Isah Doma Gupe & Ors V. Tanko Umaru Kwaita & Anor (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A.

This is an appeal against the judgment of the High Court of Niger State delivered on the 21st day of October, 2013, by a Notice of Appeal dated the 13th of January 2014, and filed on the same date, on the following grounds, shorn of their particulars:
GROUND ONE:
The judgment delivered by the lower Court is against the weight of evidence.
GROUND TWO:
The lower Court erred in law when it predicated title to the land in dispute on the respondents based on the information of one Fulani man during its visit to locus in quo.
GROUND THREE:
The lower Court erred in law when it held that the evidence of the plaintiffs outweighs that of the defendants (Appellants).
GROUND FOUR:
The lower Court erred in law when it held that there was evidence in support of the borrowing of the land in dispute to the defendants and payment of tribute by them.

From these grounds, two issues were formulated for the appellant, they were adopted by the respondents; the issues are as follows:
Issue One:
Whether the respondents sufficiently proved title to the land in dispute

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to be entitled to judgment (Grounds 1, 2 and 3)
Issue Two
Whether from the pleaded facts and evidence led thereon, the lower Court was right in holding that Appellants were borrowed the land in dispute and paid tribute in consequence thereof.

Issue One: It is submitted for the appellants that in a claim of this nature, the burden is on the plaintiffs/respondents to succeed on the strength of their case and not on the weakness of the defendants/appellants? case, by establishing that there are two Independent lands, as described in paragraphs 4 and 10 of the statement of claim.

That averments in pleadings not supported by evidence is worthless, so also evidence led without corresponding averment; learned counsel referred to AKANDE V. ADISA (2012) 5 SCNJ part 2 at 532.

That also since it has not been pleaded that the land in dispute described in paragraph 10 of the statement of claim was ever borrowed to the defendants/appellants father P2’s evidence is not predicated on any paragraph of the statement of claim.
?
That while paragraph 5 of the statement of claim specifically mentioned Yakubu and Ishaku as having inherited the land

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described in paragraph 4 of the statement of claim, no mention was made of the appellants to have inherited their father of this land or cultivated the said land.

Learned counsel further submitted that it was not pleaded that the land in dispute was first cultivated by the respondents’ father and subsequently borrowed to the defendants/appellants’ father.

That the evidence led by PW1 in paragraph 3 of the witness’ statement on Oath and adopted as evidence is not pleaded and goes to no issue.

That also there is no written statement on Oath of any person known as Fulani man from pages 167 to 168 of the record, so there is no Fulani man who can be called a witness, yet the Court relied on his evidence; and also that the said evidence was not pleaded by either of the parties.

It is submitted for the respondents that even though the lands in paragraphs 4 and 10 were referred to as independent lands the two are integrated, and to appreciate that paragraphs 4, 5, 6, 7, 8 and 10 should be read together.
?
That historical evidence includes evidence of first settlement and cultivation of the land in dispute; and the founding of the land in dispute