CONDITIONS TO BE PLEADED AND PROVEN WHEN RELYING ON TRADITIONAL HISTORY AS ROOT OF TITLE

CASE TITLE: NUHU V. ZAKAR & ORS (2018) LPELR-45632(CA)

PRACTICE AREA: LAND LAW

HEADING: CONDITIONS TO BE PLEADED AND PROVEN WHEN RELYING ON TRADITIONAL HISTORY AS ROOT OF TITLE

LEAD JUDGMENT: HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. 

SUMMARY OF JUDGMENT

INTRODUCTION:
This appeal borders on Land Law.

FACTS:
This appeal is against the judgment of the High Court of Yobe State in Suit No YBS/HC/PT/21CV/2014 delivered by Honorable Justice I. W. Jauro on the 6th of February, 2017. The Appellant was the claimant in the High Court and the Respondents were the defendants. The dispute leading up to the action in the High Court was in respect of ownership of a farmland lying and being at Garin Yawale by Gadaka in Fika Local Government Area of Yobe State and it was bounded on the east by the house of Kondo, on the west by Babaji Village grave yard, in the north by a farm owned by Yusuf Dadinka and in the south by a farm owned by late Doya Data.

The case of the Appellant was that the farmland was originally founded and cleared by his grandfather, one Yawale, who was also the father of the first Respondent and that his grandfather dug a well on the land, which was still in use till date. It was his case that by virtue of his grandfather being the founder of Garin Yawale, he was made the Ward Head and he left the farmland for the purposes of grazing and the hosting of immigrants. It was his case that upon the death of his grandfather, he was succeeded as Ward Head by his son, Gimba Yawale, the younger brother of the first Respondent’s father, and who reigned as Ward Head for twelve years before relocating to Gadaka, and he was succeeded by Kondo Yawale as Ward Head, and who reigned for seven years before his death and was succeeded by Bulama Baba who reigned for ten years before his death.
It was the case of the Appellant that during the reigns of Kondo Yawale and Bulama Baba, a portion of the farmland was lent to Dogo Tika of Kalaye Village and Musa Maiduwa of Maiduwa Village and that after the death of Bulama Baba, Gimba Yawale borrowed the farmland and commenced farming thereon. It was his case that at a point in time, the first Respondent pleaded with Gimba Yawale to be allowed to farm on a portion of the land and he was allocated the western part of the farm land to farm upon and that this was how the first Respondent came unto the land. It was his case that upon the death of Gimba Yawale, his son, Haruna Gimba, and Audu Bulama took over the eastern part of the farmland and commenced farming thereon until 2013 when the first Respondent drove them from the land and sold the farmland to the second Respondent who in turn sold it to the third to the fifth Respondents. It was his case that the father of the first Respondent never farmed on the land in dispute and was heard to have disclaimed ownership of the farmland before his death and that upon the death of the father of the first Respondent, his estate was distributed amongst his heirs and the farmland was not included. The claims of the Appellant were for declaratory orders that upon the death of Yawale, the ownership of the farmland devolved upon all his legal heirs, including himself, jointly and that the sale of the farmland to the second to fifth Respondent by the first Respondent was null and void and of no effect whatsoever and for an order of injunction to restrain anyone and everyone from tampering with the farmland.

The Respondents filed a joint statement of defence and they admitted that the Appellant and the first Respondent had a common grandfather called Yawale but it was their case that the farmland in dispute was founded by one Doya Data, a relative of Yawale and that the well of the  farmland was dug by Zakar Dongo Yaro, the father of the first Respondent after he sought for and obtained the permission of one Lamba of Shambere. It was their case that it was the father of the first Respondent that requested for a grazing reserve around the well from Lamba of Shambere and that the matter was taken to the District Head of Fika who directed that the grazing reserve be carved out for the father of the first Respondent from the farmlands of one Aradu, Alhaji Muhammadu and others. ?The Respondents admitted the Ward Headship of Garin Yawale as pleaded by the Appellant, save that they contended that Kondo Yawale was ever Ward Head and it was their case that Dogo Tika never farmed on the land and that it was the first Respondent that lent a portion of the land to Musa Maiduwa and to Gimba Yawale. It was their case that the farmland formed part of the Estate of the late father of the first Respondent but that it was left out during the sharing of his Estate on the advice of Mai Gudi that “one day the heirs may decide to come back to their place of birth to reside.” The Respondents counterclaimed for declaratory orders that the father of the first Respondent was the owner of the farmland and that the first Respondent had the right to sell/mortgage the farmland to the second to fifth Respondents and they prayed for an order of injunction restraining the Appellant from trespassing on the land.

The matter proceeded to trial and in the course of which the Appellant called three witnesses in proof of his case and the Respondents called two witnesses in proof of their case. At the conclusion of the trial, Counsel to the parties filed and adopted their respective final written addresses and the High Court entered judgment dismissing the claims of the Appellant and the counterclaim of the Respondents. The Appellant was dissatisfied and therefore appealed to the Court of Appeal.

ISSUE(S) FOR DETERMINATION: 

The Court determined the appeal on this sole issue couched as follows:

“Whether the lower Court was right in dismissing the claims of the Appellant in view of the evidence adduced before the Court.”

DECISION/HELD:
On the whole, the Court found no merit in the appeal and accordingly dismissed same. The decision of the High court was therefore affirmed.

RATIO DECIDENDI

• EVIDENCE – TRADITIONAL EVIDENCE/HISTORY – What a party relying on traditional history is expected to plead and prove to establish his root of title; effect of failure of a party to prove same
• EVIDENCE – EVALUATION OF EVIDENCE – Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal
• APPEAL – INTERFERENCE WITH EVALUATION OF EVIDENCE – What an appellant must show to succeed in an appeal against evaluation of evidence by lower Court
• EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF – Whether a plaintiff can rely on the weakness in the case of the defendant to prove his own case in an action for declaration of title