Hassan Boyi v. Magaji Alh. Ajiya (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EBIOWEI TOBI, JCA (Delivering the leading judgment)

This is an appeal against the decision of the High Court of Gombe State coram Hon. Justice H.Y. Heman (CJ), delivered on the 25/09/2017.

The brief fact of the case is that the appellants as plaintiffs commenced an action at the Gombe State High Court (hereinafter called, the lower court), by way of a writ of summons dated 12/10/2011 claiming the reliefs set out on the writ.

In the cause of the trial, pleadings were filed and exchanged, witnesses were also called and at the end of the litigation journey before the lower court, judgment was delivered in favour of the plaintiffs against the 1st and 3rd defendants, while the case of the plaintiffs against the 2nd, 4th to 18th defendants failed and was dismissed. The judgment of the lower court can be found at pages 643 – 691 of the record of appeal. The lower court in its decision found at pages 689 – 691 of the record held thus:

As earlier stated, the 2nd, 4th to 18th defendants have each traced his root of title to his respective portion of the land to his parents or grandparents and has been in continuous undisturbed possession, cultivating the said land. The law is trite that where a defendant is in possession of a disputed land, the onus is on the plaintiff to show that he has a better right of possession and unless that onus is discharged, the plaintiff cannot defeat the defendant. See Shoshai Gambo v. Zundul Turden (1993) 6 NWLR (Pt. 300) at 519. This onus of proof has not in the instant case been discharged, I so hold.

It is in the light of the foregoing and for all the reasons contained herein that I resolve the issue for determination against the plaintiffs and hold that the plaintiffs have failed to prove their claim on the preponderance of evidence against the 2nd, 4th to 18th defendants to be entitled to the reliefs claimed. In the result, the plaintiffs case against the 2nd, 4th to 18th defendants fails and is hereby dismissed.

As for the 1st and 3rd defendants, having admitted the claim against them in their pleadings and evidence, judgment is hereby entered against them in favour of the plaintiffs in respect of that portion of the land they reside and cultivate and accordingly grant the declaration sought, I make no order of general damages against them, the claim having been admitted.

The appellants went home with mixed feelings as the decision of the court partly favoured them. The appellants took the bold step to exercise their constitutional right of appeal by filing a notice of appeal on 6/12/17 which was amended on 22/02/2022 but deemed properly filed by order of this court on 1/03/2022. The extant notice of appeal is therefore the amended notice of appealed filed on 22/2/22 and deemed on 1/3/22. The appellants who were represented by Chief Caleb Ubale, Esq., filed their brief of argument on 14/04/2022 wherein 4 issues were formulated for determination from the 8 grounds in the amended notice of appeal. Viz:

1. Whether the trial High Court was right to have found and held that the plaintiffs/appellants did not establish with certainty and accuracy the identity of the land in dispute.
2. Whether or not the plaintiffs/appellants did not proof (sic) on the preponderance of evidence that the 1st, 2nd, 3rd defendants/respondents where (sic) not relations and came into the land in dispute at the same time at the instance of the appellants.
3. Whether the defendants did not plead and gave (sic) contradictory evidence of title in material terms and whether such weakness did not strengthened (sic) the case of the plaintiff.
4. Whether the appellants did not proof (sic) that the land was entrusted to the defendants particularly 1st, 2nd and 3rd defendants who later allowed other defendants on the land on the balance of probability.

In addressing this court on the first issue, learned counsel submitted that the lower court was in error when it failed to consider the last amended statement of claim of the appellants filed on 8/9/16 2016 at pages 394 – 405 of the record where the plaintiff stated the boundaries to the land in dispute and the evidence of the plaintiff witnesses establishing the boundaries. In the circumstance, it is the learned counsels submission that the finding of the lower court was perverse relying on Isiaq v. Soniyi (2009) All FWLR (Pt. 498) 361 ratio 20, James v. INEC (2016) 18 WRN 45; (2015) NWLR (Pt 1474) 552. It is counsel’s further submission that the identity of the land in dispute was not in issue and that the lower court having visited the locus makes the finding about the identity of the land untenable.

In addressing issues 2 and 4 jointly, learned counsel to the appellants submitted that the 1st and 3rd defendants in their amended statement of defence admitted the appellants claim. The failure of the lower court to make specific finding on the admission of the 1st and 3rd defendants to the effect of the relationship between them and the 2nd defendant is fatal to the decision of the lower court. It is the further submission of counsel that in the light of the evidence before the lower court to the effect that the 1st, 2nd and 3rd respondents are related, it was wrong for the court to have held that the admission of the 1st and 3rd defendants, respondents in this appeal is binding on them alone. Learned counsel stated that the contradictions in the evidence of the respondents witness in the lower court makes their case unreliable. Counsel relied on Kayili v. Yilbuk & Ors. (2016) 6 WRN 52; (2015) 224 LRCN 108 at 124 ratio 16.

Learned appellants counsel finally urged this court to hold that the appellants must not prove the relationship of the 1st, 2nd and 3rd respondents beyond reasonable doubt and urged this court to resolve the issue in favour of the appellants.

On issue 3, learned counsel submitted that none of the respondents pleaded and led evidence on how the land was founded, as the various piece of land they claimed to be theirs all have different roots of title, counsel referred to Oluyede v. Access Bank Plc. (2015) NWLR (Pt. 1489) 17 at 599 ration 2 and 3. The fact that the respondents are of different tribes and not Tangale and their concession that the land called Polido which is a Tangale word fortifies the case of the appellants.

It is the further submission of the appellants counsel that the 1st 16th respondents were on the land at the instance of the 1st respondent and based on 1st respondents admission that he got there at the instance of the appellants father, the lower court was wrong in its decision.

The evidence of the 2nd, 4th and 18th respondents to the effect of the land being cleared several years ago will not hold water because that was not pleaded, counsel submitted, referring to the law that evidence of facts not pleaded goes to no issue. He relied on Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414.