Ahaji Bellon Bello v. Haruna Galadima & Ors

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

VICTORIA TOOCHUKWU NWOYE, JCA (Delivering the leading judgment)

This appeal is against the decision of the High Court of Kebbi State in suit No: KB/HC/1/2020 delivered on the 11th of October, 2021.

The parties at the trial court were the appellant as claimant, and the respondents as defendants. The lower court, at the end of the trial, delivered judgment and dismissed the case of the appellant. The appellant, dissatisfied with the lower court’s decision, filed a notice of appeal on the 23rd of January, 2023.

In the facts that gave rise to this appeal, as contained in the originating processes, which are on pages 1 to 12 of the record of appeal, the appellant as claimant at the trial court sought the following reliefs:

1. A declaration that the claimant as against the defendants, jointly and severally is entitled to exclusive right of occupancy over the land in dispute.
2. A declaration that the actions of the defendants jointly and severally constitute unjustifiable acts of trespass
3. An order of perpetual injunction restraining the defendants jointly and severally their assigns, servants, privies from further acts of trespass and or howsoever disturbing the claimants right of exclusive possession and quiet enjoyment of the land in dispute.
4. An order directing the defendants, jointly and severally especially the 1st, 4th, 5th and 6th defendants to pay the claimant general damages in the sum of N5m (Five million) only.
5. Cost of the action.

The appellant as claimant at the lower court called one witness who testified on 22nd of July, 2020 as shown on pages 191 to 193 of the record of appeal. At the close of the claimant’s case, the defendants opened their defence and called four witnesses.

The lower court after hearing parties dismissed the case of the appellant as claimant, the appellant aggrieved by this decision, has come before us. Briefs were filed and exchanged. The appellant formulated the following five issues for determination:

1. Whether a court of law where contending parties before it presented their pieces of evidence is bound to consider those pieces of evidence before arriving at a decision.
2. Whether in a case for declaration of title to land a court of law is duty bound to determine whether or not the claimant has proved the specific method of proof of his title as pleaded by him, before considering his method of proof of that title.
3. Whether from a dispassionate consideration of the judgment of the court his lordship did not misconceive the case of the appellant, decided it under that misconception and thereby visited a failure of justice on him.
4. Whether upon a calm and purposeful consideration of the pleadings and evidence of the appellant he proved the grant of the land to his late father by a traditional leader to enable him rely on acts of long possession and enjoyment of same.
5. Whether upon a holistic consideration of the case on appeal the judgment of the lower court is against the weight of evidence.

The respondent on the other hand formulated three issues as follows:

1. Whether the judgment of the lower court was against the weight of evidence.
2. Whether the judgment of the lower court failed to take into consideration the evidence of the parties in arriving at its decision, particularly the evidence of appellant’s sole witness, hence, such affected the appellant’s right to fair trial.
3. Whether failure of the appellant to plead and prove with evidence how Sarkin Gwandu Haruna founded the land in dispute and obtained title over it is not fatal to the appellant’s case.

The learned counsel to the appellant, Mr. E. C. Oguelina, on issue one, contended that the lower court failed to evaluate the evidence presented but instead dealt only with the submissions of counsel in their final addresses before reaching a conclusion. He referred to Sahabi Umaru Tsalibawa v. Hajiya Habiba (1991) 2 NWR (Pt. 174) 461.

On issues two, three and four, which were argued together, the appellant contended that failure of the lower court to first determine whether Sarkin Gwandu Haruna made a customary grant of the land in dispute to the appellant’s father before arriving at a conclusion that the appellant did not prove the title of Sarkin Gwandu Haruna over the land occasioned miscarriage of justice. Obineche v. Akusobi (2010) 38 WRN 117, Anyafulu v. Meka (2014) 16 WRN 53, Samuel Kolapo & Ors. v. Chief T.O Alade (1985) 3 NWLR (Pt. 12) 352 and on the principle of proof of title while citing Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263 among other cases submitted that there is a clear difference between the mode of acquisition where the mode of acquisition of title to land is proof of title to land.

This is because where the mode of acquisition of title to land is proved and where it is through traditional evidence, then, if the evidence of the traditional history is inconclusive, the party can bend over and rely on evidence of long possession or acts of ownership.

On issue five, the contention of the appellant is that the judgment of the lower court is against the weight of evidence.

Learned counsel, submitted that the duty of the trial court is to resolve issues in dispute between the parties. Reliance was placed on Emmanuel U. Okeke v. James O. Oche (1994) 2 NWLR (Pt. 329) 688, Uzor Idika & Ors. v. Ndukwe Erisi & Ors. (1988) 2 NWLR (Pt. 78) 565.

The court was urged to allow the appeal and set aside the judgment of the lower court.

On the other hand, the learned counsel to the respondents, while arguing the three issues formulated, submits that the burden of proof is on the party who asserts and failure to prove cannot be entitled to a declaratory relief. He cited Okoye v. Nwankwo (2016) 10 WRN 62, Abubakar v. INEC (2020) 12 NWLR (Pt. 1737) 61 and Nwololo v. Ukegbu (1997) 4 NWLR (500) 436. He argued that in the absence of any cogent and credible evidence before the lower court, the declaratory reliefs sought by the appellant could not be granted.