(2018) LPELR-44443(CA)

Transcription

1 KWATO v. YEWA CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ABUBAKAR DATTI YAHAYA TANI YUSUF HASSAN MOHAMMED MUSTAPHA ON TUESDAY, 6TH FEBRUARY, 2018 Suit No: CA/A/728/2016 Before Their Lordships: Between BELLO KWATO KWATO (For himself and on behalf of Bello Kwato Kwato family) And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) ALHAJI ADAMU MAI'GARI MIJI YEWA (Suing and on behalf of Adamu Mai'gari Miji yewa) - Respondent(s) RATIO DECIDENDI

2 1. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence; Instances where an appellate Court will interfere "When evidence is led before a trial Court, it has the duty to assess and evaluate such evidence and ascribe probative value to it, before it can arrive at a decision one way or the other. It is a sacred duty and especially placed on the shoulders of the trial Court because it has the singular opportunity of seeing, hearing and observing the demeanour of witnesses as they give evidence before it. Once the trial Court performs its duty correctly, an appellate Court would not interfere. Therefore, where there is an appeal, the appellate Court would seek to know whether there is evidence upon which the trial Court based its findings, whether the evidence tendered was rightly accepted or rejected, and whether the evidence called by either party was placed on the imaginary scale and weighed in order to fathom which side preponderates. Once there is such proper evaluation by the trial Court, the appellate Court would not interfere -AGBONIFO Vs. AIWEREOBA (1988) 1 NWLR (Pt. 70) 325; OKINO Vs. OBANEBIRA (1999) 13 NWLR (Pt. 636) 535; SHA Vs. KWAN (2000) 8 NWLR, (Pt.670) 685; FAGBENRO Vs. AROBADI (2006) 7 NWLR (Pt. 978) 172 and EZE Vs. OKOLOAGU (2010) 3 NWLR (Pt. 1180) 183. It is thus the law, that unless a finding of a trial Court is perverse in that it was speculative to the extent that it was counter to the evidence led, or that the Court took into account a matter it ought not to, or failed to take into account a matter it ought to have taken account of, thereby shutting its eyes to the obvious or where the finding occasioned miscarriage of justice, the appellate Court would not interfere - ATOLAGBE Vs. SHORUN (1985) 1 NWLR (Pt. 2) 360 and ADIMORA Vs. AJUFO (1988) 3 NWLR (Pt.80) 1."Per YAHAYA, J.C.A. (Pp. 7-9, Paras. E-A) - read in context

3 2. EVIDENCE - PROOF OF TITLE TO LAND: Ways by which ownership/title to land may be proved; whether a plaintiff needs to prove all the five ways "Now a plaintiff, who is claiming a declaration for title to land, has five ways or means of proving same. They are- (a) traditional evidence usually based on the history of the people; (b) production of title documents duly authenticated; (c) acts of selling, leasing, renting out all or part of the land, farming on or portion of it; (d) acts of long possession and enjoyment of the land; and (e) proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See IDUNDUN Vs. OKUMAGBA (1976) 9-10 SC 227; AJIBOYE Vs. ISHOLA (2006) 13 NWLR (pt. 998) 628 at ; MANI Vs. SHANONO (2006) 4 NWLR (Pt.969) 132; OBINECHE Vs. AKUSOBI (2010) 12 NWLR (Pt. 1208) 383 and OTUKPO Vs. JOHN (2012) NWLR (pt. 1299) 357 at 376. It is to be noted that only one method out of the stated five methods, is enough to prove title to land - ALLI Vs. ALESINLOYE (2000) 6 NWLR (pt. 660) 177 and OGUNLEYE Vs. ONI (1990) 2 NWLR (Pt. 135) 745."Per YAHAYA, J.C.A. (Pp , Paras. F-E) - read in context 3. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Whether acts of possession and ownership can be considered where proof of title by traditional evidence fails "If a party pleads and relies on traditional history as proof of root of title and fails to discharge the burden of proof, he cannot turn round and rely on acts of possession or ownership. See AWODI Vs. AJAGBE (SUPRA) at page 599 D, and UDEZE Vs. CHIDEBE (1990) 1 NWLR (pt. 125) 141 at 160."Per YAHAYA, J.C.A. (Pp , Paras. E-A) - read in context

4 4. 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 "Again, although it is the law that in an action for declaration of title to land, a plaintiff must succeed on the strength of his case and not on the weakness of the defence because it is a discretionary relief and he has the burden of proof and will lose if no evidence is led, where the case of the defendant supports the case of the plaintiff, the plaintiff can take advantage of same in order to prove and establish his claim - MOGAJI Vs. CADBURY (NIG) LTD (1985) 2 NWLR (Pt.7) 393 and WOLUCHEM Vs GUDI (1981) 5 SC. 291."Per YAHAYA, J.C.A. (P. 17, Paras. B-D) - read in context 5. EVIDENCE - CROSS-EXAMINATION: Effect of failure to cross-examine a witness on material point "When PW1 and PW2 gave evidence, they were not crossexamined on the founding of the land and the various exercise of acts of ownership and possession. These are vital aspects of the case of the respondent which the appellant was contesting, yet the witnesses were not cross-examined on them. When a witness gives evidence and the opposing party is not in agreement with it, it behoves him to cross-examine the witness on that material evidence led. That will amount to a challenge indicating that the evidence is not in tandem with the position of the opposing party. In cross-examining the witness, the opposing party may even be able to contradict him to destroy the evidence led. Where a witness is not subjected to cross-examination on his evidence, then that evidence is deemed accepted and the Court will be entitled to act on it, as it is a tacit acceptance of the evidence. See GAJI Vs. PAYE (2003) 8 NWLR (Pt. 823) 588; EGWUMI Vs. STATE (2013) 13 NWLR (Pt. 1372) 525 and F.R.N Vs. SANI (2014) 16 NWLR (Pt. 1433) 299."Per YAHAYA, J.C.A. (P. 19, Paras. A-F) - read in context

5 6. EVIDENCE - VISIT TO THE LOCUS IN QUO: Position of the law as regards visit to the locus in quo "On locus in quo, the law is that it is the duty of the trial Court to visit the locus in quo where there is a conflict of evidence as to the existence or otherwise of something material to the case and such a visit would resolve the conflict in evidence or clear a doubt as to the accuracy of any piece of evidence on the subject. It is a discretion of the Court to make such a visit or not - NWANKPU Vs. EWULU (1995) 7 NWLR (Pt.407) 269 and UKAEGBU Vs. NWOLOLO (SUPRA). The Court is not bound to visit the locus in quo even if requested by parties. It depends upon the evidence and the Court."Per YAHAYA, J.C.A. (Pp , Paras. E-A) - read in context 7. LAND LAW - IDENTITY OF LAND: Duty of a plaintiff/claimant to establish the area of land in dispute "Before a Court can grant a declaration of title to land, there must be credible evidence describing the identity of the land with certainty. So a plaintiff who fails to establish and prove the boundaries of the land he claims, must fail in his bid, as it is a crucial aspect of his case. See UKAEGBU Vs. NWOLOLO (SUPRA) ; OKWARANONOBI Vs. MBADUGHA (2013) 17 NWLR (pt. 1393) 255 at 278; OKOKO Vs. DAKOLO (2006) 14 NWLR (pt. 1000) 401 and AYUYA Vs. YONRIN (2011) 10 NWLR (Pt. 1254) 135."Per YAHAYA, J.C.A. (P. 6, Paras. D-F) - read in context

6 8. LAND LAW - IDENTITY OF LAND: Effect of failure to prove identity of land "On the other hand, the appellant as the counterclaimant, had woefully failed to prove the identity of the land he claimed, with certainty. As a counter-claimant, the appellant was thus a plaintiff seeking for a declaration of title to the land in dispute. Where a plaintiff or any claimant fails to prove the boundaries of the land he claims, he must fail in the declaration of title he seeks - UKAEGBU Vs. NWOLOLO (SUPRA) at pages With this, the counter-claim could not succeed and the trial Court was well grounded when it dismissed the counterclaim."per YAHAYA, J.C.A. (P. 11, Paras. A-C) - read in context 9. LAND LAW - DECLARATION OF TITLE TO LAND: When a claim for declaration of title to land will be refused/dismissed "If pleadings and evidence of devolution of the land in dispute are not reliable, credible or plausible, the claim for title will fail -EZE Vs. ATASIE (2000) 6 SCNJ 209."Per YAHAYA, J.C.A. (P. 17, Paras. A-B) - read in context

7 ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment): This appeal has emanated from the decision of the Niger State High Court Minna, delivered on the 31st October, In his action before the High Court the plaintiff, who is now the respondent claimed: - (i) a declaration that the plaintiff is the rightful owner and entitled to the Customary right of occupancy over the disputed land situate at Yidna Mijiyewa Village; (ii) an order for forfeiture against the defendant and to vacate and deliver possession of the disputed land to the plaintiff. (iii) an order of perpetual injunction restraining the defendant, his privies, agents or whosoever that claims through him from interfering or exercising any act of trespass on the land. (iv) N1,000,000 as damages for trespass. (v) cost of litigation. According to the plaintiff, it was his father, called Mijiyewa, a farmer and a cattle rearer, who migrated from Wushishi and deforested the area in dispute which was then a thick forest, uncultivated by anybody. He settled there and founded the Yidna village. His father enjoyed quiet possession of the 1

8 disputed land and exercised various acts of ownership over it, lending parts of it to people. Later, the defendant's father migrated from Jankpa Village to Yidna and the plaintiff's father gave him a portion of his land to farm on loan. He did so and after the death of the defendant s father, the defendant began claiming ownership over the disputed land. Hence the action before the High Court. The defendant who is now the appellant, denied the claim and counter-claimed for the disputed land, stating that one Daudu Gwazo, the village head of Nukuchi village, was the one who gave his grandfather Gbetube the land in question, being a forest and he cleared it. The defendant s father Kwato-Kwato inherited the land from Gbetube, and continued to farm it. This Kwato-Kwato lent a part of the land to the plaintiff s father at his request, but he never farmed it. When this Kwato- Kwato died, the defendant, after the demise of his senior brothers, holds the disputed land in trust for other family members, who inherited it from their father, Kwato-Kwato. He therefore counterclaimed for the disputed land. 2

9 In his bid to prove the case, the plaintiff called two witnesses. The defendant called four witnesses. At the end of the trial, the Court gave judgment to the plaintiff and dismissed the counter-claim of the defendant. Dissatisfied, the defendant appealed to this Court. The appellant's brief, settled by Mr. Egbonodje, was filed on the 27th of January In it, the following three issues were formulated - (i) whether the lower Court s verdict is against the weight of evidence; (ii) whether the plaintiff s evidence was at variance with his pleadings vis-a-vis the disputed land's location/identity and; if so, the legal consequence thereof; (iii) whether or not the plaintiff was able to discharge the legal burden of proof placed upon him as to be entitled to Judgment in this case. For the respondent, Mr. Ndamitso filed the brief on the 19th of May 20t7 but deemed filed on the 3rd of July Therein, one issue was submitted for resolution - Whether the respondent was able to discharge the legal burden of proof placed on him as to entitle him to the judgment awarded in his favour. I find the issues suggested by the appellant apt as they have

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11 captured the grounds of appeal. I shall utilise them in resolving this appeal. ISSUE 2 Whether the plaintiff's evidence was not at variance with his pleadings vis-a-vis the disputed land's location/identity and; if so, the legal consequence thereof. Learned counsel for the appellant in relying on the cases of ILONA Vs. IDAKWO (2003) 32 WRN 121 at 135 and OTANMA Vs. YOUDUBAGHA (2006) 10 WRN 1 at 22, submitted that a plaintiff, in a claim for declaration for title to land, must prove the identity of the disputed land with certainty such that its identity will no longer be in doubt. He then referred to paragraph 8 of the statement of claim which he said is at variance with paragraph 6 of the statement of PW1 on oath. He said that the trial judge did not visit the locus in quo to ascertain whether the defendant's land is actually at the eastern part as pleaded or at the centre as stated by PW1. He urged us to allow the appeal on this Issue. The respondent in response, submitted that the identity of the land had been proved. He referred to the evidence of PW1 and PW2 in their statements on oath at paragraphs 2 4

12 and 1 respectively which he said, proved where the land in dispute is situate and its boundaries - paragraph 5 - and that they were not challenged under cross-examination. On the other hand he argued, the witnesses of the appellant gave contradictory evidence on the issue of the boundaries of the land in dispute. He referred to the statements of DW1, DW2 and DW3 on oath and compared same with their evidence under cross-examination, which he said were contradictory, supporting the finding of the trial Court that the appellant had failed to describe the land in dispute sufficiently and satisfactorily. He referred to UKAEGBU Vs. NWOLOLO (2009) 3 NWIR (Pt. 1127) 194 at 233 and 234. On failure to visit the locus in quo, learned counsel for the respondent, submitted that the appellant did not apply for same and no finding on the issue was made by the trial Court and therefore all arguments on it, go to no issue, This is similar to his contention that all the three Issues formulated by the appellant, do not amount to a challenge of any ratio decidendi of the decision of the trial Court and the appeal should therefore be dismissed on that ground. 5

13 The respondent has got it wrong in this vein. Ground 1 of the appeal is a complaint that the decision of the lower Court is against the weight of evidence. Ground 2 is error in law concerning the identity of the land and Ground 3 complains of error in law concerning legal burden of proof. The three issues were based on the grounds of appeal and are proper issues concerning the decision of the trial Court in respect of the ratio of the decision. His submission is therefore misconceived and I hold that the grounds of appeal and the three issues formulated from them relate to the ratio decidendi of the judgment. The appeal has been properly placed before us. Before a Court can grant a declaration of title to land, there must be credible evidence describing the identity of the land with certainty. So a plaintiff who fails to establish and prove the boundaries of the land he claims, must fail in his bid, as it is a crucial aspect of his case. See UKAEGBU Vs. NWOLOLO (SUPRA) ; OKWARANONOBI Vs. MBADUGHA (2013) 17 NWLR (pt. 1393) 255 at 278; OKOKO Vs. DAKOLO (2006) 14 NWLR (pt. 1000) 401 and AYUYA Vs. YONRIN (2011) 10 NWLR (Pt. 1254) 135. As for the respondent, the trial Court found at 6

14 page 106 lines of the record, that - "The evidence obtained under cross examination from DW1 (defendant) perfectly supports the plaintiff's evidence on the issue of the boundary of the land claimed by him." The boundary of the land to the East, is with old Nkuchi Paiko Road as stated by the respondent in his statement on Oath at page 9 of the record. He gave evidence at page 59 of the record but he was not cross-examined there, on the identity of the land in dispute. On the other hand at page 51 of the record, DW1 under cross-examination, stated that the boundary of the land in dispute to the east, is with old Nkuchi, Paiko road. This is why the trial Court at page 106, found that the evidence of DW1 under cross-examination, supported the plaintiff's evidence on the boundary of the land in dispute. When evidence is led before a trial Court, it has the duty to assess and evaluate such evidence and ascribe probative value to it, before it can arrive at a decision one way or the other. It is a sacred duty and especially placed on the shoulders of the trial Court because it has the singular opportunity of seeing, hearing and observing the 7

15 demeanour of witnesses as they give evidence before it. Once the trial Court performs its duty correctly, an appellate Court would not interfere. Therefore, where there is an appeal, the appellate Court would seek to know whether there is evidence upon which the trial Court based its findings, whether the evidence tendered was rightly accepted or rejected, and whether the evidence called by either party was placed on the imaginary scale and weighed in order to fathom which side preponderates. Once there is such proper evaluation by the trial Court, the appellate Court would not interfere -AGBONIFO Vs. AIWEREOBA (1988) 1 NWLR (Pt. 70) 325; OKINO Vs. OBANEBIRA (1999) 13 NWLR (Pt. 636) 535; SHA Vs. KWAN (2000) 8 NWLR, (Pt.670) 685; FAGBENRO Vs. AROBADI (2006) 7 NWLR (Pt. 978) 172 and EZE Vs. OKOLOAGU (2010) 3 NWLR (Pt. 1180) 183. It is thus the law, that unless a finding of a trial Court is perverse in that it was speculative to the extent that it was counter to the evidence led, or that the Court took into account a matter it ought not to, or failed to take into account a matter it ought to have taken account of, thereby shutting its eyes to the obvious or where 8

16 the finding occasioned miscarriage of justice, the appellate Court would not interfere ATOLAGBE Vs. SHORUN (1985) 1 NWLR (Pt. 2) 360 and ADIMORA Vs. AJUFO (1988) 3 NWLR (Pt.80) 1. From the evidence of the respondent and the crossexamination of DW1, it is obvious that the respondent had described the identity of the land to the satisfaction of the trial Court which is well founded. As for the appellant as the defendant/counter-claimant, the trial Court at page 109 of the record found that his witness had given "Contradictory evidence on the Issue of the boundaries of the disputed land." I have looked at the record of appeal again. At page 32 of the record is the statement on oath of DW1 and at paragraph 23, he gave the identity of the land in dispute. Under cross-examination at page 61, he contradicted his evidence in chief when he said the boundary to the east, is with old Nkuchi, Paiko, instead of the deposition in his sworn statement at page 32 that the boundary to the east, is with "Gbetubi." DW2 in his statement on oath, paragraph 27 (page 36 of the record), stated that the land to the North shares boundary

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18 with Padah Pata Sulu, to the South it shares boundary with Gbetubi, and to the West it shares boundary with the defendant's house. Under cross-examination at page 62 of the record, he contradicted his evidence in chief when he said the land in dispute shares boundary to the South with Waziri, and to the West "not by anybody". He was not reexamined. DW3 in his statement on Oath at paragraph 30 (page 40 of the record) said the land shares boundary to the South with Gbetubi and to the West, with the defendant's home. But under cross-examination, he contradicted himself and said the land in dispute shares boundary to the South, with Awuwajhi and to the West, with one Ketube! He was not reexamined. The trial Court was therefore right when it found that the witnesses of the appellant had given contradictory evidence on the boundaries of the land in dispute. It was a proper review and evaluation of the evidence led on the identity of the land in dispute. We cannot interfere. The result is that the respondent was able to prove and establish precisely by cogent evidence, the identity of the land in dispute, thus discharging that burden that was placed on him. 10

19 On the other hand, the appellant as the counter-claimant, had woefully failed to prove the identity of the land he claimed, with certainty. As a counter-claimant, the appellant was thus a plaintiff seeking for a declaration of title to the land in dispute. Where a plaintiff or any claimant fails to prove the boundaries of the land he claims, he must fail in the declaration of title he seeks -UKAEGBU Vs. NWOLOLO (SUPRA) at pages With this, the counter-claim could not succeed and the trial Court was well grounded when it dismissed the counterclaim. Issue No. 2 is resolved against the appellant. ISSUES 1 AND 3 TOGETHER 1. Whether the lower Court's verdict is against the weight of evidence; and 3. Whether or not the Plaintiff was able to discharge the legal burden of proof placed upon him as to be entitled to judgment in this case. Learned counsel for the appellant submitted that the decision of the trial Court is against the weight of evidence in that in the founding of the land in dispute, the respondent had failed to specify, in the statement of claim, the date/year when his late father migrated to and founded the land. 11

20 On the other hand he said, the pleadings and the evidence of the appellant show that his late grandfather (Gbetube Barje) founded and deforested the land over 100 years from thence and from him through inheritance, to the appellant's father and to him. He placed reliance on DAGACI OF DERE Vs. DAGACI OF EBWA & ORS (2006) ALL FWLR (Pt. 306) 786 at 849 and submitted that the appellant had thus established and painted a genealogical tree of the family ownership of the land. On ownership of features/economic trees on the land, learned counsel for the appellant submitted that the pleadings of the respondent only averred that features on the land include Mango trees planted by the family members of the plaintiff, and no names were given. On the other hand, the pleadings of the appellant show the number of each economic tree planted on the land which were planted by the appellant's father as well as the well he dug therein. He argued that the evidence of DW1, DW2 and DW3 tallied with the pleadings and were not challenged or controverted under cross-examination. He then submitted that if the evidence had been carefully considered, the scale of justice would 12

21 have been in favour of the appellant. Learned counsel also submitted that the respondent had failed to discharge the legal burden of proof placed upon him - Section of the Evidence Act 2011, in that although the boundaries of the land pleaded by both parties were different, the trial Court had failed to visit the locus in quo - Section 127 of the Evidence Act, and the respondent had failed to call anybody allegedly sharing boundary with him, to testify. Further, that the Haraji (tax) the respondent said he was collecting from tenants on the land was not particularized in the pleadings and not established by evidence. He referred to OTANMA Vs. YOUDUBAGHA (2006) 10 WRN 1 at on identity of land. In disagreeing with the submissions of the appellant, learned counsel for the respondent argued that the respondent had discharged the legal burden of proof on him to be entitled to judgment, and that he relied on evidence of traditional history in proving his title, out of the five ways of proof. When claiming under traditional history he said, the respondent had proved the requirements stated in AWODI Vs. AJAGBE (2015) 3 NWLR (Pt 1447) 578 at 613 and UKAEGBU 13

22 Vs. NWOLOLO (SUPRA) at l. Relying on the statement of claim, paragraphs 2, 3 and 4 of the witness statement on oath of PW2 (page 9 of the record) and paragraph 2 of the statement on oath of PW1 (page 13 of the record), learned counsel submitted that the respondent had proved the founder of the disputed land, how it was founded and how it devolved on to him. He submitted that the trial Court had at page 108 of the record, held that the failure to cross-examine PW2 on the evidence relating to the founding of the disputed land and the exercise of acts of ownership by the respondent on it, amounts to a tacit acceptance of the evidence of the respondent - AWODI Vs. AJAGBE (SUPRA) and UKAEGBU vs. NWOLOLO (SUPRA). Learned counsel also referred to paragraphs 6 and 7 of the statement on Oath of pw2 (page 10 of the record) and paragraphs 3 and 6 of the witness statement on Oath of PW1 at pages 13 and 14, and submitted that they have established the exercise of the acts of possession by the respondent, which were not challenged or discredited under cross-examination and so deemed admitted - FRN Vs. SANI (2014) 16 NWLR (pt. 1433) 299 at 337 and GAJI Vs. PAYE 14

23 (2003) 8 NWLR (Pt.823) 588 at 605. On the evidence led by the appellant on who founded the land in dispute, learned counsel for the respondent referred to pages of the record, at paragraphs 5, 7, 21 and 22 on how Daudu Gwazo gave the land in dispute to the appellant's grandfather Gbetube, and who inherited it successively. Evidence was led on the averments. However he argued, cross-examination revealed contradictions in the evidence of the witnesses and the appellant, so much so that the trial Court at page , held that there was an embarrassing gap on linkages in the claim of succession of the land in dispute as many names were omitted and that the evidence of witnesses of the appellant had been so discredited that no probative value could be attached to them. The Court at page 106 he said, held that the respondent satisfied the acid test as he had proved how his grandfather founded the land in dispute, which was supported by the evidence of DW1. He urged us to dismiss the appeal. Now a plaintiff, who is claiming a declaration for title to land, has five ways or means of proving same. They are - 15

24 (a) traditional evidence usually based on the history of the people; (b) production of title documents duly authenticated; (c) acts of selling, leasing, renting out all or part of the land, farming on or portion of it; (d) acts of long possession and enjoyment of the land; and (e) proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See IDUNDUN Vs. OKUMAGBA (1976) 9-10 SC 227; AJIBOYE Vs. ISHOLA (2006) 13 NWLR (pt. 998) 628 at ; MANI Vs. SHANONO (2006) 4 NWLR (Pt.969) 132; OBINECHE Vs. AKUSOBI (2010) 12 NWLR (Pt. 1208) 383 and OTUKPO Vs. JOHN (2012) NWLR (pt. 1299) 357 at 376. It is to be noted that only one method out of the stated five methods, is enough to prove title to land - ALLI Vs. ALESINLOYE (2000) 6 NWLR (pt. 660) 177 and OGUNLEYE Vs. ONI (1990) 2 NWLR (Pt. 135) 745. If a party pleads and relies on traditional history as proof of root of title and fails to discharge the burden of proof, he cannot turn round and rely on acts of possession or ownership. See AWODI Vs. AJAGBE(SUPRA) at page 599 D, 16

25 and UDEZE Vs. CHIDEBE (1990) 1 NWLR (pt. 125) 141 at 160. If pleadings and evidence of devolution of the land in dispute are not reliable, credible or plausible, the claim for title will fail -EZE Vs. ATASIE (2000) 6 SCNJ 209. Again, although it is the law that in an action for declaration of title to land, a plaintiff must succeed on the strength of his case and not on the weakness of the defence because it is a discretionary relief and he has the burden of proof and will lose if no evidence is led, where the case of the defendant supports the case of the plaintiff, the plaintiff can take advantage of same in order to prove and establish his claim - MOGAJI Vs. CADBURY (NIG) LTD (1985) 2 NWLR (Pt.7) 393 and WOLUCHEM Vs GUDI (1981) 5 SC After stating the evidence led by both parties, the trial Court found at page 106 of the record - " By a communal reading of the statement of defence and the testimony of the defence witnesses, the defendant did not deny the plaintiff's statement of claim. While on the plaintiff I am satisfied that he has satisfied the acid test, because he has proved how his 17

26 father migrated and settled at the disputed land which was thick and uncultivated forest, The testimony of DWI supports that his grandfather used to help plaintiff's father to chase hyenas." Was this borne by the evidence? From paragraphs2, 3, 4, 5, 6 and 7 of the statement of claim, the respondent pleaded how his father migrated from Wushishi to the area in dispute which was a thick forest uncultivated by anybody. He deforested it and settled there exercising acts of ownership and living with his family members. He loaned part of the land to others to farm including the appellant's father. It was after his demise that the appellant sometime in 2009, started asserting or claiming ownership of the land loaned to his father. The evidence of the respondent as PW2 in his statement on Oath, paragraphs 2, 3, 4, 5, 6, 7, 8 and 16 (pages 9-11 of the record) and that of PW1 in paragraphs 2,3,4, and 10 of the his statement on oath (pages of the record), have been in line with the pleadings and evidence and have shown that the respondent's father migrated to Wushishi to found the land about 90 years from thence, contrary to the submission of counsel for the appellant. 18

27 When PW1 and PW2 gave evidence, they were not crossexamined on the founding of the land and the various exercise of acts of ownership and possession. These are vital aspects of the case of the respondent which the appellant was contesting, yet the witnesses were not crossexamined on them. When a witness gives evidence and the opposing party is not in agreement with it, it behoves him to cross-examine the witness on that material evidence led. That will amount to a challenge indicating that the evidence is not in tandem with the position of the opposing party. In cross-examining the witness, the opposing party may even be able to contradict him to destroy the evidence led. Where a witness is not subjected to cross-examination on his evidence, then that evidence is deemed accepted and the Court will be entitled to act on it, as it is a tacit acceptance of the evidence. See GAJI Vs. PAYE(2003) 8 NWLR (Pt. 823) 588; EGWUMI Vs. STATE (2013) 13 NWLR (Pt. 1372) 525 and F.R.N Vs. SANI (2014) 16 NWLR (Pt. 1433) 299. There was also unchallenged evidence of devolution of the land in dispute from the respondent's father to the respondent. 19

28 For the appellant, I had earlier held that he failed to establish the identity of the land in dispute and with that, other aspects of the case would fail. However, apart from this issue, the appellant had completely failed to lead evidence of the claim of succession of the disputed land from his grandfather to him. DW1, DW2, DW3 and DW4, under cross-examination, failed to mention Shagabe Berje, Kpetu Gbadna and Padah Berje in the claim of succession and devolution of the land in dispute to the appellant. Further, DW2 under cross-examination, stated that "Daudu loan Kwato-Kwato the land." This is contrary to his pleadings and the case of the appellant. From the above, it is clear that the findings of the trial Court, were based on the evidence led and the evaluation of the evidence. On locus in quo, the law is that it is the duty of the trial Court to visit the locus in quo where there is a conflict of evidence as to the existence or otherwise of something material to the case and such a visit would resolve the conflict in evidence or clear a doubt as to the accuracy of any piece of evidence on the subject. It is a discretion of the Court to make such a visit or not - NWANKPU Vs. EWULU 20

29 (1995) 7 NWLR (Pt.407) 269 and UKAEGBU Vs. NWOLOLO (SUPRA). The Court is not bound to visit the locus in quo even if requested by parties. It depends upon the evidence and the Court. In the instant matter, the evidence of PW1 and PW2 is intact as there was no cross-examination and defendant was deemed to have accepted same. On the other hand, the evidence of the identity of the land in dispute led by the appellant had been so discredited that no probative value was attached to it. There was therefore no overwhelming need to visit the locus in quo. It is clear to us, that the findings of the trial Court are supported by the totality of the evidence adduced. They are not perverse, There is no reason whatsoever to tamper with the findings. From the evidence adduced by both parties, the respondent has a better title, has discharged the legal burden on him, and is therefore entitled to judgment. The respondent had clearly failed to prove his title to the land In dispute as put up in the courter-claim. Issues 1 and 3 are thus resolved in favour of the respondent. This appeal therefore lacks merit and it is dismissed. 21

30 The judgment of the trial High Court Minna Niger State in Suit No. NSHC/MN/98/2015 delivered on the 31st October 2016, is affirmed. N50,000 costs to the respondent. TANI YUSUF HASSAN, J.C.A.: My learned brother, Abubakar Datti Yahaya, JCA, obliged me with the draft of his lead judgment just delivered. I agree entirely with the reasoning therein and the conclusion that the appeal lacks merit and deserves to be dismissed. Accordingly I dismiss the appeal and affirm the judgment of the lower Court, MOHAMMED MUSTAPHA, J.C.A.: I read before now a draft copy of the judgment just delivered by my learned brother, Abubakar Datti Yahaya JCA, and I agree with his reasoning and conclusion. I too would dismiss the appeal for the same reasons adduced therein. I abide by the consequential orders, including the order as to costs in favour of the respondent. 22

31 Appearances: Ma'aruf Mustapha For Appellant(s) I. M. Ndamitso For Respondent(s)