Falke v Billiri Local Governemnt Council and Others (CA/J/164/2013) [2016] NGCA 32 (19 May 2016)

JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
This is an Appeal against the decision of the Gombe State High Court of Justice, delivered on the 2nd April, 2012 in Suit No. GM/150/2007 in which, Judgment was entered in favour of the Respondents and against the Appellant.
The Appellant before this Court was the Plaintiff at the trial High Court of Gombe. He took out a Writ of summons against the Defendants (now Respondents) on 23-07-07, first in the name of HARUNA YAKUBU which was later substituted with AHMADU FALKE, which substitution was effected vide the grant of a motion on notice dated 29-08-07 (at pages 12 to 22 of the Record), Ruling delivered on 08-10-07 (at pages 114 to 120 of the Record), wherein the present Appellant/Plaintiff sued the Respondents in a representative capacity on behalf of the Sarkin Baka Family. The Plaintiff claimed the piece of land referred to as ‘Yola Popandi Kulgul’ as belonging to his family and other families he represented, while the Defendants contend that the land claimed had been acquired as a grazing reserve by the 1st Respondent in 1963. The parties are ad idem in respect of the name of the land in dispute and the land is well known to the parties in dispute as ‘Yola Popandi Kulgul’ (paragraph 3 (b) of the Defendants’ affidavit as well as paragraph 13 of the Statement of Defence at pages 24 and 30 respectively of the printed Record of Appeal). At the close of trial, the suit of the Appellant was dismissed by the lower Court on 02-04-12. Dissatisfied, the Appellant filed this Appeal vide a Notice and Grounds of Appeal dated on 22-06-12, wherein he complained on eight grounds.  

The crux of the Appellant’s claim as Plaintiff is that the land known and called ‘Yala Popandi Kulgul,’ is owned by the Plaintiff and his siblings, children of late Sarkin Baka. They gave a portion of the land to a Fulani herdsman called Jagaba, to occupy temporarily. The District Head of Tanglang at the time, Abubakar Gaude, an uncle to Yakubu Sarkin Baka, mandated the latter to show Jagaba the place known as Yola Popandi Kulgul to reside temporarily. The Fulani man remained on the land peacefully until the siblings of Jagaba started laying claim to the ownership of the land after the death of the Plaintiff’s father, eight years before the commencement of the suit at the lower Court. Conversely, however, the Defendants claim that the area in dispute is a grazing reserve acquired since 1963 by the 1st Defendant, Billiri Local Government Council.

In line with the Rules guiding the procedure of this Court, parties exchanged their respective briefs of argument. At the hearing of the Appeal on 24-02-16, Chief Caleb Ubale Esq, learned Counsel for the Appellant, with him Ayuba Esq, adopted the Appellant’s Brief of argument deemed duly filed on 28-10-15 and relied on the arguments therein as the Appellant’s arguments in the Appeal. He urged the Court to allow the Appeal, set aside the Judgment of the lower Court and grant all the reliefs sought by the Plaintiff at the lower Court. While Emmanuel Nwaekwe Esq., learned Counsel for the Respondents, appearing with Maigari A. Lakata Esq. and Atna Kuyembo Esq., adopted the Respondents’ Brief of argument deemed properly filed on 04-02-16. He relied on the arguments contained therein as the Respondents’ arguments in the Appeal in urging the Court to dismiss the Appeal and affirm the Judgment of the trial Court.

Whereas learned Counsel for the Appellant formulated four issues for determination from his eight grounds of appeal, the Respondents distilled two issues. The Appellant’s issues are set out hereunder:
1.    Whether the Appellant did not prove his case on a preponderance of evidence both in his pleading and on the oral evidence (Grounds 2, 3, 4, 6, & 8).
2.    Whether the Respondents have proved the acquisition as claimed in law (Ground 5). 
3.    Whether or not the land in dispute was clearly described by the Appellant (Ground 1).
4.    Whether the exhibits rejected were properly rejected in law when the original is in the custody of the Respondent, and if the rejection did not occasion a miscarriage of justice (Ground 7).

The issues distilled by the Respondents are:
(1)    Whether in reconciling the pleadings, testimonies and exhibits it could said that the Appellant discharged the burden placed on him to merit Judgment in his favour (Grounds 1, 2, 3, 4, 5, 6, and 8). 
(2)    Whether the Exhibits rejected were legally admissible (Ground 7).

Having given an in-depth consideration to the two sets of issues formulated by the parties, I am of the view that issues one, two and three crafted by the Appellant seek out the same answer as issue one distilled by the Respondent; while issue four of the Appellant and issue two of the Respondent are synonymous. I will therefore address the issues in that order.

Issues one, two and three of the Appellant taken together with issue one of the Respondent:
Learned Counsel for the Appellant submits that since the law is that he who asserts must prove by credible evidence, (Section 136 of the Evidence Act, 2011 (as amended) and Agbaje V Fashola (2008) All FWLR (Pt. 443) 1302 at 1317), it is incumbent on the Defendants to prove the acquisition of the land in 1963, who acquired it and from whom. He argues that apart from stating the alleged fact of acquisition, the pleadings did not state from whom the land was acquired or who received compensation for the acquisition. In the course of the trial, the Plaintiff adduced evidence through six witnesses who narrated the history of the land and how the Defendants came to use the land.

Counsel submits that the evidence of PW1 was not contradicted or controverted under cross examination. He stated that the Fulani herdsman came onto the land as recently as 1998, and not 1963. The boundary neighbors of the land include Buba Yako to the east, Ishaku Ladigo to the south and PW1 also to the east. PW2, Joseph Manu was also a boundary witness as his land is to the west of the Plaintiff’s land, He also bought Ishaku Ladigo’s portion of the land to the south. PW3 Antiya Mai was a retired veterinary supervisor who served from 1956 to 1987 with the cattle reservation in Tangale Waje. He testified that, whereas grazing reserves were created from Sabon layi, Banganje and Lapandin Latin, Popandi Kulgul was not one of the places reserved as a grazing area. Indeed, that while he was in service, no area was reserved in Billiri as a grazing reserve. In addition, that all reserved areas are documented and such documents kept by the Local Government. PW4, Hassan Natumbo testified that he was aware that the Plaintiff, amongst others he named, used to farm the area along with him. PW5, a witness on subpoena, did not produce the document he was subpoenaed to produce. PW6, Haruna Falke, the Plaintiff’s brother, narrated how the family came to possess the land in dispute and all they have done to secure ownership of the land. His history of the land was not faulted nor disputed under cross-examination.

Counsel submits that the Defendants also called in seven witnesses in their defence of the suit. He contends that none of the witnesses was able to establish the root of the land in dispute: DW1, Alhaji Audi Peto, testified that the land was reserved in 1997 and not 1963 as pleaded in the Statement of defence, but didn’t tender any document to show how the area became a grazing reserve. DW2, Audu Tahir, the District Head of Tanglang and 2nd Defendant in the suit, stated that the land became a grazing reserve in 1963/1964, thus contradicting the DW1. Like the DW2, he did not produce any document to substantiate this assertion. He however claimed that the area was carved out as a grazing reserve by the Tangale Waje Native Authority and is the property of the Local Government. He admitted under cross examination that he has never seen any documents showing that compensation was paid to the real owners of the land. DW3, Ardo Gidado, is a cattle rearer and Ardo, and has been on the land for 12 years, during which time he also cultivated the land. DW4. David Sani inherited land from his father, who in turn inherited the land from his own father. He shared boundaries with Buba. The District Head informed him that the area was reserved in 2007 and so he stopped cultivating the land in 2009. Counsel contends that his evidence supports the Plaintiff’s case. DW5, Danladi Magaji, is the Village Head of Kulgul. He testified that it was also the District Head who told him that the area was reserved. However, he doesn’t know who the land was acquired from. DW6, Joshua Usman, was Chairman of a settlement Committee set up by the Military Administrator to settle disputes between farmers and herdsmen, and in respect grazing reserves and cattle routes, water pumps and vaccination centres in 1997. He testified that the dispute on the land in the area was reported to the Committee and they visited same. The Committee then ordered the people on the land to vacate the land after they confirmed that the place is a reserved area. He however did not produce any documentary evidence to substantiate this. He states that the Plaintiffs refused to vacate the land claiming that it was their property, and that therefore the Committee fined them for encroachment. Under cross examination, he admitted that for an area to be reserved, it has to be backed by law and that Government often pays compensation for such acquisitions. He could not remember if the area had been surveyed. Counsel submits that the witness made un-substantiated claims, lacking veracity and with no documentary evidence to support same, and even as the Committee had a secretary to record its proceedings in the person of Gabriel Yilwa, no minutes were produced before the Court. DW7, Iliya Bello, is a civil servant with the Veterinary Livestock Department of Gombe State and was an overseer for cattle routes and grazing reserves. He stated that there are documents containing all the grazing reserves and cattle routes in Billiri Local Government Area but failed to produce any before the Court. He claimed the area was carved out in 1962, 1963 and 1964 as a grazing reserve. Counsel submits that the witness lacked the legal capacity to give evidence as a staff of the Veterinary Livestock Department of Gombe State since he was not subpoenaed. However, that even if his evidence were to be considered, he had no documentary evidence to substantiate his assertions.

Counsel therefore submits that the Plaintiff’s witnesses were consistent and un-shaken in establishing their root of title to the land, Yola Popandi Kulgul, through historical facts before the Court, which were uncontroverted. The Plaintiff stated that it was an inherited family land which they have been farming without any disturbance or claim until only eight years before this suit, and that the evidence of some defence witnesses, such as DW4, lays credence to these facts. He contends that these facts having been proved evidentially, the burden shifts to the defence to prove that the land had been acquired by the Government as a grazing reserve, which assertion formed the crux of their defence. Counsel submits that they failed to do so as Government Reserves are not a matter of oral evidence, being documentary affairs of the Government. He submits that no documents were presented to the Court to prove any acquisition at any time of the land area known and called Yola Popandi Kulgul.

Counsel further submits that from the totality of the evidence, it is glaring that the Plaintiff discharged the burden placed on him by law under Section 135 of the Evidence Act, which settled the issue that whoever desires any Court to give Judgment as to the existence of any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. He relies on Maritime Academy of Nigeria V Association Quantity Surveyors (2008) All FWLR (Pt. 406) 1872 at 1876. He argues that by Section 135(2) of the Evidence Act, it is the duty of the Defendants to prove to the Court how the area in dispute was acquired and made a grazing reserve, the Plaintiff having established by evidence how they became the owners of the area; that the Plaintiff, having established by evidence how he came by the land, the Defendants would fail and must fail having failed to show how the area in dispute was acquired and made a grazing reserve by necessary documentary evidence. He relies on West Africa Cotton Limited V Ibrahim Haruna (2008) All FWLR (Pt. 1942) at 1944. He submits that from the totality of the evidence adduced by the Plaintiff, the Plaintiff discharged the burden placed upon him by law, and is entitled to Judgment.

Counsel submits that the Respondents in their Joint Statement of Defence pleaded in paragraph 3(a) that the land was acquired in 1963 by the Native Authority and made a grazing reserve. In paragraph 3(b), they conceded that the land was acquired from about seven families, which include Baka family and others. Also in paragraph 3(d), they claimed that the Plaintiffs vacated the land immediately after the acquisition by the Native Authority. He submits that by this defence, acquisition has been put up as an issue by the Joint Statement of Defence, and that having made it an issue, the Respondent must prove same, as he who asserts must prove. He contends that, of all the defence witnesses, none of them was able to prove how the land belonging to seven families, which includes the Plaintiff’s land, was acquired, yet the lower Court believed the Respondents’ witnesses.

Counsel also submits that the land in dispute had been sufficiently described by the Appellant, and the description of the land was accepted by the Respondents. The Appellants pleaded that the land is known as Yola Popondi Kulkul (paragraphs 21 & 23A of the 3rd Amended Statement of claim at page 59 of the Record). He submits that that the Respondents, by their defence, agreed that the land was owned by the Baka family. They however claimed that they acquired the land for grazing, but did not state the extent of the land acquired, neither did they give the land a different name. The Defendants never disputed nor put the identity of the land in issue. If however the Court found difficulty in the identity of the land, parties were not asked to address the Court further on it. He relied on University of Calabar V Umoh (2011) All FWLR (Pt 589) 1196 at 1197. In addition, he contends that the Appellant also pleaded that the area of land is about 25 hectares. The Defendants did not give a contrary description of land both in their pleadings and evidence. He therefore submits that the land had been sufficiently described by the Plaintiffs, and the parties knew the land in issue, therefore it was not in contention.

In response to the Appellant’s submissions, learned Counsel for the Respondents submits that it is trite that an appellate court only intervenes to set aside the decision arrived at by a trial court when the trial Court fails to make good use or advantage it had of seeing and hearing the witnesses, particularly in a case where credibility is not involved. He submits that the onus is on the Plaintiff to adduce credible evidence to prove his case before it becomes necessary for the Defendant to call evidence to rebut the Plaintiff’s assertions; and also that the weakness in the Defendants’ case does not prove the Plaintiff’s case. He also submits that evidence at variance with pleadings goes to no issue. He relies on Ngillari V Nicon (1998) 8 NWLR (Pt. 560) 1 at 20, para A; Nwaga V Regd Trustees of Recreation Club (2004) FWLR (Pt. 190) 1360; & Olorunfemi V Asho (1999) 65 LRCN 28.

Counsel submits that in instant case, the Plaintiff failed woefully to discharge this burden placed upon him and the lower Court was abundantly correct in dismissing the claim. He submits that the Plaintiff called the following as witnesses: PW1 who stated that his land is bordering the land in dispute to the west; which is contrary to the boundary description by DW5. PW1 stated that the Plaintiff got his land through Sarkin Baka, now deceased, and this is in support of the testimony of DW4 who said Sarkin Baka was one of the families initially owning the disputed land before the 1963 acquisition. PW1 stated that the first District Head of Tanglang asked Yakubu and London to loan him the farmland so that he can give same to the Fulani cattle rearer, and that the first Fulani man on the land was Alhaji Waziri. He contends that this statement is in total conflict with paragraphs 6, 7 and 8 of the Statement of claim.

Counsel further submits that PW2 testified that he is at the western part of Ahmadu Falke and this is in conflict with the testimony of PW1 who said the Fulani came unto the land in 1998. He contends that the presence of the Fulani cattle rearers certifies the fact that that land is a grazing reserve. PW3 under cross-examination also admitted the long time settlement of the Fulani when he said as a veterinary supervisor he used to go to Kulgul to vaccinate their cattle and to administer medicines on the Fulani cattle, now 44 years ago. Counsel submits that PW4 testified that he hired the said land in 2007 from PW2 and planted on it before the Local Government stopped him. PW5, the deputy secretary of Billiri Local Government Council, testified but did not tender the documents of handing over. PW6`s statement contradicts paragraphs 6, 7 and 8 of the Plaintiff’s pleading, as well as the testimonies of PW1 and PW2. Counsel therefore submits that in reconciling the testimonies of these witnesses, the following salient facts emerge:

(i)    In respect of when and how the Fulani settled on the land in dispute, the testimonies where all contradictory. However, it suggests that it was not in 1998 as claimed by the witnesses; 
(ii)    Virtually all the testimonies contradict the Plaintiff’s Statement of claim; 
(iii)    There was no concrete evidence led and nothing to the contrary from the State or Local Government supporting the non-acquisition of the land as stated in paragraph 20 of the claim.

Counsel submits that the Plaintiff has to succeed on the strength of his case, as by Section 133 Evidence Act, he who alleges must prove. Where, either by commission or omission he fails to discharge this burden, his case must fail. He relies on Momah V Vars Petroleum (2000) 75 LRCN 502 at 509; Aderoumu V Arasie (2000) 79 LRCN 425. Counsel contends that the case of the Plaintiff having failed, the Defendants have no obligation to assist him to succeed. He relies on Elema V Akenzua (2000) 79 LRCN 2048; Eze V Atasie (2000) 79 LRCN 198; Fasikun II V Oluron II (1999) 65 LRCN 114 at 118.

Counsel further submits that the Defendants, in contesting the claim adduced the following evidence: DW1 stated that they met Fulani rearers with no farms on the land; PW2 and PW3 admitted that Fulanis are cattle rearers, DW1, in their meeting with the trespassers, admitted that they would vacate the land. He stated that it was obviously clear from their visit that the land had been a grazing field over a long time without any sign of cultivation. He contends that the testimony of this witness was not controverted. Counsel submits that the testimonies of DW2, DW3 and DW4 also remained uncontroverted and unchallenged and were all supportive of the averments in the Defendants’ pleadings. DW5, the Village Head of Kulgul stated that the disputed land is under his jurisdiction and that since he was young he has known the area as a grazing reserve because he saw Fulani cattle rearers staying on the land. Counsel contends that this testimony controverts the Plaintiff’s claim but confirms the Statement of defence. In respect of the DW6, the chairman of the Herdsmen/Rearers Prevention of Disputes Committee, the witness stated that his committee visited the grazing reserve and indeed in fact and in law did confirm the land to be a grazing reserve. This is in line with the pleadings of the Defendants. For DW7, a veterinary field overseer, he testified that the land was carved as a grazing reserve between 1962 to 1964, he confirmed the creation of the committee, and the Edict of 1996 (Exhibit D1) setting up the investigative committee. Counsel submits that from the evidence adduced by the Defendants, the following facts emerge: 
(i)    That the land is an acquired grazing reserve since 1963; 
(ii)    That the Fulani cattle rearers have been staying on this land since 1963; 
(iii)    That this grazing reserve was acquired from about seven families who have all acquiesced, as it is only the family of the Plaintiff that have lately began to trespass into this land for farming; 
(iv)    That the Committee created by Government is backed and regulated by law since 1996; 
(v)    That the entry of the Fulanis as rearers on this land was since 1963 and not 1998 as alleged by the Plaintiff; and

(vi)    That the Plaintiffs have known the families to be on this land since 1963 as the features on the land clearly suggest that it is a grazing reserve.
Counsel therefore submits that the Plaintiff failed to establish the claim and so it must fail. He submits further that since the Defendants did not enter a counter claim, there was no obligation upon them to establish anything, as it is trite that he who alleges must prove. He relies on Ajero V Ugorji (1999) 71 LRCN 2875 at 2882; & Uchendu & Obasi V Ogboni (1999) 68 LRCN 925 at 933.

In addition, Counsel submits that, assuming but not conceding that the land was not an acquired grazing reserve, the Plaintiffs have constructively acquiesced and it is therefore equitable to so declare it, since they have been unable to explain the continuous stay of the Fulani cattle rearers on the land since 1963, until 1998 when they woke from their malicious slumber. He relies on Ramsden V Dyson L.R. H.L, 129, 140, 141.

In respect of the identity of the land, Counsel submits that the mere mention of the name of a land in dispute without identifying clearly the area of the land to which a claim is related is not enough description to which evidence can be related in support of a party’s claim. He submits that in this case, as the land being claimed was not identified and ascertained, the claim of the claimant will fail and will be dismissed. On the submission that the land was known to both parties, counsel submits that this is misconceived because the Defendants assert that land was acquired from seven families that includes the Appellant’s family. It was therefore incumbent upon the Plaintiff to prove his land’s identity. He contends that the scenario herein is at variance with a situation where two individual litigants are disputing over possession or farm boundaries. He relies on Odiche V Chibogwu (1994) 7 NWLR (Pt. 354) 78; & Bankwa V Ogunshola (1938) 4 WACA 159. Counsel finally submits that the Plaintiff failed to prove his case and the trial Court rightly held as it did; and that the perceived weakness of the Defendants cannot aid him.

Findings:
The law is trite that the burden of proof in a civil action is on the plaintiff who must discharge same through credible evidence and on a balance of probabilities, in order for the court to find in his favour. The burden first rests on the plaintiff, because the assertion of the existence or non-existence of a fact in his claim is usually made by a plaintiff seeking the court to make a determination in his favour. Thus, the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the court would be given if no evidence is produced on either side, regard being had to any presumption that may arise on the pleadings. See: Sections 131 & 132 of the Evidence Act 2011); Osadim V Tawo (2010) 6 NWLR (Pt. 1189) 155 at 179-80; Oladipo V Moba LGA (2010) 5 NWLR (Pt. 1186) 117 at 160; & Elemo V Omolade (1968) NMLR 359. Muhammad, JSC, in Okoye V Nwankwo (2014) LPELR-SC.234/2004, 1 at 42-46, summarized the law in these words:

“Where the burden is a matter of law and pleading, it is described by different names by legal authors. Phipson, for instance, quoting from Lord Denning, calls it “persuasive burden”, “legal burden”, “probate burden”, “ultimate burden”, “the burden of proof on the pleadings” or “the risk of non-persuasion”…. A person who fails to discharge a persuasive burden … will lose on the issue in question.  This burden rests upon a person whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleading and it is settled as a question of law remaining unchanged throughout the trial exactly where the pleading places it. It never shifts and it is always stable. The burden of proof in the second sense may shift constantly more as one scale of evidence or the other preponderates. In this sense, the onus rests on he who will fail if no evidence at all or no more evidence as the case may be, were given on either side. It rests before evidence is gone into upon the party asserting the affirmative of the issue. The burden of introducing evidence is thus, the obligation is on a party to adduce evidence on a particular fact introduced. Therefore, looking at the general principles burden of proof or onus of proof …, the onus of proof is normally fixed by the state of the pleading and is on the plaintiff, where the defendant denies, to establish the allegation in the statement of claim with a view to proving the whole case as put by him.”

Furthermore, in line with the decision in Bassey V Pamol Nigeria Ltd (2009) 6 NWLR (Pt. 1136) 36 at 59, and a host of other authorities, in order for a plaintiff to succeed in a claim for declaration of title to land, the court must be satisfied as to:
a.    the precise nature of the title claimed, that is whether it is the title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise; and
b.    Evidence establishing title, of the nature claimed.

Where the claim is based on traditional evidence, in order to qualify as reliable traditional testimony, a party relying on same must plead the name or names of the founder of the land and those after him, the person the land devolved to and the last successor, without leaving any gaps. See Fayemi V Awe (2009) 15 NWLR (Pt. 1164) 315 at 340. 

Furthermore, the law is certain that litigation is fought on pleadings. They are the pillars upon which a party’s case is founded. Not only do they give the other side notice of the case they are to meet at the trial, they also define the parameters of the case. In other words, parties are bound by their pleadings. Any evidence led on facts not pleaded goes to no issue, while any pleadings in respect of which no evidence is led, are deemed abandoned. In effect, where the pleadings are deficient, no matter how cogent the evidence led, the case will fail. See Anyafulu V Meka (2014) LPELR-SC.247/2005; & Nwokorobia V Nwogu (2009) 10 NWLR (Pt. 1150) 553.  It is therefore useful to review the pleadings with a view to isolating the facts that were in issue before the lower Court. 
The Appellant as Plaintiff, in his 3rd Amended Statement of claim (at pages 55 to 60 of the printed Record of proceedings) pleaded inter alia as follows:

“1. The Plaintiff is the grandson of the late Sarkin Baka, and represents the family of Sarkin Baka and he resides in Billiri within the jurisdiction of the Honourable Court.
6. The Plaintiff pleads that during the lifetime of their grandparent, Sarkin Baka, a Fulani man by name Jagaba came and wanted to stay temporarily being a herdsman, and their grandparent as the District Head of Tanglang gave part of their land for him to stay temporarily.
8. That it was the Yakubu Sarkin Baka who was mandated to show the Fulani man where to stay in the farmland known and called “Yola Popandi Kulkul”.
9. That the stay of the 1st Fulani man did not interfere and did not stop the Plaintiff from farming their land which was cleared and cultivated by their grandparent.
10. That all this while the Fulani man never claimed ownership of the area in dispute until after his death.
11. The land in dispute was never acquired nor sold to the Fulanis.
12. That recently about eight years ago, the Fulani man’s siblings started laying claim to ownership of the land in dispute.
13. That again the 2nd and 3rd Defendants backed by the 1st Defendant set up a committee known as the farmers and herdsmen (prevention and settlement of dispute) committee.
14. That it was later claimed that the land belonging to the Plaintiff is a grazing reserve and that the Plaintiff and their cohorts are encroachers on the land.
15. That the said land has never been a grazing reserve because the coming of the first Fulani man was not too long and how he settled was a well-known history to the Plaintiff, they neither bought, cleared nor inherited the land in question.
20. The Plaintiff insists that their land is not a grazing reserve acquired by either the State Government or the Billiri Local government Area…   
21. The land in dispute is shared by the Plaintiff’s family and London’s family and they have known their common boundary over the years.”
The Defendants, in their defence to the claim and in response to these pleadings by the Plaintiff, stated inter alia thus in their Joint Statement of defence (at pages 29 to 31 of the Record):
“3. Defendants deny paragraphs 5, 6, 7, 8, 9 and 10 of the claim – put the plaintiffs to prove and in lieu further states:
a.    That the land was acquired since 1963 by the native authority and made a grazing reserve.

b.    That the land acquired belonged to about 7 families which includes but not limited to Baka, London, Buba Yako, David Lasari, Ishaku Landigo etc. and the Fulanis settled therein since 1963 and even have their houses.
c.    …
d.    That the plaintiffs vacated the land immediately after the acquisition by the NA.
4. Defendants avers (sic) that the Fulanis has (sic) never and can never claim ownership of the said land. 
7. That the land since 1963 was acquired for grazing – overriding individual interest.
8. That the land was acquired as grazing field for the Fulanis and not that they bought or cleared it.
11. That the plaintiff remains a trespasser infringing on lawful and quiet operations of an acquired grazing land.
13. That the boundary is not in dispute and the land was originally owned by about 7 families – credible evidence shall be led in prove (sic) of this in court.”

From the pleadings of the parties, whereas the Plaintiff claimed ownership of the land in conjunction with other named families, and also that the land was not acquired as a grazing reserve; the Defendants, admitted that the land formerly belonged to the Plaintiff’s family and six other families, yet they firmly asserted that it was acquired by the Native Authority and made into a grazing reserve. In addition, they state that the boundaries of the land, the subject-matter of the suit, were not in dispute. Consequently, by virtue of the law on pleadings, that which is admitted needs no further proof. Therefore, the Defendants, having basically admitted ownership of the land by the Plaintiff and others prior to the alleged acquisition by the Native Authority and its conversion into a grazing reserve, and having also admitted that the boundaries of the land were not in dispute, now bore the onus of proving that the Plaintiff no longer owned the land by reason of its compulsory acquisition by the 1st Defendant, the successor of the Native Authority. What th