Kumaga Dauda & Anor. V. Kave Iba (2006)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A.

This appeal arose out of a claim instituted at the Area Court, Katsina-Ala, Benue State by the plaintiff, who is the respondent in this appeal, and another. They instituted the action against the defendants, the appellants herein and others. The claim was for a declaration of title to a piece of farmland lying and situate at Gaambe Mbacher in Katsina-Ala Local Government Area (LGA) of Benue State of Nigeria. The defendants who denied the claim, also had a counter-claim.

The Area Court heard the parties and their witnesses, visited the land in dispute and later gave judgment in favour of the plaintiff.

Dissatisfied, the defendants appealed to the High Court of Justice, Katsina-Ala Benue State, sitting in its appellate jurisdiction, coram, Utasaha, J. and Eko, J. The High Court heard argument of counsel for both parties and dismissed the appeal, affirming the judgment of the Area Court. Again dissatisfied, the defendants have now appealed to this court against the said judgment on 3 grounds.

For this appeal, parties filed and exchanged briefs of argument. The appellants’ brief of argument filed out of time on 3/6/2003, by leave of the court was deemed filed within time on 27/10/2003. Also the respondent’s brief filed out of time on 19/3/2004 was by order of the court deemed filed within time on 9/12/2004.

In their brief of argument, the appellants identified three issues for determination thus –

1. Whether the respondent (as plaintiff) identified the land claimed with definitive certainty and clarity as required by law to be entitled to the decree of title made in his favour – (said to cover ground 2 of the grounds of appeal).

2 Whether on the evidence and the law the respondent had proved his root of title to the disputed land. – (From ground 3).

3. Whether, having regard to the weight of evidence the lower court was justified in entering a verdict for the respondent. – (From ground 1).

The respondent on his part formulated two issues. –

(a) Whether the appellate High Court was right to have upheld the finding of the trial court that the respondent proved the boundary of the land claimed with certainty.

(b) Considering the evidence, whether the appellate High Court … was right to have affirmed the decision of the trial Area Court.

At the hearing of the appeal, Mr. Orkuma learned counsel for the appellants applied for time to “regularize” his reply brief which was filed out of time without leave of the court as required by the rules of this court. Mr. Tor – Musa, learned counsel for the respondent saved the day – for all concerned, from further delay in hearing the long pending appeal instituted since 1997. He applied to withdraw his notice of preliminary objection. Thus, withdrawn, this court struck out the said notice at pages 2(iv) and 2(v) of the respondent’s brief Mr. Orkuma also sought to withdraw his reply brief. The incompetent reply brief was also struck out.

Each learned counsel thereafter adopted his brief of argument. S.A. Orkuma, Esq., for the appellants urged us to allow the appeal. For the respondent, A.M. Tor – Musa, Esq. urged us to dismiss the appeal.

Before addressing the issues for determination, I consider it worthwhile to clarify the status of parties to this appeal, particularly the respondent, which seemed, upon the perusal of the records and the brief of argument of counsel for the parties, not to have been understood by the appellants.

The two plaintiffs named in the suit at the trial Area Court, namely Gbafan Iba and Kave Iba ostensibly brought the action in a representative capacity for their family, against the 5 defendants named therein on behalf of their own family. At the hearing, each party announced the name of the person/persons to represent them. Thus, for the plaintiffs, the 2nd plaintiff Kave Iba was chosen to represent them and for the defendants the 1st and 5th defendants Kumaga Daudu and Mchianan Mbatsuun, were chosen (see page 3 of the records, lines 7 – 19). This explains the appearance in the title of the suit subsequently and up to this appeal, of only one name, that of the 2nd plaintiff, as plaintiff who is the respondent herein and of the 1st and 5th defendants as defendants, and they are the appellants before this court.

This clarification is essential to identify that the claim of the respondent and the title sought, are rooted in his forebears, not just in himself or the 1st plaintiff alone. So also, in the counter-claim of the defendants, the 1st and 5th defendants invariably represented and testified on their family member’s behalf, and they are the appellants in this appeal.

Thus, the submission for the appellants which complained of injustice which they based on the failure of the 1st plaintiff Gbafan Iba to personally testify at the trial Area Court inspite of which, the court below gave judgment in his favour, is misconceived. It is well settled that a party to a suit is not under compulsion or obligation to personally testify, for himself or call a particular witness to prove his case. See Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 177 at 209, Bello v. Kassim (1969) 1 NMLR 148. Provided a party is able to proffer authentic and relevant evidence, oral or documentary, through witnesses, which supports his case to convince the court of trial, nothing exists which compels the party in person to testify or to call a particular person as witness. A trial court which relies on such authentic or relevant evidence cannot be accused of injustice.

The issues for determination will now be considered. The issues as identified by both parties adequately cover the complaints in the grounds of appeal. I however prefer the appellants’ issues. It is to be noted that although they argued their issue No.3 relating to weight of evidence separately, their argument is still about failure to prove, by the respondent the identity of the land in dispute with certainty and the root of title of the plaintiff/respondent to the said land. This is covered in their issues No.1 and No.2 and the respondent’s issues (a) and (b).

In the premises, it is intended to address all the issues together. On the issue of the identity of the land in dispute and the boundary, the appellate High Court whose judgment is appealed against, reviewed the evidence on record, which it stated to be explicit. It held that the finding of the trial Area Court regarding the boundary between the parties (to the effect that it was the road, Harga – Nderakugh highway, after Ukyor stream which constituted the boundary), was supported by evidence. It noted that both the 1st appellant and his witness DW1 (in the Area Court) conceded that Gbafan Iba, crossed the stream and settled there.

The learned Judges of the High Court stated further: –

“DW1 testified that Gbafan Iba was there for two years before he moved to Tongov, and when he returned from Tongov he came back to that land. The 1st appellant admitted that Gbafan Iba is the only member of his family to have settled across Ukyor stream and that inspite of their protests, Gbafan returned from Tongov and settled there.

The appellants, right at the trial, pleaded acquiescence against the plaintiffs. The 1st appellant at page 16 put up this plea that Gbafan has never protested to our settling on the land in dispute. He does not have a compound in the area in dispute. The 2nd appellant has one which was said to be up to a year old at the time 1st appellant testified on 18/11/93. Acquiescence is an equitable defence as well as an evidential rule of estoppel by conduct that is employed against real owners. It is not a plea against trespassers that the appellants claim that the respondent and his people are. The appellants seem to accept the respondent’s superior title by this plea of acquiescence in order to save their structures on the land.

The appellants are also pleading the respondent’s cause of action as acquiescence. The declaration sought against them successfully emanates from the very acts they now point to plead acquiescence. The filing of the suit is on the premise that the respondents do not condone the appellants’ trespass.”

They then came to the conclusion that the appeal was a “most frivolous exercise of the right of appeal” and then dismissed it, affirming the judgment of trial Area Court.

On his three issues for determination arising from the three grounds of appeal, learned counsel for the appellants had offered the following submissions: –

With regard to issue No.1, on the identity of the land in dispute, that the evidence by the respondent and his witnesses were conflicting but that in contrast that of the defendants was constant and consistent that Ukyor Stream is the boundary.

That there was no evidence by the parties of a ‘Y’ junction at meeting point of Sham road along Nderakur road, nor any evidence about matured orange trees in 1st plaintiff’s compound, these featured during the visit to the locus in quo (pp. 23 – 25 of the record). At the locus in quo also the trial court made a record concerning boundary on ‘Yiase’ tree about 200 metres away from 1st plaintiff’s compound through some ‘chaha’ trees clustered ahead of the ‘yiase’ tree to chaha tree across the footpath leading to 1st plaintiff’s compound and from chaha tree back to Ukyor stream in a straight line and ascribed this to the defendants (p. 25, lines 5-11 of the record).

That the trial court heavily relied on its observations at the locus in quo in arriving at its decision (p. 35, lines 33 – 35, p. 36, lines 1 – 27 of the record). That it held that boundary features described in court were seen in the North, East and West and that the disputed land is known by the court as well as the parties and the wrong positioning of cardinal points is not fatal.

That that conclusion was arrived at despite the loud complaint by the trial court that “parties went about attempting definitions of other boundaries, of the land and that in any event, the land in dispute is not in dispute.”

Learned counsel then concluded that this contradicts the trial court’s earlier finding on the dispute between the parties being one revolving on boundary.

He further submitted that – It is settled law that a plaintiff laying claim to a piece of land must identify same with definitive certainty and clarity when claiming title thereto and he cannot succeed unless he can prove clearly the boundaries of the land he claims. He cited Ezeokeke v. Uga & Ors. (1962) 2 SCNLR 199; (1962) 1 All NLR 482; Amata v. Modekwe 14 WACA 580; Udofia v. Afia (1940) 6 WACA 216; Epi v. Aigbedion (1972) 10 SC 53; (1972) 1 All NLR (Pt. 2) 370; Onotaire v. Onokpasa; (1984) 12 SC 19; Bassil v. Fajebe (2001) 11 NWLR (Pt. 725) 592; (2001) SCNJ 257.

Counsel submitted further, that it is trite law that when evidence as to boundaries of a piece of land to which a declaration of title is sought is inconclusive, scanty or of little or no weight, declaration should be refused for lack of certainty and identity of the subject matter, relying on Oke v. Eke (1982) 12 SC 218 at 233-7, 246-9; Odofin v. Ayoola (1984) 11 SC 72 at 107 – 110 and 118.

Further more, that the trial court added to the confusion by “its inconsistent and shifty findings on boundaries, interspersed with facts which cannot be traced to the evidence adduced by and for the parties, particularly at the locus in quo.”

That, “more devastating to the plaintiff’s case was the complete absence of the evidence of 1st plaintiff who never testified throughout the duration of the case, even though he was a constant point of reference on the fight about boundaries.” That 1st plaintiff also featured prominently in the evidence of the defendants particularly DW1 who positively stated without challenge that Gbafan Iba was across Ukyor stream, and that it is the law that although a party to a suit is not obliged to testify on his behalf, where a party’s case before a court is such that he is expected to swear to its truth and be cross-examined thereon and he fails to submit to this, it is a point that can go against his credit and a good ground for rejecting his case: Attorney-General, Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645; 1 SCNJ 208 at 224 -225; Imana v. Robinson (1979) 3 – 4 SC 1 at 9 – 10; Owosho v. Dada (1984) 7 SC 149 at 167. That, it was manifest from the foregoing that the plaintiffs woefully failed to identify the land claimed with definitive certainty and clarity, and, that the proper order to make by the lower court was an order of dismissal of the plaintiffs’ case. This, it was submitted since the defendants put forward a different version regarding the boundaries of the land, the plaintiffs’ evidence, lacked both quality and probative value and was inadequate. Agu v. Nnadi (2002) 18 NWLR (Pt. 798) 103; (2002) 12 SCNJ 238 at 257 cited.

It was also submitted that the heavy reliance placed by the trial court on its own observations at the locus quo divorced from any support of the evidence adduced by or for the parties is improper, irregular and illegal having regard to the apt warning of the West African Court of Appeal in Ejidike v. Obiora 13 WACA 270 at 273 – 4 (Verity, Ag. P). This approach to proceedings at the locus in quo has been consistently deprecated and frowned upon: Adeponle v. Ajalebe & Anor. (1969) 1 All NLR 222 at 226 (Madarikan, JSC). Counsel urged this court to discountenance any such evidence elicited by the trial court unaided by the parties and not subjected to cross-examination in support of the identity of the land in dispute in the instant case, for it is well settled that the court cannot demarcate boundaries and the onus is on the plaintiff to identify and prove existing boundaries when seeking a declaration of title to land. Lordye v. Ihyambe (2000) 15 NWLR (Pt. 692) 675; (2000) 12 SC (Pt. 11) 126, cited.

As to the issue of proof of the root of title, under the appellants’ issue 2, their learned counsel repeated some of his submission on issue one including the failure of the 1st plaintiff to testify.

It was submitted that a glance at the evidence of the 2nd plaintiff reveals that he claimed first settlement on the land beginning with Ichaver Iba to Chihin Iba to Gbafan Iba (1st plaintiff) (p. 3, lines 33 – 45 of the record), that during cross-examination, the 2nd plaintiff confessed that their grandfather’s desolate is across Ukyor stream and that they were all on that side that it is significant that the 1st plaintiff on whom, inter alia, the root of title was based, did not testify, that PW1 made no mention of root of title or first settlement, that PW2 however stated that Ichaver was on the land for long and was farming and named his boundary men. That he admitted under cross-examination that the plaintiffs have no farms on the disputed land and that 2nd plaintiff’s compound is across Ukyor stream and confirms 2nd plaintiff’s compound as being 4 years old. That he opined that 1st plaintiff was the owner of the land because he settled and had been farming there for sometime without being molested. That PW3 said nothing directly on the root of title or first settlement. That nevertheless, that he admitted in cross-examination that Iba died and was buried across Ukyor stream and that they came to settle on the land in dispute but the defendant never protested. Counsel submitted that that clearly indicates that it was defendants who had first settled there before the advert (sic) of the plaintiffs.

He argued that with the above factual background in mind and the noticeable absence of 1st plaintiff’s testimony on this issue together with the positive unchallenged evidence of 1st defendant that Ibafan Iba was the only person from plaintiff’s family to cross Ukyor stream to farm and that Gbafan Iba (1st plaintiff) made his compound on the land 3 years ago in the face of protests and the invitation of elders, that it was perverse of the trial court to hold that the issue of first settlement had been resolved in favour of 1st plaintiff (Gbafan lba) who had an old ruined desolate compound on the land older than the compounds of 2nd and 5th defendants. Learned counsel added that the “perversity” (sic) is clearer when it can be seen that nobody testified about the existence of 1st plaintiff’s old ruined desolate compound on the land, nor was there any evidence on record of the relative or comparative ages of compounds of plaintiffs and defendants on the land.

Permit me to break off here and to state that this is untrue as the evidence of the parties on record shows.

He further submitted that having regard to the conflict in and the scanty nature of the plaintiffs’ root of title, it should have been roundly rejected. He said that whereas 2nd plaintiff recounted the root of title as emanating from Ichaver Iba to Chihin Iba to Gbafan Iba (1st plaintiff) that PW2’s version traces title from Ichaver to Chihin to Ande. Also, learned counsel argued that by their shaky, conflicting and scanty evidence the parties did not prove who founded the land, how he founded it and the particulars of the intervening owners through whom they claim the land and referred to Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386; (1992) 6 SCNJ (Pt. 1) 22 at 31; Obioha v. Duru (1994) 8 NWLR (Pt.365) 631; (1994) 10 SCNJ 48 at 63; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562; (2000) 4 SC (Pt. 111) 118; Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) 370; (2000) 6 SC (Pt. 11) 18 and Eze v. Atasie (2000) 10 NWLR (Pt. 676) 470; (2000) 6 SC (Pt. 1) 214.

He further argued that since it was manifest that the plaintiffs’ failed to establish their root of title on the evidence and the law, the trial court and the lower court had a judicial duty to dismiss their claim and it was entirely erroneous of the lower court to fail to do just that in the circumstances, a position fortified even more by, according to counsel, the refusal, failure or neglect of the 1st plaintiff to testify in the matter and the devastating attendant consequences of this omission. He again referred to Attorney-General, Kwara State v. Olawale; Imana v. Robinson, Owosho v. Dada.

Learned counsel added, that in contrast, the defendants had amply and satisfactorily traced their root of title coupled with numerous and positive acts of ownership and possession, and that this was never challenged or otherwise controverted by the plaintiffs, and the trial court itself acknowledged the numerous positive acts of ownership and possession by the defendant by describing them as overwhelming in comparison to those of the plaintiffs. He argued that it was in this wise that DW1 stated, unchallenged, that “apart from Gbafan Iba none of his relations has a farm on the land in dispute and that from the disputed land to Tse Iba along Iki stream is about 3 miles. That this was reinforced in cross-examination wherein DW1 said, inter alia, that Chihin settled and died across Ukyor stream, Iba’s desolate compound is about 3 miles away from the disputed land. That, when this evidence is “juxtaposed with the fickle and weak case of the plaintiffs as disclosed by 2nd plaintiff who admitted return from sojourn 4 years ago and that he has no farm on the land, that the unreliable testimony of PW1 shattered completely when he was cross-examined, added to the fatal admissions of PW2 and PW3 to the effect that they at that time had no farms on the disputed land, 2nd plaintiffs compound was across Ukyor stream, there was no other son of Iba apart from 1st plaintiff that have farms on the disputed land, that Iba died and was buried across Ukyor stream, the issue easily appears incontestable. This, counsel submitted exposes the hollowness of the position of both the trial court and the appellate lower court, in view of the decisions in Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631; (1994) 10 SCNJ 48 at 58; Lawal v. Dawodu (1972) 8/9 SC 83; Kasali v. Lawal (1986) 3 NWLR (Pt. 28) 305; Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527; (1992) 4 SCNJ 177 at 188; Paul v. Ozokpo (1995) 4 SCNJ 119 at 137 – 8 and Ekpo v. Ita 11 NLR 68. He finally urged this court to overturn the decision of the lower court on this issue and allow appellants’ appeal thereon.

On the appellants’ issue No.3, which their learned counsel stated derives from ground 1 of the appellants’ ground of appeal, he said the appellants would be guided by the principles laid down by the Supreme Court in Okafor v. Idigo (1984) 1 SCNLR 481; (1984) 6 SC 1 at 25 – 29 (Obaseki, JSC) in actions for declaration of title to land.

He pointed out that the trial court in its judgment (pp. 30 – 42 of the record) made findings on issues of boundary, root of title and first settlement and acts of ownership and possession by the parties. He complained that ignoring all the various pieces of evidence adduced by the 2nd plaintiff and his witnesses on this question, the trial court had recourse to its observation at the locus in quo which it utilized to resolve the contention on boundaries by concluding that the land in dispute was known to the court and the parties. That copious references were made to the court’s observation at the locus in quo. That that approach and conclusion could not be right because it ignored “the riotous and contradictory” case presented by the plaintiffs and their witnesses earlier highlighted in the statement of facts and issue No. 1. That it is difficult to reconcile the land awarded to the plaintiff by the trial court (p. 41, lines 20-26 of the record) with the piece of land variously described by 2nd plaintiff, PW1, PW2 and PW3 with varying boundaries. He then submitted that the plaintiffs are bound in law by the chaotic state of their witnesses’ evidence on boundaries and referred to Kimdey v. Military Governor, Gongola State (1988) 2 NWLR (Pt.77) 445; (1988) 5 SCNJ 28; Bamgbose v. Oshoko (1988) 2 NWLR (Pt.78) 509; (1988) 5 SCNJ 116.

Counsel for the appellants again described as chaotic and contradictory the testimony of 2nd plaintiff, PW1, PW2 and PW3 on boundaries submitting that it weakened and destroyed credibility.

Learned counsel repeated what he called an overview of plaintiffs’ evidence and his witnesses. He questioned how this evidence could enjoy credibility and judicial endorsement? He submitted that the evidence as shown is unreliable and should have been jettisoned. That the proper order to have been made in the circumstances should have been an order of dismissal of the case, citing Odofin v. Ayoola (1984) 11 SC 72 at 107 – 110, (Whyte, JSC); 118 (Oputa, JSC); Onwuchekwa v. Ezeogu (2002) 18 NWLR (Pt.799) 333; (2002) 9 SCNJ 125 at 132-3 (Uwaifo, JSC).

Counsel again criticized what he called reliance placed by the trial court on its own observations unaided by the evidence of the parties subjected to cross-examination, and referred to Ejidike v. Obiora 13 WACA 270 at 273-4 and Adeponle v. Ajalebe (1969) All NLR 222 at 226 to justify the rejection of evidence obtained in the manner complained of.

He submitted that in conducting proceedings at locus in quo no effort had been made to comply with the mandatory provisions of proviso (ii) to S. 77 of the Evidence Act, Cap. 112. That the trial court also improperly embarked on the unwarranted exercise of demarcating the land, a course condemned in a long line of judicial decisions: Jorde v. Ihyambe (supra) and Oke v. Eke (supra), and that the decision of the trial court, confirmed by the lower court of appeal, should not be allowed to stand.

Learned counsel again repeated his submission on root of title. He repeated his complaint about the absence of the testimony of 1st plaintiff, Gbafan Iba.

He submitted that the decision of the trial court affirmed by the lower court is open to question on another score viz in the area of evaluation of evidence. That the trial court made no attempt to evaluate the evidence of 2nd plaintiff, PW2, 1st defendant, 5th defendant and DW1 as to the root of title. That if this had been done and the principles in Mogaji v. Odofin (1978) 4 SC 91; (1978) 3 LRN 212 at 213-4 applied the court would undoubtedly have arrived at a correct decision that the plaintiffs’ evidence was not sufficient to sustain their case. He referred to Aboyeji v. Momoh (1994) 4 NWLR (Pt. 341) 646; (1994) 4 SCNJ 302. He invited this court to re-evaluate the testimonies on this point to discover the emptiness of plaintiffs’ case, citing Egesimba v. Onuzuruike (2002) 15 NWLR (Pt. 791) 466; (2002) 9 SCNJ 46 at 68 (Ogundare, JSC) since, according to him the trial court’s findings are not anchored on the demeanor of the witnesses.

He repeated his submission on the trial court’s findings on various acts of ownership and possession by the parties when it found that those of the defendants overwhelmed those of the plaintiffs referring to p. 40, lines 7 – 11 of the record.

He submitted that on the totality of the evidence before the court, this finding is unassailable. Counsel repeated his observations concerning the evidence of the plaintiff and his witnesses. He concluded that the inference is inescapable that ownership and possession is vested in the defendants. Learned counsel urged this court to reverse the reasoning and allow the appeal.”

For the respondent, the following argument/submission was proffered: –

That the respondent and his witnesses proved the identity of the land with utmost clarity – referring to 2nd plaintiff’s evidence on record and the 2nd plaintiff’s answer in cross-examination. That from the testimony of the respondent, one can easily know that the dispute between the parties is on boundary. In other words, the dispute is on the parcel of land lying and/or situate between Harga-Nderakur motorable road and Ukyor stream. That PW2 also stated that the boundary between the parties was on road leading to Tor-Donga and Nderakur. That in PW3’s testimony on boundary he stated thus-

“The land belongs to the plaintiff and it is on the left side of Harga Nderakur road. The land stretches to Ukyor stream. Harga-Nderakur road is the boundary between the parties. In the South, the plaintiff’s boundary man is Ande Iba on Harga-Nderakur road. In the North the plaintiff’s boundary is Uabya stream.”

That PW3 maintained that the boundary of the parties was on Harga-Nderakur road and that on further cross-examination by the appellants’ counsel, PW3 stated that;

“The land in dispute is on the right hand side of Harga-Nderakur road when facing Nderakur.

Further, that these boundary features were confirmed by the court when the court visited the locus in quo.

Learned counsel argued that the trial court conformed with the rule in Kwadzo v. Adjei (1944) 10 WACA 274 and section 77(ii) of the Evidence Act, that the parties as well as the trial court knew the land in dispute. He referred to the case of Eigbejale v. Oke (1996) 5 NWLR (Pt. 447) 128; (1996) 1 RMLR (Pt. 3) 121, and Odofin v. Oni (2001) 3 NWLR (Pt.701) 488; (2001) 5 NSCQR 67 at 79. He justified the finding of the trial court regarding the boundaries as stated by the parties and their witnesses and seen at the locus.

He submitted further, that the essence of a visit to a locus in quo by the court is to bring to fore the evidence of parties, that, it is a forum for parties to show important boundaries and land marks to enable the court adjudicate the issue in dispute, referring to Niki Tobi, JSC’s statement in Orugbo v. Una (2002) 11 NSCQR, 537/552; (2002) 16 NWLR (Pt.792) 175. That the ‘Y’ junction mentioned by the trial court, is the direct consequence of the meeting of “Sham” and “Nderakur” roads mentioned in evidence of the parties and that submission of the appellants in that regard is too technical and far from substantial justice which our courts now uphold: He referred to Galadima v. Tamba (2000) 11 NWLR (Pt.677) 1; (2000) 2 NSCQR, 1156.

It was pointed out that since it was the appellants that introduced the fact of “Sham road” during the proceedings, they cannot complain that they had no opportunity of cross-examination on that issue. That the cases of Ejidike v. Obiora 13 WACA at 273-4 and Adeponle v. Ajalebe (1969) 1 All NLR, 222/226 are not applicable. As to “matured orange trees in 1st plaintiff’s compound,” he pointed out PW2’s evidence on p. 7 lines 31-33 of records to show that it was not manufactured by the trial court as the appellants sought to show.

Learned counsel then referred to the complaint that the 1st plaintiff failed to testify. He submitted that this case falls outside the judicial authorities cited by the appellants, that it has never been the law that a party to a suit for a declaration of title to a piece of land must possess a special know ledge of boundaries exclusive of others that his evidence becomes mandatory. He questioned what was special about the boundary/features in the case particularly where parties are contesting the land on family basis. That if the law had required that a party to an action must give evidence, it would have so stated, referring Niki Tobi, JSC in Orugbo v. Bulara and concluded that parties have the right to prove their case through witnesses. It was pointed out also that:-

(i) The parties were granted leave by the trial court to prosecute and defend the suit for and on behalf of themselves and others referring P. 3 lines 4-26 of the records.

(ii) The fight on the land between the parties is on the basis of one family versus another

(iii) And PW3 is the son of 1st plaintiff.

On the issue of root of title which the appellants complained was not proved but the trial court still proceeded to award the respondent the land, it was submitted for the respondent, that the respondent proved his claim and that the finding of the trial court was supported by evidence. That this is so when the trial court, in considering the evidence of parties found that the respondents family originally settled west of Ukyor stream and that the appellants’ family originally settled East of Harga-Nderakur road, that, the parties on their expansionist bid however, reached the land in dispute. He referred to the findings of the court in the records. He referred to the evidence of the Respondent where he traced his root of title from Chaver as the first settler to Chihin thus:

“Chihin then spread and set up a new compound to expand but was still farming on the land, Chihin died and Gbafan Iba took over the land, crossed through the desolate and went across a stream called Ukyor but was still farming on this land. Gbafan dug a well here, planted mangoes …”

That the respondent concluded his evidence on this, stating that when 1st plaintiff crossed the stream and settled undisturbed, 1st plaintiff became sick and his maternal relations from Tongov took him on sojourn. 1st plaintiff then left lorshe Boji, his kinsman in his compound looked after the land, stayed on sojourn for seven years and had returned for the past 3 years, when the appellants started trouble, which led to several arbitrations that failed. That PW1, 2 and 3 corroborated the foregoing and in particular, that PW2 too corroborated the evidence of the respondent as to 1st plaintiff crossing Ukyor stream and as to the ownership of the land, PW2’s evidence is on page 7 lines 28 – 31 of the records and in cross examination by the appellants’ counsel, PW2 stated that the first plaintiff is the owner of the land because he had stayed on the land and worked for sometime without anyone molesting him.

Counsel then submitted that this piece of evidence was not challenged, that PW3 gave reason why 1st plaintiff crossed Ukyor stream at the death of Chihin. That the 1st plaintiff crossed Ukyor stream because at the death of his father, there was need to disperse the family. That PW3 too gave evidence tracing the founder from Chaver to Chichin to Gbafan (lst plaintiff) 1st plaintiff then “crossed Ukyor after Chihin’s death and settled …”; PW3 also concluded that when 1st plaintiff went on sojourn, he gave the custody of the land to lorshe Boji, his kinsman.

Learned counsel pointed out that all this evidence was not challenged, but rather, the appellants put up a nebulous defence that Iorshe Boji was not a blood relation of the plaintiffs. During cross-examination, 1st appellant capitulated that he is from Mbatom sub-kindred while Iorshe Boji is from Mbamaantuer sub-kindred with the plaintiffs and DW1 too conceded this. It was also pointed out that the respondent’s assertion that 1st plaintiff had settled on the land, was away on sojourn for 7 years and had returned for the past 3 years and was farming on the land when the appellants started trouble, was conceded to by DW1 and that 1st plaintiff “settled on the land for 2 years and left to Tongov and came back 3 years ago.” Learned counsel reasoned that if one marries the evidence of the respondent, PW1, PW2, PW3, 1st appellant on page 19 lines 33-34 and DW1, the result will be that 1st plaintiff had crossed and settled across Ukyor stream undisturbed; left lorshe Boji in his compound and voluntarily went on sojourn for seven (7) years and returned for the past 3 years before trouble started from the appellants. He then submits that since all these facts were not challenged, they should be taken as established. He cited – Omo v. Judicial Service Commission, Delta State (2000) 12 NWLR (Pt682) 444; (2000) 3 NSCQR, 28/45, Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417.

Counsel referred to the first settler question vis-a-vis the finding of the trial court, and to the evidence of the respondent, PW2 and PW3 to be compared with the evidence of 1st appellant to the effect that

(i) the graves of 1st appellant’s forefathers: Bur, Atogbon and Zegi can not be found on the land in dispute

(ii) that 2nd appellants’ compound was a year old at the time of his testimony in court;

(iii) that 1st plaintiff had settled before the 2nd defendant came and settled;

(iv) and that Lorshe Boji is from respondent’s lineage.

He submitted that the cases of Anyanwu v. Mbara (1992) 5 SCNJ (Pt. 22) at 31; Obioha v. Duru (1994) 10 SCNJ 48/63; (1994) 8 NWLR (Pt. 365) 631, Mogaji v. Cadbury (1985) 2 NWLR, (Pt.7) 393 cited by the appellants’ counsel support the case of the respondent.

As to the submission for the appellants that the trial court wrongly found for the respondent simply because the 1st plaintiff has an old ruined desolate compound on the land when there was no evidence as to such fact, nor was there evidence on comparative or relative ages of compounds of the parties, it was pointed out that there is a plethora of evidence – that of the respondent that “Iorshe Boji settled on Gbafan’s compound when Gbafan Iba left to Tongov…”

On the issue of comparative or relative ages of compounds of the parties on the land, counsel pointed out the evidence of the respondent on page 5 lines 20 – 21 which was admitted/conceded by the 1st appellant on page 20 lines 9 of the records that 2nd appellant’s compound was a year old at the time of the trial of this suit before the trial court, the evidence of DW1 Ion the period 1st plaintiff settled before he went on sojourn at page 21 line 34 to page 22 line 1 and 1st plaintiff settled for 2 years and left to Tongov, that the respondent at page 4 lines 5 – 6 stated unchallenged that 1st plaintiff stayed for 7 years on sojourn and DW1 ended that 1st plaintiff returned for the past 3 years when trouble started.

It was submitted that marrying these pieces of evidence with that of 1st appellant, it will be discovered that 1st plaintiff settled on the land for 2 years undisturbed; went on sojourn for 7 years when he left Lorshe Boji on the land to take care of it and returned for the past 3 years when the appellants came disturbing. In other words, he summarized, the 1st plaintiff had settled on the land for 11 years before the 2nd appellant in the 12th year entered the land and built his compound thereon. It was pointed out that the 1st appellant too conceded that the 1st plaintiff was on the land before the 2nd defendant entered and settled. Learned counsel concluded that the submission of the appellants on the issue is misplaced in the light of the above.

It was submitted also for the respondent that there was no conflicting evidence in the testimony of the Respondent and his witnesses, that Gbafan Iba crossed over the Ukyor stream was not in controversy as this was conceded by DW1.

On the evidence of acts of possession, which the appellants claimed overwhelmed those of the respondent as found by the trial court, learned counsel for the respondent submitted that the court rightly declared such acts to be trespass and this is supported by overwhelming evidence which he listed. Such were:-

(i) The trial court found the old ruined desolate compound of the 1st plaintiff where he had settled first, left to Tongov on sojourn to be older than the appellant’s compound. See page 24 lines 28-29 and p. 39 lines 28 – 31 of the records.

(ii) The court found the compound of the 5th defendant (2nd appellant) to be a year old at the time the court visited locus. This was conceded to by the 1st appellant on oath.

See page 20 lines 7 – 9 of the records.

(iii) There is no evidence from the appellants that they protested when the 1st plaintiff initially settled before he went on sojourn.

(iv) There is unanimous evidence from respondent, PW1, PW2 and PW3 with 1st appellant and DW1 that 1st plaintiff settled on the land and while on sojourn, left Torshe Boji (his kinsman) take care of the land. See evidence of 1st appellant and DW1 on page 19 lines 5 – 6 and page 21 line 34 to page 22 line 5 respectively of the records.

(v) That the dispute started over the land immediately 1st plaintiff returned from sojourn or at the time he was on sojourn. See evidence of 1st appellant on page 19 lines 4 – 5 compared with DW1 on page 21 line 34 to page 22 line 1 and PW1 on page 3 lines 20 – 25 and PW2 on page 7 lines 22 – 32 of the records.

(vi) The court also found the well and the mango tree dug and planted respectively on the land in dispute when the 1st plaintiff first settled before he left on sojourn.

See page 24 lines 25 – 26 and compare with evidence of respondent on page 3 lines 40 – 42 and PW2 on page 7 lines 28 – 32 of the records.

(vii) The court also found the new settlement of the plaintiff when he had returned from sojourn to comprise of 14 houses, matured oranges and mangoes, see page 24 lines 28 – 29 and page 39 lines 28 – 31 of the records. Compare with PW2’s evidence on page 7 lines 31-33 of the records.

(viii) 1st appellant conceded on cross examination that the graves of his forefathers (Bur, Atogbon and Zegi) cannot be found on the land in dispute and that the 1st plaintiff settled before the 2nd defendant entered the land and settled. See page 20 lines 7 – 10 of the records and page 21 lines 5 – 8 by the 2nd appellant.

(ix) The appellants did not show any of their forefathers’ desolate compounds to be on the land in dispute rather it was only new compounds of the appellants that were built either by stealth or force. The court too found the compounds of the forefathers to be outside the land.

It was finally pointed out that the appellants on their part failed to establish their own root of title to the land in dispute.

Details of argument such as the above, and of the submissions of learned counsel for the parties, in a suit aid thorough examination of all the issues arising in a touchy/sentimental claim such as a land suit, to arrive at the justice of the matter. Against these, the evidence on record and the judgments of the lower courts, the law is examined.

It is settled law, as rightly submitted for the appellants that in order to succeed in a claim for declaration of title to land, the plaintiff must establish/prove the identity of the land in dispute, its boundaries and features with certainty. See Odiche v. Chibogwu (1994) 7 NWLR (Pt. 354) 78 SC, Oke v. Eke (1982) 12 SC 218, Ajide Arabe v. Ogunbiyi Asanlu (1980) 3-7 SC 78, Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299, Odofin v. Oni (2001) 3 NWLR (Pt. 701) 488 SC.

Where the land being claimed is not identified and ascertained, the claim of the claimant will fail and be dismissed. See Oluwi v. Eniola (1967) NMLR 339.

Thus in order to establish a claim of title to land, the issue of its identity becomes sine qua non to the success of the claimants’ claim. Odiche v. Chibogwu (supra).

In Odiche v. Chibogwu (supra) WaIi, JSC in his leading judgment had, at page 86 of the judgment, added as follows to the foregoing principles and, this is particularly relevant and helpful in this matter:-

“In the Area Courts in the northern states this is done by the claimant stating.-

1. the boundaries of the area and location of the land he is claiming;
2. his neighbours and their names on all sides of the boundaries. Where some of the boundaries are marked by river, stream or road, names of them;
3. any other physical features on the land like rocks, building, trees etc. That may assist in its identification. ”

The land in dispute is in Benue State, one of the Northern States. These principles apply.

The respondent had satisfied these conditions, evidence of which the trial area court accepted, as it also accepted evidence of his title, arising from acquisition thereof by settlement etc. Gbafan crossed the Ukyor stream and settled there for 2 years undisturbed, till he went to Tongov and returned there after 7 year. In his absence his relation Iroshe looked after his settlement. He had come back for 3 years when trouble started.

I have examined the judgment of the trial Area Court, the evidence on record relied on above by the appellate High Court in its judgment and the submission of counsel for the parties. I hold the view that the court below came to the right decision. There is evidence on record about Gbafan’s root of title to their entire land from his forebears, to himself and of consistent exercise of their lights over the entire land by settlement, fanning, occupation, even his own expansion beyond the Ukyor stream, where he set up a compound and settled there before he left to sojourn with his mother’s people at Tongov due to ill health. When he came back, he returned there. He is the boundary man of the defendants/appellants. There is over-whelming evidence of the origin of the title acquired by settlement, the occupation thereof, the boundary and his exercise of light of possession.

The evidence of the 2nd plaintiff, PW1 and PW2 is relevant.

Let me set out some relevant parts therefrom: –

2nd plaintiff testified at page 3 – 5 of the records thus:-

“I am 60 years old. I know the first plaintiff, he is my brother. I know all the defendants. The defendant have entered the land I inherited from my fore-fathers, I want the court to give me back my land. The land is my forefathers because Chaver Iba, my father settled here before the days of the Tiv Moves. Chaver died and was buried on this land. Chaver’s brother Chihin Iba then took over the land. Chihin then spread and set up a new compound to expand but was still farming on this land. Chihin died and Gbafan Iba took over the land, crossed through the desolate and went across a stream called Ukyor, Gbafan dug a well here, planted mangoes and there are about six Nune trees there. Chihin is my father and I was born on this land. Gbafan became sick and his mother’s relations from Tongov took him to Tongov. Torshe the brother of Gbafan then stayed in Gbafan’s desolate compound and was fanning on the land. Torshe had the same father with Gbafan named Boji. Gbafan was to come back and told Torshe to leave Gbafan’s desolate and Torshe left. Gbafan was away for seven years. Gbafan came to the land and stayed for three years and was farming thereon.”

“In the East my land stops at Haaga – Nderakpugh motorable road. In the west my land stops at Uabya stream in south my boundary man is Ande Iba. In the north Kyande Umenze is my boundary man. My land is farmland. I have yam, guinea corn, rice, cassava, and pepper farms on the land.

“I know about this land. I have no farm on this land. Only Gbafan farms close to the defendants. Across Haaga – Nderakpugh road, the defendants are Gbafan’s boundary men on farms.

“It is the defendant’s contention that the boundary between us is Ukyor stream, but it is our case that our boundary is Haaga-Nderakpugh motorable road. Agugu Bur and Mchianan Mbatsium have compounds on this land. Mchianan made his compound this year after I sued him. Agugu Bur made his compound about six years ago. Our grandfather’s desolate is across Ukyor stream and we are all on that side.”

Everything the appellants allege were not testified to are set out in the above evidence – evidence of boundary, root of title arising from settlement by Gbafan etc.

PW3 at page 15of the records confirms the foregoing regarding the issue of boundary, thus:

“The land belongs to the plaintiff and it is on the left hand side of Haga Nderakugh road. The land stretches to Ukyor Stream. Haaga -Nderakugh road is the boundary between the parties …”

This witness also gave evidence of the respondent’s root of title (see page 15, lines 30 – 38). He said:-

“The land is the 1st plaintiff’s because his father Chaver Iba, was on the land and was farming thereon while Atogbon the father of the defendants were across Uatsar stream. Atogbon is the grand father of the defendants. Atogbon maintained boundary with us on Haga-Nderakugh road. Chaver died and Chihin inherited the land in dispute. Chihin planted mangoes on the land. Chihin died and Gbafan Iba inherited the land in dispute. Gbafan Iba crossed Ukyor after Chihin’s death and settled with his brother Fese Afa. ”

The defence had 3 witnesses – 1st and 5th defendants and DW1.

The evidence of the defendants/appellants to counter the two vital questions of root of title and boundary can be found in the evidence of 1st defendant (page 18), and DW1 (page 21).

The 5th defendant merely adopted the evidence of the 1st defendant.

What the 1st defendant said about title was to assert their own title to the land in dispute.

On the issue of boundary, he said: –

“We do not share a common boundary with the plaintiffs. The boundary between the plaintiffs and us is not Barga-Nderakugh road … Ukyor stream is the boundary between the plaintiff and myself. The plaintiff’s family is large with up to ten branches. Gbafan Iba is the only one from that family that has crossed Ukyor Stream.

He went on: –

None of the other members of Iba family has ever crossed Ukyor stream to farm except Gbafan Iba. When I was born Gbafan Iba was not here. Gbafan Iba made his compound on this land three years ago. We protested then Gbafan came to settle here. We invited the elders thrice for settlement but the plaintiffs refused to show up, because he was on sojourn at Tongov while his children were constructing the compound. PW3 was amongst the plaintiffs children doing the constructing work. Iorshe Baji is not a blood relation of the plaintiff and never looked after the land on behalf of Gbafan when Gbafan was on sojourn. I chased Iorshe Boji away from the land when Gbafan had not come back from sojourn. Gbafan chased Iorshe from his new settlement and he left and died elsewhere. Iorshe Boji and the 2nd plaintiff have a land dispute.”

Significantly this defendant/Appellant admitted in cross-examination:-

“(1) I do not know how long the plaintiffs stayed on sojourn.

(2) Mdrianari’s compound is up to a year. Gbafan was around when Argungu settled on the land in dispute.”

(These persons are the 5th and 2nd defendants/appellants in this matter). In other words these persons came on the land after the 1st plaintiff Gbafan Iba settled there.

On the part of DW1 he also testified to the title of the appellants, but also significantly testified in support of the plaintiffs’ case thus

“I am the defendants’ boundary man on Uatsor Stream. The defendants have farm from Uatsor Stream to Ukyor Stream. 1st plaintiff Gbafan Iba is across Ukyor Stream on the land in dispute. Gbafan settled on the land for two years and left for Tongov but came back 3 years ago. I have been the defendants’ boundary man from my children (sic). Gbafan Iba was then across Ukyor Stream. The land dispute started about 3 years ago.

…I know Gbafan Iba for 60 years standing … Apart from Gbafan Iba, none of his relations has a farm on the land in dispute ….”

Under cross-examination, DW1 testified: –

“The land dispute is on the right of Haaga Nderakugh road when facing Nderakugh … From my land, I pass through the defendant’s land before getting to the plaintiff’s land … Gagu’s compound is on the left of Haaga Nderakugh road. The defendants are the children of Gagu. That is why I have included Gagu in the dispute.” (Italics supplied).

Against the foregoing, I have examined the issues. Issue No.1 raises the question whether the respondent identified with certainty and clarity as required by law the land in dispute to entitle him to the declaration of title thereto. The answer is yes.

The 2nd issue raised by the appellants is whether on the evidence and the law the respondent proved his root of title to the land in dispute and, the 3rd issue questions whether having regard to the weight of evidence, the lower court was justified in entering judgment for the respondent. The answer is yes.

The appellants’ submission on the issue of boundary features of the land in dispute in summary is that the respondent and his witnesses gave conflicting evidence, making the land uncertain and unknown.

The respondent’s reply in summary also is that he and his witnesses proved the identity of the land in dispute with utmost particularity and his title. He identified the evidence on record of the respondent himself, and his witnesses.

It is evident from the testimony of the parties and their witnesses set out above that each party gave evidence of its own perception of the boundary to the land in dispute being claimed by each. I agree with learned counsel for the respondent that the respondent gave evidence of boundary with sufficient particularity. As the hearing proceeded and the trial Area court heard every evidence on the issues arising in the matter, and visited the locus in quo, with the parties in attendance, identifying structures etc on the land. Relevant facts did crystallize. The trial court was able then to identify the real issues in controversy.

The hard facts about the boundary of the land claimed emerged, leaving the trial court clear observation and appreciation of what was to be addressed to secure justice in the face of the opposing claims between the parties. The court observed that the issues between the parties at the end of the hearing before the Area Court had substantially been narrowed down. To this extent, that court, in its evaluation of the evidence rightly, in my view, determined, regarding the issue of the boundary of the land in dispute, what each party had conceded and what was not. Then, it found that what was really in controversy was that part of the land in dispute lying and situate between Ukyor stream in the west, Uabya stream in the north and Sham road up to its ‘Y’ junction with Nderakur road etc – See pages 36 – 39 of the records. In a judgment, which I hold, carefully reviewed, examined and evaluated all the evidence, including that at the locus in quo, that court identified that –

(1) the parties were contesting for title “on the basis of traditional history of inheritance, acts of ownership and possession and geographical contiguity rule.”

(2) the plaintiffs concede the portion of land lying and situate in the East and across Barga – Nderakur motorable road.

(3) At the locus, the defendants showed their original settlement about 100 metres across Nderakur road in the East. Bur’s desolate compound is also in the East of and across Nderakur road. The land across Ukyor stream is conceded to the plaintiffs and the desolate compound of their progenitor being Ichaver Iba is also across and in the West of Ukyor stream.”

(4) That the land in dispute … therefore is that lying and situate between Ukyor stream in the West, Ubya stream in the North and Sham road up to its ‘Y’ junction with Nderakur road and in the East on Nderakur road.

(5) That within the area in dispute the 2nd defendant has a compound comprising twelve grass huts west of and along Nderakur road. That also seen, was the 5th defendant’s compound West of and across and on the threshold of Nderakur road comprising of 2 round grass huts. The defendants also have numerous farms in this area which are yet to be planted. The 1st plaintiff has a compound close to Ukyor stream comprising of 15 grass huts. The old mined desolate compound of the 1st plaintiff was also seen close to Ukyor stream marked by a well and mango tree. The desolate compound of the 1st plaintiff on the land in dispute no doubt is older in age than the 2nd and 5th defendant’s compounds.

(6) That their view is that the original lands of the plaintiffs and defendants are across and East of Nderakur road and Ukyor stream respectively and that both parties had however expanded to the land in dispute, a practice which is established.

That the question which then arises is who, between the parties in their expansionist bids got to the land in dispute first.

It is in the light of all the above, the trial Area Court came to resolve the question in paragraph (7) above in favour of the 1st plaintiff – Ghafan Iba whom, in my view, they rightly found to have an old ruined desolate compound on the land, older than the compounds of the 2nd and 5th defendants and, that the 1st plaintiff was the first settler on the land in dispute and he thus had radical title thereto.

The trial court found it proved that the 1st plaintiff Gbafan Iba put his relation lorshe Boji in his said compound when he went to Tongov due to ill health. This is supported by the evidence of the plaintiffs and admitted by the defendants’ only witness DW1.

The trial Area Court said at page 36 of the records:-

Looking at the totality of the evidence on boundaries given by the parties in this case, we can see that the real issue in controversy between the parties is that of boundary. While the plaintiffs assert that the boundary between them and the defendants is Harga-Nderakur road, the defendants assert that Ukyor stream is the boundary between them and the plaintiffs. Parties however went about attempting definitions of other boundaries of the land. In any event the land in dispute is not in dispute. All the boundary features described in Court being Uabya stream was seen in the North stretching to sham road which interjects with Harga-Nderakur road found in the East and likewise Ukyor stream was seen in the West stretching to the South and virtually reaching the Harga Nderakur road. The land in dispute as claimed by the parties is therefore known by us as well as the parties. The wrong positioning of the cardinal points is therefore not fatal. It is the substance of the evidence that matters and not the form.”

The Area Court was right, so was the appellate High Court in upholding the decision.

I have taken the liberty to set out at length the argument of counsel which I have carefully considered together with the evidence adduced by the parties. I deduce that the plaintiffs were claiming their land covering the original settlements of their ancestors lying before Ukyor stream, and that across it. This later part is the area which the 1st plaintiff, Gbafan Iba expanded to and made his compound before he went to live with his mother’s people due to ill health. Their entire land is thus before the stream and across the stream. The defendants were counter claiming the land across Ukyor stream. What the trial Area coul1 did was to identify from the evidence and its visit to the locus to narrow down the real area in controversy. It then found that it is that across the Ukyor stream. It was controversy sparked off, I believe by the return of Gbafan to the settlement he had set up before he went away.

I agree with learned counsel for the respondent’s submission that there was proof of the identity of the land as exemplified by the testimony of the respondent at pages 4 and 5 of the records, PW2 on page 7, PW3 on page 15 and 17 which he set out. I also uphold his submission that the root of title was established, and that there is no provision under the law compelling the 1st plaintiff to testify in the claim brought and defended by families in a representative capacity.

It seems to me that the appellant have not followed the evidence before the trial court systematically nor seen all the obvious inferences therefrom and they misrepresented much of the evidence adduced by the respondent and his witnesses. For example, it was submitted for them that it was perverse of the trial court to resolve the issue of the first settlement in favour of the 1st plaintiff because he had ruined desolate compound older than the compounds of the 2nd and 5th defendants, that this is clearer when it is seen that nobody testified about 1st plaintiff’s old ruined desolate compound nor was there any evidence on record of the relative ages of compounds of plaintiff and defendants on the land.

I should think the appellants were simply denying the obvious and twisting the evidence and all the obvious inferences therefrom to suit their complaints in this appeal, which the appellate High Court rightly found frivolous. There is sufficient evidence on record including those reproduced earlier in this judgment regarding the identity, boundary and root of title of the land in dispute, from which the trial Area Court came to its conclusion rightly, upheld by the High Court.

It is settled law that evidence of first settlement is acceptable to prove the acquisition of title to land, the fact of first settlement being one of the oldest methods of acquiring title. If placed before the court and is accepted by it, title to the land can be declared based on such evidence of tradition alone – See Odofin v. Ayoola (1984) 11 SC 72 at 144 per Oputa, JSC, Oluyole v. Olofa (1968) NMLR 462, Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177at 209, per Iguh, JSC.

In this case, the trial Area Court was satisfied that the respondents had title to the land before the Ukyor stream and then Gbafan first settled on the land across the stream in his expansion bid from where his family had been. I hold the view that the trial court was entitled, on its findings, supported by evidence before it, to award title to the land to the respondent as it did.

Also, it is trite law that an appellate court will not ordinarily disturb findings of fact made by a trial court which are supported by evidence unless that court is found not to have made proper use of the opportunity of seeing and hearing the witnesses at the trial or has been shown to have taken an erroneous view of the evidence or the findings are perverse in the sense that they do not flow from the evidence which it accepted. See Woluchem v. Gudi (1981) 5 SC 291 at 295 and 326, Alli v. Alesinloye (supra).

I see none of these circumstances in this case to warrant any interference with the trial court’s finding, or that by the appellate High Court, which also rightly refused to do so.

Also, this is a case in which two lower courts have made findings and an appellate court such as this court, is always loath to disturb such findings. This court will not therefore disturb those findings. The appellants raised so much dust in their submission about proof of boundary and history of title to the land in dispute, which they insisted were not proved by the respondent. This is totally preposterous and misconceived. A claimant who has produced evidence that he acquired his title by settlement cannot be accused of not proving how he acquired his title and whom the original owners of the land are. See Alli v. Alesinloye (supra). Title to land historically could be acquired by conquest, grant, or settlement. In the case of settlement there can be no further question of how the settler became the owner. For the settler thus undoubtedly becomes the original owner and title to the land commences from him. So it is with the respondent and Gbafan herein.

It is note-worthy that in Alli v. Alesinloye (supra) at p. 216 – 217 Ogundare, Justice of the Supreme Court, had this to say about the right of a claimant who claims to acquire land by settlement and how a trial court, as in this case ought to approach rival claims to the land. I find myself guided where the learned jurist stated thus:-

“I think the learned trial Judge did justice to the case before him …. On the evidence which he accepted, he found that it was Opeagbe who settled on the land in dispute, not Aleshinloye … As those crucial findings adequately supported by the credible evidence before him, I think it is erroneous for the court below to interfere with those findings…

Both (parties) claimed settlement on the land. The question to resolve is who settled on the land? … to say that there must be proof of how Opeagbe acquired titled from the original owners of the land is a misconception of the pleading that Opeagbe settled on the land. The pleading is not that he acquired it by conquest or grant but by settlement.

There can therefore be no question of original owners.

One last word – the appellants also repeatedly raised dust about the trial court’s use of evidence of what the trial Judges saw at the locus in quo. This was unnecessary. The evidence given by parties and their witnesses would have been reinforced by what the court observed. For example, there was evidence that Gbafan had settled beyond the Ukyor stream for 2 years before he proceeded to Tongov due to ill health. If he was there for 7 years and came back 3 years before this suit and the appellant’s huts on this land were, as given in evidence, only one year and four years old, is it not correct to conclude that his settlement was earlier in time? Would the trial court which saw the huts of both parties shut its eyes or fail to observe, fortified by the evidence at the trial, which huts were older than the others as the trial Area Court did in this matter? I have no doubt that the trial court applied in accordance with the law, the result of the visit to the locus-in-quo.

A visit and inspection of a locus by a trial court is as much a part of the entire proceedings in any suit and the same rules of evidence which apply to other parts of the proceedings apply. See Bello v. Kassim (supra). In view of the facts obtained at the locus, clearly set out in the judgment, as was other evidence of parties and their witnesses, the court below was entitled to treat same as evidence before it in determining the conflicting claims of the parties. See Orugbo v. Una (supra).

I see nothing perverse or any miscarriage of justice in the trial court’s application of the evidence, complained of by the appellants.

Finally, let me state this concerning the cases of Imana v. Robinson, A.-G., Kwara State v. Olawale and Owosho v. Dada (supra) cited by the appellants in support of their repeated and over flogged argument that the failure of Gbafan Iba, the 1st plaintiff to testify is detrimental to the respondent’s case.

It was not decided in those cases that failure of one person in a party to testify is detrimental to him or his party in all cases as a matter of law. In Owosho’s case for example the Supreme Court, per Aniagolu, JSC at page 167 of the report, was dealing with the failure of the defence in that case to adduce any evidence and the undesirability for the defence not to counter the evidence of the plaintiff in a case such as that, where the plaintiff had given evidence and called his witnesses. This, the court explained is predicated on the elementary principle in civil cases that they are decided on a balance of probabilities based on preponderance of evidence. It is only in A.-G., Kwara v. Olawale that the point was made that where a party’s case is such that he is expected to swear to its truth and be cross-examined and he fails to do so, it can be a ground to reject his case.

I dare say that this matter does not fall within such a case. The cases relied on by the appellants do not therefore support their case and the principles do not apply here.

It is in the light of all the foregoing, it must be held that all the three issues raised by the appellants must be answered against them and in favour of the respondent. The three grounds of appeal fail. The entire appeal which has no merit is hereby dismissed.

The judgment of the High Court of Benue State sitting at Katsina Ala, exercising its appellate jurisdiction which upheld the judgment of the trial Area Court, Katsina Ala, together with the award made thereunder, is hereby affirmed.

The successful respondent is entitled to costs against the appellants assessed at N10,000.00.

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Other Citations: (2006)LCN/2155(CA)