Lassanjang v Dangombe (CA/J/257/2013, CA/J/257A/2013) [2016] NGCA 58 (13 April 2016)

JUDGMENT
(DELIVERED BY BIOEBELE ABRAHAM GEORGEWILL, JCA):
This is an appeal against the judgment of the High Court of Gombe State sitting in its appellate jurisdiction in Appeal No: GM/29A/2012: Bistrus Isah Lassanjang V. Heman Dangombe Lapan delivered on 8/4/2013 by M. A. Pindiga J and S. Y. Abubakar J, in which the judgment of  Upper Area Court I, Gombe affirming the judgment of the Area Court Burak was set aside and an order remitting the case to the Upper Area Court I Gombe to “evaluate evidence and give judgment in accordance with the law” was made.
At the trial before the Area Court Burak, the Appellant as Plaintiff had claimed title to the land in dispute situate at Lassanjang on grounds of being the first to clear and cultivate the said land in 1963 when he discovered it as a bush and that none other had ever cultivated the said land. The Respondent’s father, Heman Dangombe Lapan was the Defendant but now deceased and substituted with the present Respondent on record, disputed the claim of the Appellant as Plaintiff on the ground that it was his father one Dangombe that first cleared and cultivated the land and gave it to the Appellant to cultivate being their relation.

At the close of trial and after a visit to the land in dispute, the trial Area Court Burak came to the finding that neither the Appellant as Plaintiff nor the Respondent’s father as Defendant made out a case convincing enough to be declared the owner of the land in dispute and therefore, resorted to administering of Oath on the parties according to their traditional ways of dispute settlement. Ultimately, the Oath taking was done and the trial Area Court Burak granted title to the land in dispute to the Respondent as Defendant, who had taken the oath as administered by the Priest of Shongom, where both parties hail from.  See pages 56 – 79 of the Record of Appeal.

The Appellant was thoroughly dissatisfied with the said judgment of the Area Court Burak granting title to land in dispute to the Respondent and had promptly appealed against the said judgment to the Upper Area Court 1 Gombe, which after hearing the appeal dismissed it and affirmed the judgment of the trial Area Court Burak and thus confirmed the title to the land in dispute to the Respondent.  See pages 79 – 90 of the Record of Appeal.

The Appellant who was still dissatisfied with the concurrent decisions of the Area Court  Burak and the Upper Area Court I Gombe, had in the exercise of his right of appeal, appealed against the judgment of the Upper Area Court I Gombe to the High Court of Gombe State, the Court below praying that Court to set aside the concurrent decisions of the Area Court Burak and Upper Area Court I Gombe and to enter judgment in his favour by granting title to the land in dispute to him as the owner of the land in dispute.  See pages 1 – 18 of the Record of Appeal.  
Upon exchange of their written briefs of arguments, the Court below proceeded to hear the appeal and in its judgment delivered on 8/4/2013, it set aside the judgment of the Upper Area Court I Gombe and remitted the case to the Upper Area Court I Gombe to evaluate the evidence of the parties and to give judgment in accordance with the law.  See pages 91 – 108 of the Record of Appeal.

It is against the said judgment of the High Court of Gombe State that the Appellant still being dissatisfied had further appealed against to this Court in the exercise of his constitutionally guaranteed right of appeal vide a Notice of Appeal with the leave of this Court sought and obtained, on 25/3/2014.  See pages 109 – 113 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court on 27/6/2014. The Appellant’s brief was filed on 24/2/2015. The Respondent filed a joint Respondent/Cross Appellant’s brief on 22/2/2016, while the Appellant filed a joint Appellant/Cross Respondent’s Reply brief on 26/2/2016.

While the appeal was pending the Respondent sought and obtained the leave of this Court to Cross Appeal against the said judgment of the Court below and subsequently filed, pursuant to the said leave, the Notice of Cross Appeal on 12/10/2015 on three grounds of Cross Appeal. On 22/2/2016, this Court granted leave to the parties consolidating both the appeal and cross appeal registered respectively as CA/J/257/2013 and CA/J/257A/2013 to be heard jointly.
At the hearing of the appeal and cross appeal on 7/4/2016, M. A. Galaya Esq., leaned senior counsel to the Appellant/Cross Respondent adopted the Appellant’s  brief and Appellant/Cross Respondent’s reply brief as his argument in support of the appeal and in opposition to the cross appeal and urged the Court to allow the appeal, set aside the judgment of the Court below and to grant title to the land in dispute to the Appellant while dismissing the Cross Appeal as lacking in merit. 
On the other hand, Sati Benjamin Esq., learned counsel to the Respondent/Cross Appellant appearing with I. S. Sikkam Esq., adopted the Respondent/Cross Appellant’s brief as their argument in opposition to the appeal and in support of the Cross Appeal and urged the Court to dismiss the appeal for lacking in merit, while allowing the Cross Appeal and to set aside the judgment of the Court below and to affirm the concurrent judgments of the Upper Court I Gombe and the trial Area Court Burak granting the title to the land in dispute to the Respondent/Cross Appellant.

In the Appellant’s brief, M. A. Galaya Esq., had distilled two issues as arising for determination in the main appeal, namely;
      (1)    Whether the Gombe State High Court was right in law to have granted    reliefs which was neither sought for nor claimed by the parties? (Distilled from ground 3 of the grounds of appeal)
(2)    Whether having regard to the totality of the evidence on record, the Lower Court was not in error when it failed to evaluate the evidence but rather remitted the case to the Upper Area No. 1, Gombe to evaluate the evidence? (Distilled from grounds 1 and 2 of the grounds of Appeal)
In the Respondent/Cross Appellant’s brief, Sati Benjamin Esq., had distilled three issues for determination, out of which only issue one relates to the main appeal, while the other two issues relate to the Cross Appeal. The only issue relating to the main appeal is “Whether the lower Court was right in remitting the case back to the Upper Area Court I Gombe to evaluate the evidence adduced at the trial

court in order to give judgment in view of the fact that the trial Court had judiciously done so and entered judgment in the matter?  (Distilled from Grounds 1, 2 and 3 of the grounds of the main appeal)
I have taken time to consider the submissions of counsel in their respective appellate briefs and I have also taken time to go through the proceedings before the trial Area Court Burak, the Upper Area Court I Gombe and the Court below as in the printed record of appeal.  I have also calmly perused the judgments of all the three Courts below and their findings and conclusions reached therein in the light of the issues as distilled from the grounds of appeal by the parties in this appeal.  
Upon an anxious consideration of all the above, it does appear to me that the first issue as distilled from the grounds of appeal by the learned counsel to the Respondent and the second issue as distilled by learned senior counsel to the Appellant best represent the apt issues for determination in the main appeal and they are consequently hereby adopted and set down as the issues for determination in this appeal as follows: 
(1)    “Whether the lower Court was right in remitting the case to the Upper Area Court I Gombe to evaluate the evidence adduced at the trial court in order to give judgment in view of the fact that the trial Court had judiciously done so and entered judgment in the matter?
 (2)    Whether having regard to the totality of the evidence on record, the Lower Court was not in error when it failed to evaluate the evidence but rather remitted the case to Upper Area No. 1, Gombe to evaluate the evidence?
It is my view that a consideration of these two issues would invariably involve a due consideration and resolution of the first issue as distilled by the Appellant’s counsel, which issue is on all four with the first issue as distilled by the Respondent’s counsel though couched differently. I shall therefore, proceed anon to consider these two issues for determination, commencing with the first issue.
                                           

    ISSUE NO. 1        
         “Whether the lower Court was right in remitting the case to the Upper Area Court I Gombe to evaluate the evidence adduced at the trial court in order to give judgment in view of the fact that the trial Court had judiciously done so and entered judgment in the matter?
Learned senior counsel for the Appellant had submitted that the Gombe State High Court was in great error when it decided to grant to the parties what they did not claim  Counsel relied on the case of Amadi V. Chinda & Ors (2009) 5 SCM 27 @ 39; Nwaodgu V. Atuma & Ors (2013 221 LRCN (pt. 2) 1 @ 26.

Learned counsel to the Respondent had submitted that evidence elicited under Cross Examination constitute evidence in support of a party’s case.  Counsel relied on the case of Chief Agboola Akomolafe V. Guardian Press Ltd (2010) 3 NWLR (Pt. 1181) @ P. 335 @ 342 R. 2
Learned counsel to the Respondent submitted that the Appellant/Respondent did not prove that which he assert by evidence of the witnesses. Counsel relied on Section 131 and 132 of the Evidence Act 2011 and Onyenge V. Ebere (2004) 18 NSCQR (Pt. 11) P. 25 @ 28 R. 3

Learned counsel to the Respondent further submitted that an appeal is an expression of grief by a party who is dissatisfied with the judgment of a Court and any issue that in not appealed against on the case of Lagga V. Sarhuna (2009) 36 NSCQR (Pt. 1) P. 82 2 139.
In whichever way the first issue is looked at, it would be obvious to a discerning mind that the issue whether a Court can grant a relief not claimed as distilled by the Appellant’s counsel clearly begs the real issue, as was aptly distilled by the Respondent’s counsel, as arising from the grounds 1, 2 and 3 of the main appeal. 

The Court below in its judgment appealed against came to the conclusion that the Upper Area Court had failed to evaluate the evidence led by the parties in affirming the judgment of the trial Area Court Burak, which had in its findings held that the parties failed to lead sufficient evidence in proof of their claim and defence and had resorted to traditional oath taking by the parties, which the Court below held not to be a permissible procedure in litigation in the Courts, of  which the Area Court Burak was one and thus ordered a remittance of the case to the Upper Area Court I Gombe to evaluate the evidence and give judgment in accordance with the law. It was the contention of the Appellant’s counsel going by the first issue as raised by his counsel that such an order by the court below amounted to granting a relief not asked for by any of the parties and thus erroneous and perverse and ought to be set aside by this Court.

On the other hand, the Respondent’s counsel aptly and correctly indentified the issue as arising from the order of remittance of the case by the Court below to the Upper Area Court I Gombe for evaluation of evidence and challenging the proprietary of such an order when in his contention there was nowhere in the judgment of the Court below where it pointed out in what way or manner the evaluation carried out by the trial Area Court Burak and affirmed by the Upper Area Court I Gombe was wrong. 

In essence, it seems clear to me that while each of the parties in this appeal attacks the order remitting the case to the Upper Area Court 1, Gombe to evaluate evidence and give judgement in accordance with the law, they each do so for different reasons.   In other words, both parties in this appeal are ad idem that the order of the Court below remitting the case to the Upper Area Court 1 Gombe was wrong and erroneous and ought to be set aside. 

It is true and as well settled in law that a Court, being not in the mould of a father Christmas, has no business or power to granting to a party a relief not asked for and authorities on this point of law are legion. Suffice is to mention the following; See Omokhafe V. Esekhomo (1993) NWLR (309) 58; Ekpeyong V. Nyong (1975) 2 SC 71; Obioma V. Olomu (1978) 3 SC 1; Makanjuola V. Balagun (1989) 3 NWLR (Pt. 108) 192; SCOA Motors Onitsha V. Abumchukwu (1973) 4 SC 51; Ezeigbo V. The Lion of African Insurance Co Ltd (1966 – 67) 10 ENLR 180; The Golday  Co. Ltd V. C.D. Bank Plc (2003) 5 NWLR (Pt. 814) 586.  
However, it must be pointed out at once that the power of a Court in an appeal to order either a retrial or remitting the case to a trial Court for whatever purposes need not be specifically asked for as a relief by any of the parties before it could be made by the appellate court as it is within the discretionary and inherent powers of an appellate court so to order should it come to the conclusion that all the factors necessary in law for such an order to be made exist in an appeal under its consideration.  
It is my view therefore, that in law the making of such an order cannot be faulted merely, and without more, on the basis of the established principle of law that a court cannot grant to a party a relief not asked for. This is why in law a Court can even make consequential orders necessary for the efficacy of its judgment even where it was not specifically asked for by the parties. See Amechi V. INEC (2008) 5 NWLR (Pt. 1080) 227. See also Bello V. AG. Oyo State (1986) 5 NWLR (Pt. 45) 828; Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360; Okupe V. FBIR. (1974) 1 NMLR 422; Liman V. Mohammed (1999) 9 NWLR (Pt. 617) 116.  

However, the instant appeal the order made by the Court below did not amount to a consequential order but merely one by which the Court below, whether rightly or wrongly as would soon be determined in this appeal, remitted the case to the Upper Area Court I Gombe for evaluation (re – evaluation?) of the evidence led by the parties, which in its view had not been properly evaluated. The proper question in the circumstances of this appeal, is therefore as aptly distilled by the Respondent’s counsel as to whether the Court below was right in remitting the case to the Upper Area Court 1, Gombe for evaluation of evidence but certainly not whether such an order as made by the Court below amounted to granting a relief not asked for by the party as distilled by the Appellant’s counsel.
I have taken time to review the judgment of the Court below as touching its order remitting the case to the Upper Area Court I Gombe for evaluation of evidence and to give judgment in accordance with the law. For a better appreciation of this issue, within the context of this appeal, I deem it pertinent to reproduce that part of the judgment of the Court below giving the reason for making the order of remittance of the case  to the Upper Area Court I Gombe “for evaluation of evidence and to give judgment in accordance with the law.”  This was how the Court below puts it in its judgment, thus: 
                      “We are of the view that the trial Upper Area Court would have resorted to and relied on the evidence adduced before the trial Area Court and make its finding then give judgment on the merit as to he who asserts must prove.  The trial Court cannot suo motu resort to the traditional oath taking there being evidence adduced by both parties enough to warrant a good judgment.  The issue of consent raised by the Respondent in this case cannot stand the test of time. It is our further believe (sic) that the justice of any case in a court of law can only be served by evaluating the evidence and not by reliance on traditional oath. The case of Achiakpa V. Nduka (2001) 14 NWLR (Pt. 734) 622 @ P. 678 – 680 is relevant and relied upon. We hold that oath taking a inconsistent which (sic) judicial proof.  See the case of Rapheal Onwuanumpe V. Ruben Onuwaumukpe (1993) 8 NWLR (Pt. 310) 186.  That oath taking as a means of judicial proof is only valid under Islamic Law, but does not even apply to a dispute which a non Muslim is a party.  See the case of Sarhuna V. Lagga (2002) 3 NWLR (Pt. 754)322 @ p. 343.............We therefore, set aside the decision of the Upper Area Court I Gombe. We order that the appeal is allowed. Case is referred back to Upper Area Court I Gombe to evaluate evidence and give judgment in accordance with the law” 

See page 107 of the Record. 
My Lords, the duty of evaluating, assessing and ascribing probative value to evidence as led by parties is that which primarily belongs to the trial Court and unless and until it is shown that the result of this vital primary duty of the trial Court is erroneous or perverse or not flowing from the established fact, it is not the business or duty of an appellate court to interfere with this duty merely for the fun of it.  See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1. See also Owhor V. Christopher (2010) FWLR (pt. 511) 962; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1240. 
It appears rather curious to me that the Court below which sat in its appellate jurisdiction and failed to carefully consider the evaluation as carried out by the trial Area Court Burak to see whether or not it properly did so could simply order that the Upper Area Court I Gombe, which itself was not the trial Court but similarly exercised an appellate jurisdiction, should be the Court to carry out the “evaluation” (re – evaluation ?) of the evidence led not before it but before the trial Area Court Burak.

In my view, had the Court below exercised some patience to consider the record of appeal as it relates to the proceedings and judgment of trial Area Court Burak it would have readily seen that the trial Area Court Burak did  carried out an evaluation of the evidence led by the parties and came to the conclusion, whether rightly or wrongly would be determined in the course of this judgment, that both parties failed to substantiate their respective claim and defence of their ownership of the land in dispute and thus had resorted to the traditional method of oath taking, which procedure as was done by the trial Area Court Burak, whether rightly or wrongly would also be determined in the course of this judgment.

In the above scenario therefore, it is very glaring and no wonder then that both the Appellant and Respondent are ad idem at least for once  on this issue that the Court below was wrong to have remitted the case to the Upper Area Court I Gombe for evaluation of evidence, though they do so for different reasons. While to the Appellant that order of remittal is wrong because it amounted to granting a relief not asked for by any of the party and thus depriving the Court below of the power to do so, to the Respondent the order of remittal for evaluation of evidence was wrong in the light of the sound evaluation of the evidence and proper findings already made thereon by the trial Area Court Burak.   

In my finding, in whatever way it is looked at the Court below was wrong and erred gravely in law by its order remitting the case to the Upper Area Court I Gombe for “evaluation” of the evidence led by the parties and this is so for the following reasons.  The Upper Area Court I Gombe was not the trial Court charged with the primary duty of evaluating the evidence led by the parties, being only an appellate Court in the circumstances of this appeal. Again, the Upper Area Court I Gombe exercising its appellate jurisdiction could at best “re-evaluate” the evidence should it find that the trial Area Court Burak had not properly and adequately done so. Furthermore, the Court below exercising its appellate jurisdiction was as good in the same position as the Upper Area Court I Gombe to re-evaluate the evidence in the printed record should it come to the conclusion, as it did, that there was no proper evaluation of the evidence by the trial Area Court Burak coupled with the failure of the Upper Area Court I Gombe to carry out a re-evaluation of the evidence in the printed record. 
However, a calm study of the record of appeal would readily reveal that the trial Area Court Burak did carried out a critical review and evaluation of the entirety of the evidence as led before it and came to the finding, whether rightly or wrongly as would soon be determined in the course of this judgment, that both parties failed to lead convincing evidence in proof of their claims and defence. In law therefore, it is only and only if there is a finding by the court below, being an appellate court in the circumstances of this case, that the conclusion reached by the trial Area Court Burak was wrong or perverse or not flowing from the established evidence before it that the duty of the appellate court to re- evaluate the evidence would arise. See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247.  See also Ndayoko V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ 198.

It is now well settled law in appellate litigation that an appellate Court is not so much concerned with whether the reasons given by a trial Court for its conclusion or finding was wrong or correct and thus once the conclusion or findings was right or correct, the appellate Court would not interfere even if the reasons given turn out to be wrong.  See Ndayoko & Ors V. Alhaji Dantoro & Ors (supra) @ p. 198. 
It follows therefore, that without first finding whether or not the conclusion or findings of the trial Area Court Burak that both parties failed to lead sufficient and convincing evidence in proof of their claims to title or defence was wrong or correct, there was no duty to re- evaluate the evidence in the printed record either by the Upper Area Court I Gombe or the Court below as was erroneously ordered by the Court below.
In the light of the above findings and subject to my further discourse on the issue of whether the finding of the trial Area Court that both parties failed to substantiate the claim to title to the land in dispute or defence was right or wrong, I hold that the Court below was in grave error to order a remittance of the case to the Upper Area Court I Gombe for evaluation of evidence, in a case in which the Upper Area Court was also in the same position as the Court below, both exercising appellate jurisdiction and the Court below could as well, if it finds it so deserving carried out the re-evaluation of the evidence in the printed record and make appropriate findings than remitting it to the Upper Area Court 1, Gombe to so do. 
In the circumstances therefore, the first issue for determination is hereby resolved in the negative in favour of the Appellant and I hold that the Court below was wrong to have remitted the case to the Upper Area Court I Gombe for evaluation of evidence without first finding in what way or ways the findings of the trial Area Court Burak and the Upper Area Court I Gombe were perverse or erroneous and not flowing from the established evidence as led by the parties before the trial Area Cour Burak as in the printed record of appeal.
                                              ISSUE NO 2   

                       “Whether having regard to the totality of the evidence on record, the Lower Court was not in error when it failed to evaluate the evidence but rather remitted the case to Upper Area No. 1, Gombe to evaluate the evidence?” 
Learned senior counsel to the Appellant submitted that evaluation of evidence is reserved to the trial Court, but where the trial Court fails to so do the appellate Court has the duty to intervene by evaluating the evidence so as to make its own findings and draw its own conclusion.  Counsel relied on the case of Awyanwu & Ors V. Uzowuaka & Ors (2009) 10 SCM, 1 @ Pp. 13 – 14.
Learned senior counsel to the Appellant further submitted that the question is whether any person is owner of anything in which he is shown to be in possession, as in the instant case, the person who asserts.  Counsel relied on the case of Stephen Idugbore & Sons Ltd V. Anenih (2003) FWLR (Pt. 149) 1418 @ 1142.
Learned senior counsel to the Appellant submitted that once it is the case that a person is a customary tenant and rightfully in possession, then there is a presumption of ownership in his favour which can only be rebutted by due proof of a tenancy and where the customary tenancy is not proved, the pleading that the party is a customary tenant amounts to an admission of possession in that party upon which the Court is bound to act.  Counsel relied on Udeze V. Chidebe (1990) 1 NWLR (Pt. 125) 141 @ Pp. 160 – 161.
Learned senior counsel to the appellant submitted that even if the Respondent had any interest in the disputed land he has slept over his interest and cannot therefore be permitted to wake up and reclaim same.  Counsel relied on the case of Olaleye V. Trustees of ECWA (2011) All FWLR (Pt. 565) 297 @ Pp. 325 – 326.
In his reply learned counsel to the Respondent submitted that long possession without a successful plea of latches and acquiescence do not and cannot ripen to ownership.  Counsel relied on Oseni V. Bajula (2010) 178 LRCN P. 26 @ 32 – 33; Cyracus Nnadozie V. Nze Ogbunelu Mbagwu (2008) 3 NWLR (Pt. 1074) @ 363 P. 368.
Learned counsel to the Respondent submitted that the contention of the Appellant that this Court solely relied on the traditional Oath to declare title to the Respondent herein is unfounded and must fail.  Counsel relied on Nwoke V. Okere (1994) 5 NWLR (pt. 343) P. 159 @ 172.
Whether the lower Court was right in relying on the authority of Achiakpa V. Nduka when the appellate Upper Area Court and the trial Court did not solely rely on oath to declare title (distilled from grounds one and three of the Cross Appeal).
Learned senior counsel to the Respondent submitted that the authorities cited and relied upon by the Lower Court contemplate a scenario where the Court whose decision is being appealed against solely relied on Oath to base its decision.  Counsel reproduced the relevant part of the decision in the case of Achiakpa V. Nduka (2001) 14 NWLR (Pt. 734) P. 632 @ Pp. 648 – 650 R. 3

Learned counsel to the Respondent submitted that the burden of the proof in civil suit and particularly in land matters is on the person who will fail if no evidence were given on either side and particularly in cases such as the one at hand, the Plaintiff is required to succeed by proof through credible evidence on the strength of his case and not weakness of the Defendant’s case.  Counsel relied on Akinduro V. Alaya (2007) 30 NSCQR P. 601 @ 618. 
My Lords, in considering the first issue for determination I had already held that the Court below was in grave error in remitting the case to the Upper Area Court I Gombe for evaluation of the evidence without first deciding whether the trial Area Court Burak did or did not carry out any proper evaluation of the evidence and arrived at findings and conclusions, whether wrong or correct and that it is only when such a finding is made by the Court below that the issue of the re-evaluation of the evidence as in the printed record could arise, if need be. 
I have taken a calm look at the record of the proceedings before the trial Area Court Burak on the evidence as led by the parties.  I have also reviewed the judgment of the trial Area Court Burak and the findings made therein, which were affirmed by the Upper Area Court I Gombe in its judgment but which were set aside by the Court below.
Now to properly appreciate the findings of the trial Area Court Burak in the light of the evidence led before it and to decide whether the evaluation of the evidence by the trial Area Court Burak was proper or not and also whether the findings that both parties failed on the evidence led by them to substantiate their claims to the title to the land in dispute and defence thereto was correct or wrong, the starting point is the evidence as led before the trial Area Court Burak as in the printed record.
By a claim in Suit No: CV/52/2011, the Appellant as Plaintiff had institute an action against the Respondent’s father as Defendant claiming title to a piece of land situate at Lassanjang on grounds of being the first to clear and cultivate the said land. The Respondent’s father denied the claim and asserted that the land in dispute was first cultivated by his father one Dangombe, who subsequently gave it to the Appellant to cultivate being his relative.  
At the trial, in proof of his claim, the Appellant as Plaintiff told the trial  Area Court Burak that he was the first to clear the land with his hand in 1963 and had cultivated the land since 1973 without any challenge or hindrance from anybody until the Respondent’s father as Defendant came to interfere with his possession of the land claiming that the land was given to the Appellant by the Respondent’s father. The Appellant called six witness in proof of his claim of title for the land in dispute.  PW1 was one Suleiman Iliya, 75 years old, who testified that it was the Respondent’s father one Dangombe that gave him part of the land on which he farms as a gift and also gave the land in dispute to the Appellant, who was not the first to cultivate the land in dispute which belongs to the Respondent’s father.  PW2 was one Hamza Madugu, 70 years old, who testified that he does not know who owns the land in dispute but the Appellant came subsequently to clear the bush and cultivate it. He admitted that he does not know who was cultivating the land in dispute before the Appellant came on it to cultivate it.

PW3 was one Adamu Ishaku, 40 years old, who testified that it was his father who told him that the land in dispute belongs to the Appellant whom he saw cultivating it. He admitted that the Respondent’ father once had a case with his father over the land in dispute but that at that time the Appellant had not come to cultivate the land in dispute and that he once heard that the land in dispute belonged to the Respondent’s father. When PW3 was specifically questioned by the Area Court Burak, the following question and answer ensued: 
Question:     Have you any knowledge that the land in dispute belongs to Dangombe.
Answer:    Yes I once heard that the land in dispute belongs to Dangombe.
PW4 was one Haruna Captin, 40 years old, who testified that he shares boundary with the Appellant on the land in dispute but does not knows how the Appellant came about the land in dispute.  He admitted that he does not know if the land in dispute had been cultivated before the Appellant came to cultivate it.  PW5 was one Ishaku Duna, 38 years old, who testified that his family shares boundary with the Appellant on the land in dispute and that he does not know the Respondent as the owner of the land in dispute but he also does not know who first cultivated the land in dispute and does not also know if it was Respondent’s father that gave the land in dispute to the Appellant to cultivate it.  PW6 was one Dahiru Captin, 37 years old, who testified that he knows the Appellant as the person cultivating the land in dispute since he was a child but admitted that he does not know who was the first to cultivate the land in dispute. On being questioned by the Court, the following question and answer ensued.
Question:    How did Bitrus came about the land in dispute.
Answer:    I do not know whether he inherited it or he was the one that first         cleared the land.
The Appellant then closed his case when his next witness PW7 was not forth coming.  See pages 56 – 63 of the Record of Appeal.
On his part, the Defendant, now deceased (father of the present Respondent) told the Court that his father was amo