consistency in the testimony of PW1 and PW2 as to the real owner of the land in dispute, it was wrong for the lower Court to hold that the testimonies of PW1 and PW2 testimonies were in conflict with that of PW3. He argued that the Lower Court embarked on evaluation of evidence and ascribing probative value to them, which is squarely the function of the trial Court. He referred to the case of UBA PLC v BTL IND LTD (2005) 10 NWLR (pt.933) 356 at 372. He urged the Court to also resolve this issue in favour of the appellant.

ISSUE NO.3

Issue No.3 is on whether from the state of pleadings and evidence, the Lower Court was right to hold that the trial judge deviated from what was before her. The learned counsel for the appellant argued that it is incumbent upon the Lower Court to show where and how the trial Court went beyond what was before it in the pleading and evidence. He therefore

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submitted that the Lower Court fell in great error of law in arriving at the decision that the trial Court went beyond what was before it. He submitted that the Lower Court could only interfere with the findings of the trial Court where it was shown that the conclusions reached by the trial Court were not supported by evidence or were perverse and had occasioned a miscarriage of justice. He then urged the Court to also resolve this issue in favour of the appellant.

ISSUE NO.4

Issue No.4 deals with whether the lower Court was not in error when it failed to consider all issues submitted to it for determination.

On this issue, the learned counsel to the appellant argued that the Lower Court failed to determine issues (ii) and (iii) formulated by the appellant. He submitted that the effect of this omission has resulted in miscarriage of justice. He referred to pages 141 and 149 and argued that the Lower Court merely glossed over the issues which were germane to the appeal, without a thorough and detailed appraisal of issues contained therein. He cited the case of OSAFILE V ODI (1990) 3 NWLR (PT.137) 130 at 156 where Nnaemeka Agu J.S.C stated this<br< p=””

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It is settled that a Court is bound to consider every material concept of a party’s case no matter its merit.”

In conclusion, he urged this Court to resolve this issue in his favour and to finally allow the appeal.

SUBMISSION BY RESPONDENTS COUNSEL

The respondents adopted the 4 issues for determination formulated by the appellant. The learned counsel for the respondents argued that it is not enough for the appellant to claim that he owned the land for time immemorial, but he must also go further and point a genealogical tree of the family ownership of the land which is usually a long story. He referred to Paragraphs 3 and 4 of the statement of claim at page 9 of the record and PW3s evidence at page 28 lines 31-33 of the record where the appellant claimed that his father settled on the land before he lent it out to the respondent, in one breath, and yet in another breath his evidence disclosed that his father was born in Ajayi village and lived there until his death. He stated that Ajayi village is a distance of about 3 to 5 kilometres away from the disputed land. He referred to the evidence of PW2 at page 31 lines 17-18 of

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the record. He also argued that in another scenario painted by the appellant, it was stated that the economic trees were planted by Fulani herdsmen who first settled on the land. He argued that the appellant has not shown how and when the Fulanis settled on the disputed land and neither had the identity of the Fulanis been disclosed. The learned counsel for the respondent submitted that the respondent and his witnesses consistently maintained that the economic trees and houses built on the disputed land belonged to the respondent and he never conceded ownership to the Fulanis or any other person. He referred to the evidence of DW2 at page 42 of the record, (lines 1-16), where he said that the land belonged to the defendant because he was the one who gave him the portion of the land to farm and that he was the only owner he knew. He urged this Court to hold that the recent acts of possession and exercise of acts of ownership by the respondent via placing of tenants on a portion of the land had by far out weighed the appellant’s unproven assertions.

On issues No.2, the learned counsel for the respondent argued that the appellant did not adduce any evidence

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to buttress the averments in Paragraphs 8 and 9 of his Statement of Claim to prove the identity of the land in dispute. He referred to the testimonies of PW1-PW4 and the averment of the appellant in Paragraph 4 that the land in dispute is situate at Pyagbon via She. He submitted that all the appellant’s witnesses were not ad idem on the exact location of the disputed land and that proof of land’s identity to a certain extent is a sine qua non, in an action for a declaration of title to land. He referred to the case of ILONA v IDAKWO (2003) 32 WRN 121 at 135, where it was held that first and foremost, the duty of the plaintiff is to describe the land in dispute with degree of certainty and precision. He referred to the averments in Paragraph 6 of the Statement of Claim to the effect that the land is bound to the North, West and South by River Cheto flowing North, joining River Buna, whereas the evidence of PW1 stated that the land is bounded in the North by River Chelona and on the South by both Esan and Chelona and PW2 did not specify Northern boundary but stated that it is bounded in the West by Chelona and PW1 however said that the land northern boundary is

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a locus bean tree.

He then referred to the case of OGEDENGBE V BALOGUN (2001) 30 WRN 47 where it was held that failure to prove the land’s boundaries would lead to dismissal of the plaintiffs action. He then submitted that a surveyor could not have drawn a plan of the disputed land based in the appellant inconsistent evidence. He urged the Court to hold that the aforesaid contradictions cum inconsistencies are quite material and germane to the appellant’s case and to finally affirm the Court below’s verdict by dismissing this appeal. He cited the case of GAJI V PAYE (2003) 30 WRN, where it was held that where the evaluation of evidence which led to the finding is perverse, an appellate judge is in as good position to reverse such evaluation. On issue No.3, he submitted that it is a well settled law, that parties and Courts are bound by the parties pleadings and that any evidence which is at variance with the party’s pleadings would go to no issue. He urged this Court to hold that the verdict of the Lower Court is well grounded in law and that the Lower Court was in a position to have interfered with and determine the questions in issue in the appeal.

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Lastly on issue No.4, he referred to the judgment of the Lower Court at page 120 Paragraph of the record.

Consequently, the learned counsel submitted that the appellant’s submission on this, is an attempt to make a mountain out of small mole hill and that there was no legal basis for the counsel for the then respondent (now appellant) to have framed different issue(s) for determination aside from the issues formulated by the then appellant (now respondent) in the absence of any cross appeal, abandoned grounds of appeal or Respondents Notice. He prayed the Court to hold that all the 3 issues for determination were well treated by the Lower Court without any miscarriage of justice. He referred Paragraph 1 page 112 of the record, where the then respondent (now appellant) conceded to Issue no.3. He urged this Court to hold that the appellant’s contention on this point, does not hold water. He then urged the Court to dismiss the appeal and affirm the decision of the Lower Court.

In determining this appeal, I shall as I stated earlier, be guided by the issues for determination formulated by the appellant which said issues will also be considered

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serially.

ISSUE NO.1

In this issue, the appellant questions whether the Lower Court was correct to have set aside the decision of the trial Court in awarding title of the land in dispute to the respondents when there was no legal basis for doing so.

My lords, let me start by stating that it is well settled law, that there exists five methods known to law, for establishing ownership of land. These methods briefly comprise the followings:-

(i) Proof of traditional history or evidence

(ii) Proof by grant or the production of document of title;

(iii) Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts is true owner(s) of the land

(iv) Proof of acts of long possession; and

(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of the such land would in addition, be the owner of the land in dispute.

See Idundun and Ors vs Okumagbe (1996) 9 and 10 SC 277 at 246-250; Atanda vs Ajani (1989) 3 NWLR (Pt.III) 511; Anyanwu vs Mbara (1992) 5 NWLR (Pt.242) 381;

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Kyari v. Alkali (2001) 5 SCNJ 448; Balogun vs Akanji (2005) 4 SCNJ 109-110.

It must however be stressed here, that where a party claims title of a disputed land by way of his possession of same, if there is litigation between the parties as in this instant case, the onus is on the other side which is asserting the contrary, to prove that he is the true owner of the land. This is because there is usually a tendency to confuse possession with mere occupation. Occupation, as used in relation to land, entails more physical control of the land in the time being. It is a matter of fact. Such a control may have originated from mere permission or loan from the actual land owner or it may even be by stealing or by tortuous trespass. See Udeze vs Chidebe (1990) 1 NWLR (Pt.125) 145 SC; Ezukwu vs Ukachukwu (2004) 17 NWLR (Pt.902) 227.

Now having stated the position law above as it is, let me now consider the evidence adduced at the trial Court by the parties. But before doing so, my lords, permit me to digress and emphasise here, that a claimant of declaration of title to land has the burden to give clearly, the identity of the land he is claiming, because no

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Court should grant a declaration on an unidentified land. In short, he must lead credible evidence describing and identifying the land with certainty. See Ogedengbe vs Balogun (2007) 9 NWLR (Pt.1039) 380; Adebusola vs Akinde (2004) 12 NWLR (Pt. 887) 295; Okochi v Animkwoi (2003) 18 NWLR (pt. 851) 1. It is noted by me, that both Lower Courts have found that the identity of the land in dispute was not in controversy. It is equally an established law that in a claim of declaration of title to land, a plaintiff has the onus to prove his case based on the evidence he adduces at the trial and not to rely or capitalise on the weakness(es) in the defendant’s case even though he can always take advantage of the evidence of the defence which supports his case. See Tukur v. Sabi (2005) 3 NWLR (Pt.913) 2 NWLR (Pt.537) 308; Ojo v. Anibire (1999) 11 NWLR (Pt.628) 630. See alsoUchendu vs Ogboni (1999) 4 SC (Pt.II) 1 and Akimola v Oluwo (1962) 1 SCNLR 352.

It would appear to me that both parties in this appeal have relied on traditional history or evidence as rightly found by the two Lower Courts. It is trite law that in order to establish the traditional history of land relied

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on as root of title, a plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and also lead evidence in support without leaving gaps of creating mysterious or embarrassing linkages which have not been or can not be explained. In short, the pleadings of devolution and the evidence in support must be reliable and cogent, otherwise the claim for title will fail. SeeEze vs Atasre (2000) 6 SC (Pt.1) 214. At this stage, I think it will be pertinent to refer to the relevant pleadings by the parties.

The appellant, as plaintiff at the Lower Court, made the following averments in his statement of claim. It reads thus:-

PARAGRAPH:.

“1. The plaintiff’s fathers are the first settlers in Pyagbon village via She and in the course of their settlement, cultivated the land in dispute and thereby exercised their right of occupancy/ownership.

2. The plaintiff have at all times material to this suit, exercised right of possession and occupancy by inheritance and farming on the parcel and or piece of land being, lying and or situate at Pyagbon within the jurisdiction of this Honourable Court.<br< p=””

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The plaintiff inherited the said piece of land from his father Pada Dami Dami who is now deceased.

4. The plaintiff avers that the said parcel and or piece of land is identified thus:-

a) The Land is bounded to the east by a stream called River Bauna or Esani.

b) The Land is bounded to the North, West and South by River Cheto flowing North joining River Bauna,

c) The Land therefore is surrounded by River/stream.

d) The Land consist of cash crops like Mangoes, Gauva, Locust beans, etc,

5. The plaintiff will contend at the trial that his father late Pada Dami Dami lend part of the vast land to the defendant to farm whereupon he build mud houses for his immediate family’s settlement.
6. The plaintiff states that the land was collected from the defendant for about 15 years ago and have been farming on same.
7. That sometimes in 1995, the plaintiff went to cultivate the said land but was prevented or opposed by the

defendant and was obstructed from continuing the cultivation of the land.”On his part, the defendant denied all the above depositions of the plaintiff in his Statement of Defence, claiming that he was

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born on the said land and that he inherited the land from his father. The following depositions in the defendant’s/respondent’s statement of Defence are apposite and are reproduced below:-

PARAGRAPHS:-

“1. The Defendant vehemently denied Paragraph 3 of the plaintiffs statement of claim and in further reply states that the plaintiffs father never at any time settled at Pyagbon village nor disvergin any land in the village but rather the plaintiffs father by Anme Mwaibei Koge is a native of Kuwi village via Kuta where he lived and farm until his death.

2. The Defendant denies Paragraphs 4 and 5 of the plaintiff’s statement of claim and in further reply avers that Pada Dami Dami is a Maternal uncle to the plaintiff and not father to the plaintiff and the plaintiffs mother comes with the plaintiff from Kuwi village to visit the said Pada Dami Dami who resides at Pyagbon village.
3. The Defendant further avers that the plaintiff eventually migrated from Kuwi village and settled with the said Pada Dami Dami at Pyagbon village and farmed together with the uncle whose farm is entirely different from the disputed land.
4. The Defendant in

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further reply to Paragraph 5 of the plaintiffs statement of claim states that the disputed land belonged to him having inherited same from his late father who disvirgin the disputed land.

5. The Defendant further avers that when he was born, he grew up to meet his father farming on the disputed land and farm (sic) together with him and up till the time the father died no one has ever challenged his ownership of that land.

From the above depositions in the plaintiffs/appellant’s Statement of Claim, it is clear that the plaintiff/appellant had given detailed history of how he traced his title to the land in dispute which according to him, was through inheritance from his father, late Pada Dami Dami who at a time, lent part of the vast land to the defendant to farm and later collected back the portion of the land lent to the defendant. The latter cultivated it for about fifteen years. But when in 1995 the plaintiff/appellant went to farm on the land, the defendant/respondent obstructed him from cultivating the portion lent to him (defendant). He also claimed that his fore-fathers were the first settlers in Pyagbon village via She, and they settled there

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and cultivated the land in dispute and he therefore was the first to exercise right of occupancy/ownership. He clearly described the identity of the land in dispute.

Conversely, the defendant now respondent, in his pleadings claimed that he was born on the land and had also inherited same from his father having denied that the land in dispute was never lent to his father or to him. He also denied that the land was never collected back from him. Although the defendant had claimed that he farmed on the land with his fathers, he however did not state or plead the name of his father came into possession of the land in dispute or when he came into possession of same.

In the present situation, the law has put the burden on the appellant as the plaintiff at the trial Court, to prove his claim of declaration of title to the land in dispute by leading credible and reliable evidence in support of his depositions vide the Statement of Claim, especially the salient portions which I have reproduced elsewhere in the body of this judgment. The plaintiff/appellant called three witnesses to testify on his behalf plus his ipsi dexit when he testified as PW1. The summary

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of the evidence adduced by the plaintiff/appellant at the trial Court runs as follows:-

1. Evidence was led by the plaintiff through PWs 1, 2, 3 and 4 to the effect that he (the plaintiff inherited the land in dispute from his father Pada Dami Dami now late.
2. All the four witnesses are ad idem that the defendant borrowed the land in dispute from the plaintiffs father in view of their affinity relationship in that the defendant’s younger brother married the plaintiff s sister.
3. That it was the plaintiffs/appellants father who first cultivated the land in dispute as testified by all the four plaintiffs witnesses, the latter inclusive.
4. And PWs 2 and 4 testified that the plaintiff is still farming on the land in dispute.

The learned counsel for the defendant/respondent in an attempt to debunk the assertions of the plaintiff/appellant that the land in dispute was lent to the defendant/respondent, claimed that none of the plaintiff’s witnesses stated that they were present when such loan occurred. With due deference to the learned counsel for the respondent, that position of his could not be true. This is because, when being

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cross examined, the PW4 had this to say on page 38 of the record of proceedings:-

“I was present when the defendant borrowed land from the plaintiffs father. Those were also present then were Goge, Muaji, Mudi Gomna, Jagaba but they are all dead.”

As for the defendant, the summary of his case ventilated through the four witnesses he also called including himself is:-

(a) That the land in dispute belonged to him.

(b) That the defendants live on the farm land in dispute.

(c) That his grandfather and father live on the land in dispute as they were the first settlers on the land and that he inherited the land from his father.

(d) He denied that the grandfather or father ever borrowed the land in dispute from anybody.

Now even for curiosity purpose, the defendant failed to state for how long they settled on the land or for how long he had been farming on the land.

I have in some paragraphs of this judgment, earlier stated the position of the law with regard to the task on what a party relying on traditional history must plead with regard to the root of title he claims. I stated above that the plaintiff/appellant

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had in his pleading traced the history of his root of title unlike the defendant/respondent herein, who failed to plead such historical background or his root of title. It is not in dispute that the defendant is largely in possession or occupation of the land in dispute. There is also however, evidence of the presence of the plaintiff/appellant on the land and also that he is farming on it. The law is however well settled and trite too, that where two persons are claiming concurrently to be in possession, the person with better title is one whose possession will be ascribed to. See Mogaji & Ors vs Cadbury Nig Ltd and Ors (1988) NSCC 959 at 965.

I shall even at the peril of being repetitive state, that in a claim of declaration of title to land the claimant always has the burden to prove his claim by leading credible and reliable evidence to establish his title and should not rely on the weakness(es) of the defendant’s case even though he can rely on or take advantage of the evidence adduced by the defence to support his case or claim. See also Okpala vs Iheme (1989) 3 SCNJ 153. The evidence led by the plaintiff/appellant at the trial Court through the

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four witnesses called by the plaintiff/appellant, had in my view clearly established that the latter’s father Pada Dami Dami, was the first settler on the land in dispute. They also had established that the Defendant borrowed the land in dispute from the plaintiff’s father and upon the latters demise, the plaintiff inherited the land or that it devolved to him. On weighing the evidence adduced by both parties, I am inclined to agree with the finding of the trial Court that the plaintiff/appellant had proved his case on balance of preponderance of evidence and was entitled to the declaration of title on the land in dispute, as rightly held by the learned trial judge.

It is worthy of note, that the respondent herein as defendant at the trial Court, did not file any counter-claim. The law is trite that for a defendant to get title, he must prove it where the action of a plaintiff seeking declaration of title is dismissed. Such dismissal in the absence of a successful counter-claim by the defendant, does not amount to a declaration of any right to the defendant. Therefore, where a plaintiff claims title to land and the Court dismisses his claim for

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failing to prove title, the defendant who has not counter-claimed for declaration of title to the same land, does not automatically become entitled to the land. See Anwoyi v Shodeke (2000) 13 NWLR (Pt. 916) 34 SC; Ikem v. Efame (2000) 10 NWLR (Pt. 709) 321. As I state supra, the defendant had not counter-claimed and as such even if the plaintiffs claim were dismissed by the trial Court he would be entitled to declaration of title to the land in dispute. I have noted that the Lower Court in its conclusion while allowing the appeal by present respondent and setting aside the judgment of the trial Court, did not categorically award title of the land to the present respondent. In short, the first issue is resolved in favour of the appellant against the respondent.

ISSUE NO.2

This issue queries whether the inconsistencies or contradictions in the evidence of the appellant’s witnesses are substantial and material to warrant their rejection by the Lower Court.

On this issue, it is noted by me, that the Lower Court in its judgment on pages 139 to 142 pinpointed some averments in the testimonies of the witnesses called by the appellant herein as

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plaintiff at the trial Court. These include where the witnesses inter alia testified as below for example:-

PW1 said his father first cultivated the land in dispute and settled there.

PW2 said the plaintiff’s father lived in Ajayi for the time of his birth till his death that Ajayi is a little but far from Pyagbon village of land in dispute.

PW3 said plaintiff’s father lived at Pyagbon and came to settle at Ajayi village.

PW3’s evidence conflicted with PW2 and did not agree with that of PW1.

Upon closely considering these alleged contradictory pieces of evidence by the witnesses, I am not at one with the conclusion of the Lower Court that the pieces of evidence of the plaintiffs witnesses are substantial. They are not germane or crucial to the issue in controversy. To my mind, they are mere discrepancies often noticed or found in testimonies of witnesses who are ready and willing to tell the true account of the event as they knew, saw or had witnessed it. The bottom line is the testimony of PW4 of during cross-examination when he told the trial Court that he was present along with some people he named who were then late, who witnessed

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when the plaintiffs/appellant father lent the land in dispute to the defendant now respondent. Such piece evidence was never debunked by the defence and it went a long way in establishing that the plaintiff/appellant had indeed held the title of the land in dispute and had really lent same to the defendant who was his in-law, having married his sister. None of the witnesses called by the defendant/respondent denied that the father of the plaintiff was the first settler or cultivator of the said land. That was the germane, material or substantial point which if contradicted, could lead to the rejection of the plaintiffs claims of title to the land in dispute. I therefore agree with the learned appellant’s counsel, that what the Lower Court regarded as material or substantial contradiction to warrant rejection of those pieces of evidence of the plaintiffs witnesses to warrant rejection, it was wrong as this were not material to the facts in controversy. I therefore resolve this issue in favour of the appellant.

ISSUE NO.3

This issue relates to whether from the state of pleadings and evidence at the trial Court, the Court of appeal was correct when it

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held that the trial judge deviated from what was before her in arriving at her conclusion.

Here, my attention had been drawn to page 147 of lines 3 to 12 of the record of appeal, where the learned justices of the Lower Court stated thus:-

“Being the aforesaid in mind, I would not hesitate to agree with learned counsel for the appellant that indeed the learned trial judge went beyond what was before her in pleading and evidence when she was summing up and reaching her conclusion that she could not do………”

With greatest respect to their lordships of the Court of Appeal, I find myself unable to comprehend in what manner the learned trial judge went beyond what was before her. Their lordships did not pinpoint or cite the exact area or areas where the trial judge exceeded beyond the pleadings and evidence laid before her or where she delved into some extraneous matters in her judgment. They neither exemplified where the trial or proceeding was conducted outside or contrary to the known or prescribed procedure of conducting Court proceedings. It was also not shown in the Lower Court’s judgment or record of proceedings any lapse on the part of the

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trial Court that had led to miscarriage of justice or had rendered its decision perverse. Having not given any such clue or example of any alleged deviation from what was really before the trial Court leading to it, arriving at its conclusion, I agree with the learned counsel for the plaintiff/appellant that the trial Court never deviated from what was before her in the course of the conduct of its proceedings or in its judgment.

This issue is again resolved against the respondent in favour of the appellant herein.

ISSUE NO.4

This last issue relates to whether the Court of appeal was not in error when it failed to fully and properly consider all issues submitted before it for determination by the parties and whether the said failure did not vitiate the judgment of the Lower Court

Here, I do not think the resolution of this issue deserves any dissipation of energy. The record of appeal clearly shows that all the issues for determination raised by the appellant before it. For instance, see page 120 of the record, where the Court below chose to be guided by the issues raised by the appellant before it, now respondent. Also all the three issues

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raised were dealt with by the Lower Court on pages 120 to 150 of the record of appeal. That is to say, Issue No.1 was dealt with on pages 120 to 141, Issue no..2 at page 141 to 147 while Issue no. 3 was dealt with on pages 147 to 150 of the printed record. For that reason, I find the complaint of the appellant to be of no moment and unsubstantiated. The fourth issue is therefore resolved against the appellant.

On the whole, having resolved issues nos 1, 2 and 3 which touched on germane points relating to the crucial issues raised for determination of the appeal, it is my judgment that this appeal is meritorious and is accordingly allowed. The judgment of the Lower Court, upturning the decision of the trial Court is hereby set aside. In its stead, the judgment of the trial Court is hereby restored. For the avoidance of doubt, it is my judgment and order that:-

The present appellant who was the plaintiff at the trial Court is hereby DECLARED to be the owner and is

entitled to right of occupancy to that piece and or parcel of land being, lying and situate at Pyagbon village via She within the jurisdiction of the trial Court particularly as so

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described in Paragraph 6 of the statement of claim.

I make no order as to costs, so each party should bear his own costs.

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SC.59/2007