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 amongst the first settlers in Lassanjang and gave the land in dispute to the Appellant to cultivate it. DW1 was one Rufi Waziri, 70 years old, who testified that the land in dispute was formerly a bush belonging to Respondent’s father and that he owns a personal farmland in the area where the land in dispute is situate. He maintained that Respondent’s father first settled at Lassanjang before the Appellant’s father but admitted that it is the Appellant that was presently cultivating the land in dispute.  DW2 was one Ahmadu Kakdak, 95 years old, who testified that the land in dispute belongs to the Respondent’s father and they share a common boundary.  DW3 was one Dariye Captin, 70 years old, who testified that the land in dispute belongs to Respondent’s father, who first cultivated the land and later one Ngalaku cultivated the land before the Appellant later came to cultivate it. She maintained that her husband has a farmland in that area and shares boundary with the land in dispute and she maintained that the Appellant had no land in that area, when she was confronted by the Appellant thus:

Question:    Did you know my boundary with Dangombe.
Answer:    You don’t have a land in that area talk more of sharing boundary with Dangombe.
DW4 was one Boaz Kamla, 48 years old, who testified that his father told him right from his childhood that the land in dispute and the area occupied by his father all belonged to the Respondent’s father, who gave part of the land to his father to cultivate.   DW5 was one Mutu  Maishanu, who testified that the land in dispute belongs to the Respondent’s father right from their childhood when one Mama Walkiya, the wife of Dangombe used to send them to take food to him on the land in dispute about 40 years ago.  He maintained that the Appellant has no farmland in that area when he was confronted by the Appellant thus:
Question:    Are you aware of my farmland in that area.
Answer:    You don’t have any farmland in that area not even your father.
DW6 was one Laukwari  Dangombe, 71 years old, who testified that the land in dispute belongs to the Respondent’s father, one Dangombe being one of the first settlers in Lanssajang with one Duna and that his father had earlier sued the Appellant over the land in dispute and title was declared in his father’s favour.  He admitted that he does not know how the Appellant came into the land in dispute to cultivate it but maintained that neither the Appellant nor his father had any land in that area of the land in dispute. DW7 was one Samuel Dangombe, 37 years old, who testified that his father gave him a part of the land in dispute to farm on and that the land in dispute farmed by the Appellant belongs to his father but he does not know how long the Appellant has been on the land in dispute. He maintained that the land in dispute was given to the Appellant by his father as he was told by his mother and older brother.  See pages 63 – 69 of the record of Appeal.
It was on the above state of evidence as led by the parties that the trial Area Court Burak,  after a visit to the locus in quo in the presence of the parties and their witnesses, came to the findings inter alia thus:

 Court Observation

                      “Having heard both parties and their witnesses the Court made the following observations.  There is an element of conspiracy in the Defendant’s witnesses’ testimony claiming that the farmland belongs to Dangombe, reason being that all the witnesses are related.  Six of the Plaintiff’s witnesses testimony is not too relevant that could warrant the Court to declare title to the Plaintiff, reason being that they are too young to establish the claim of the Plaintiff in relation to the date the Plaintiff claims to have cleared the land.  Defendant’s witness did not convince this Court that it was Dangombe that gave the disputed farmland to the Plaintiff.  Certainly, the Plaintiff has a long possession of the farmland in dispute but the Court doubts the ownership of the Plaintiff, reason being that why did the Plaintiff have to go to Dangombe to seek land to build a church and that land is close to the land in dispute.  Court doubts the ownership of the whole land as belonging to the Plaintiff.  As last this Court having regards to the Plaintiff’s claims and the Defendant’s defence and testimonies of their witnesses is not convincing enough to declare title to either of them. Based on Court findings, the Court has left with no option than to administer Oath to the parties according to traditional ways of settlement”  
See pages 71 – 75 of the record of Appeal.

It was on the strength of the above findings and with the eventual consent of the parties, though with initial rejection of traditional oath taking by the Appellant on ground of his Christian religious belief, that the trial Area Court Burak summoned the Priest of Shongom tradition (Irimiya Maigari) to administer the oaths.  Upon the Defendant taking of the oath on 12/6/2011 at pages 77 – 78 of the record of appeal, the trial Area Court Burak proceeded to deliver its final judgment on 18/7/2011, holding thus;
                      “We rely on the investigations and findings of this Honourable Court with regard to the case. We also rely on the traditional oath taken by the Defendant Eman Dangombe in respect of this farmland, the oath impliedly strengthen the Defendant and his witnesses testimonies before this Court that the farmland in issue belongs to the Defendant and that he inherited it from his father Dangombe.  On this ground We declare title to the disputed farmland to the Defendant Eman Dangombe today the 18/7/2011” (underlining is mine for emphasis)  
See page 79 of the record.

It was on the strength of the above findings and final judgment of the trial Area Court Burak, that on appeal to the Upper Area Court I Gombe by the Appellant, the Upper Area Court 1, Gombe held inter alia thus: 
                     “Based on the lower Court findings and the steps taken to ensure that the lower Court dispenses justice, the lower Court did a wonderful work, the Court gave both the Plaintiff and the Defendant a chance to establish the claim. Having heard the legal arguments, the appeal court agrees with the Respondent’s counsel that the farmland in dispute belongs to the Respondent in this case (Eman Dangombe).  The grounds of appeal before this Court were not satisfactory enough to warrant this Court to set aside the decision of the lower Court. On this premises we discountenance with the Appellant’s grounds of appeal. The Lower Court listens to witnesses before embarking on visit to locus in quo.  For this reason we will not dismiss a judgment that does not go against the administration of justice. On the issue of possession (30 years) that the Appellant spent farming the disputed land, this is not an issue before the Court, long possession of a farmland that does not belong to the Appellant does not amount to ownership. For this reason we dismiss the Appellant’s appeal and declare title to the land in dispute to the Respondent and affirm the decision of the lower Court relying on Section 59(1)(a) of the Area Court Edict”  

See pages 89 – 90 of the record of Appeal.   
Upon further appeal by the Appellant to the High Court of Gombe State sitting in its appellate jurisdiction, the Court below held inter alia thus:

                     “This Court has perused all the submissions of both learned counsel and came up with two issues for determination; 1: Was there enough evidence before the trial Court to make its finding without resorting to traditional oath taking? 2: Was the trial Area Court abdicating from its responsibility by suo motu arguing (sic) the parties to take a traditional oath taking? 3: Was consent of party to an act contrary to the established rule of law admissible in law? 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 is 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. We discountenance the submissions of the Respondent in this appeal” 

 See page 107 of the Record. 
In considering the second issue for determination, the salient question is whether this is a proper and deserving case to invoke the provisions of Section 15 of the Court of Appeal Act 2004 to re-evaluate the evidence on the printed record in order to make appropriate findings and draw necessary inferences and reach conclusions as would the trial Area Court Burak should it be found that it had failed in its primary duty to carry out proper and adequate evaluation of the evidence led before it and reaching proper conclusions and finding thereon as the trial Court?
Having calmly considered the reasoning and finding of the Upper Area Court I Gombe and the reasoning and findings of the Court below, I am of the view that the trial Area Court Burak, though it carried out an evaluation of the evidence as led before it came regrettably to very perverse findings of facts and drew inferences and reached conclusions that are clearly contrary to the established facts on the strength of the evidence led by the parties before it as in the printed record.

The law is well settled that while an appellate court has no business interfering with the correct findings and conclusions of a trial Court, even if the reasons given turn out to be wrong, an appellate Court would readily interfere with the findings and conclusions of a trial Court which are perverse and thus not supported by the established evidence before the trial Court, particularly in cases in which by the perverse findings and conclusions reached, a miscarriage of justice has been occasioned to the other party.

On the strength of the evidence led before the trial Area Court Burak, particularly the evidence of PW1, PW2, PW3, PW4, PW5 and PW6, it was very clear that the Appellant as Plaintiff who had asserted positively that the land in dispute was first cleared by him in 1963 (a date on which he gave conflicting evidence when he was questioned by the trial Area Court Burak as he changed it to 1973), the Appellant failed even to make out the slightest prima facie case of his claim to the title to the land in dispute and thus obviating the need for the Respondent to even bother to disprove anything or having anything to confront.   

Now, PW1 called by the Appellant was emphatic that the land in dispute does not belong to the Appellant but belongs to the Respondent’s father.  The trial Area Court found, and quite rightly too in my view that PW2 to PW6 led no credible evidence in support of the claims of the Appellant to the title to the land in dispute.  The trial Area Court Burak having come to such a crucial finding against the Appellant, what more was expected of the Respondent to prove or rebut in the hopeless case of the Appellant?  None I can fathom!
This is where, in my humble view, the trial Area Court Burak veered off tangent from the path of its correct reasoning  and fell into the grave error of holding, without any factual basis,  that the consistent, credible and cogent evidence of the Respondent and his witnesses D1 – DW7,  proving clearly that the title to the land in dispute – though there was no counter claim to that effect - unquestionably vest in the Respondent by inheritance through his father who first cleared the land in dispute and with whose leave and permission the Appellant was let into possession to cultivate the land in dispute was a product of conspiracy  between the Respondent and his witnesses who are his relations.

In the circumstances, in which on the evidence led the Appellant had failed to prove his claim to title to the land in dispute at least even on a prima facie basis there was in my finding indeed no duty on the Respondent to prove or rebut anything, yet the Respondent proceeded to marshal out cogent, consistent and credible evidence to prove his title to the land in dispute, evidence which the trial Area Court Burak, without any verifiable reason dubbed a conspiracy, a finding not even borne out by the record of Appeal.
It is therefore, obvious in my finding, that the Upper Area Court I Gombe in affirming such a perverse finding of the trial Area Court Burak also fell into a grave error when it failed to properly re-evaluate the evidence as in the printed record before it and make proper, appropriate and correct findings and render justice to the parties.  

My lords, as if the blunder by the Upper Area Court I Gombe was not bad enough, the Court below which had the ample opportunity in the appeal before it to re-evaluate the evidence before the trial Area Court Burak as in the printed record, behaved like the Biblical Pontius Pilate in the greatest trial the world had ever seen and read of, the trial of Jesus Christ, and had washed its hands off this sacrosanct duty and simply but obviously erroneously passed the back to the Upper Area Court I Gombe to carry out the re - evaluation of the evidence, a duty which the Court below ought to have carried out in the due discharge of its duties as an appellate court which had come to the finding that the trial Area Court Burak as well as the appellate Upper Area Court 1 Gombe court had not properly evaluated the evidence led and had thus not arrived at correct findings to render justice according to law to the parties. 

Having therefore, considered the totality of the evidence as in the printed record and also having reviewed  the findings of the trial Area Court Burak, which runs contrary to the established facts on the credible evidence led by the Respondent and the lack of prima facie case as presented by the Appellant, it is my view and I so hold that both the Upper Area Court I Gombe and the Court below abdicated their duties as appellate courts in failing to re-evaluate the evidence in the printed record with a view to making appropriate findings of facts as justified by law, and reaching proper conclusion in the interest of justice to resolve the dispute between the parties, which the trial Area Court Burak had failed to do for the parties according to law.

The Law is and has always been that it is he who alleges the affirmative, as in the instant appeal the Appellant who as Plaintiff alleged positively that the land in dispute belonged to him by virtue of first clearance of same by him, that carries the initial burden of proving that which he positively asserts and therefore, it is not for the Respondent who denied the claim of the Appellant to carry the initial burden of proving that the Appellant was not the owner of the land in dispute.  In law negative assertion is generally taken as being incapable of proof.  This has been the position of the law from antiquity and as abound in several jurisdictions.  See Elemo V. Omolade & Ors (1986) NMLR 359.  See also Afano V. Amu (1974) 10 SC 237; Fashunu V. Adekoya (1974) 6 SC 83; Onyenge V. Ebere 18 NSCQR (Pt. 11) 289; Vulcan Gases Ltd V. Gesellsehalf Fur Ltd (2001) 9 NWLR (Pt. 719) 610.

In my finding therefore, the onus of at least introducing evidence capable of making out a prima facie case of his title to the land in dispute was squarely on the Appellant to do so by leading credible and cogent evidence, but which evidence the trial Area Court Burak found, and quite rightly too in my view,  was unconvincing and thus until such a prima facie evidence is led by the Appellant the burden will not and indeed did not shift unto the Respondent to lead any evidence in rebuttal to meet the case if any had been  made out at least on prima facie basis by the Appellant.  This is the law.  See Jolayemi V. Alaoye (2004) All FWLR (Pt. 217) 584.

The entirety of the circumstances of this appeal having been duly considered together and in the light of the invitation on us to invoke the provisions of section 15 of the Court of Appeal Act 2004 by the Appellant, I have asked myself if this is a proper and deserving case to warrant the intervention of this Court to invoke the provision of Section 15 of the Court of Appeal Act 2004, in the light of the failure of both the Upper Area Court I Gombe and the High Court of Gombe State to so do, bearing in mind that an appeal, indeed every appeal, is by way of a re-hearing?  See Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 @ Pp. 612 – 613, where the Supreme Court, speaking through the cerebral Niki Tobi JSC, had emphatically pronounced thus:  
                      “By virtue of Section 15 of the Court of Appeal Act, th e Court of Appeal has all the powers of the trial Court, ie the power the High Court has in the matter before it.  Thus the Court of Appeal law, can in order to settle completely and finally the matter in controversy between the parties to an appeal and in order to avoid multiplicity of legal proceedings concerning any of those matters, grant all such remedies as any of the parties may appear to be entitled to such a remedy only after a claim has been plainly made out, though not formally claimed and dealt with according to the relevant principles governing such a claim if it has been formally made”

Now, keeping the above emphatic and succinct statement of the law in mind, to properly focus the second issue and to finally resolve it one way or the other and deciding whether to invoke the provisions of Section 15 of the Court of Appeal Act 2004 or not, I deem it pertinent and appropriate at this stage in this judgment to reproduce for the sake of emphasis and to aid proper analysis the provision of Section 15 of the Court of Appeal Act 2004 as follows:
                      “The Court of Appeal may from time to time make any order necessary for determining the real question on controversy in the appeal.......... and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part .......”
Having resolved the first issue for determination in the negative and held firmly that the Court below was wrong to have refused to re-evaluate the evidence on the printed record and rather erroneously remitting the case to the Upper Area Court to “evaluate” (re-evaluate?) the evidence on the printed record, I hold that this is a proper case, as the dictates of the course and cause of justice so demand, in which this Court ought readily to interfere to re-evaluate the entirety of the evidence as in the printed record, which substance had been reproduced earlier in this judgment,  to make proper findings of facts and reach appropriate conclusions with a view to resolving of the most crucial question in this case namely; who as between the Appellant and the Respondent is entitled to the title to the land in dispute, once and for all and to avoid any further undue delay in the final resolution of this case, which was heard and decided though erroneously on traditional oath taking by the trial Area Court Burak way back on 18/7/2011. 
In resolving to invoke the provision of Section 15 of the Court of Appeal Act 2004, I am satisfied by the well settled position of the law that though the Appellate Court would not make it an habit to interfere with the findings of the trial Court unless it is shown to the preserve or erroneous, there are in law various circumstances that would justify an appellate court to intervene to re-evaluate the evidence before the trial Court in reaching a just and proper determination of the appeal before it. 

Now,  while not attempting to marshal out or set down an exhaustive list of all such circumstances that have been held to be proper and appropriate in a long life of decided cases as are replete in the law reports, the following circumstances would suffice for the purposes of this appeal, namely;  (a): where the conclusion of a trial Court or the court below,  as in the instant appeal,  does not flow from the correct and subsisting findings arrived at from the evidence as led by the parties, such a conclusion is clearly  preserve (b): where from the grounds of Appeal and the issues canvassed in the appeal, as in the instant appeal, there appears to be a call on the appellate Court to re-evaluate the evidence led before the trial Court or Court below; (c): where in the circumstances of the case and the issues raised, the credibility of witnesses would not arise and (d): appeals are by their nature, a re-hearing of the case on appeal.  See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 2 P. 19. See also Ndukwe V. The State (2009) All FWLR (Pt. 646) 1447 @ p. 1479.

In a claim for declaration of title to land, as was the claim of the Appellant as Plaintiff before the trial Area Court Burak against the Respondent ‘s father as Defendant, the Plaintiff  had open to him five ways by which his title to the land in dispute can be established.  These five ways, which have crystallized over the years in a long time of decided cases as are replete in the law reports, are as follows:
(1)    By evidence of traditional history of title.
(2)    By production of documents of title.         
(3)     By acts of ownership.
(4)    By acts of possession.
(5)    By acts of possession of adjourning or adjacent land in such a way as would make it probative that the owner of adjourning land is also the owner of the land in dispute.  See Idundun V. Okumagba (1976) 9 – 10 SC 48.  See also Morenikeji V. Adebogun (2003) 8 NWLR (Pt. 825) 612.

However, in doing this the Appellant being the Plaintiff in the instant case must do so by leading credible, cogent and consistent evidence in support of his claim to title to the land in dispute situate at Lassanjang.  The Appellant relied on evidence of traditional history of his being the first person to clear and cultivate the land in dispute. The onus was clearly on the Appellant to substantiate this positive assertion by cogent and credible evidence. It is thus well settled in law that evidence of traditional history of title alone without more if found to be cogent and consistent is sufficient to establish title to land in dispute. See Ojah V. Erianuve (2000) FWLR (Pt. 57) 1063. See also Okorie V. Onyejuwe (2001) FWLR (Pt. 41) 1820; Sanya & Anor V. Sauman & Ors (2012) All FWLR (PT. 618) 917.

I am aware that the original trial was before the Area Court Burak, akin to a grass-root court, in which pleadings are not filed and technicality is also not countenanced and where substance rather than form is the sole determinant factor. Be that as it may, the claim of the Appellant as Plaintiff as put forward by the Appellant and his witnesses, as in the printed record of appeal, was a claim to title to the land in dispute on the ground of evidence of traditional history of title, namely; by first clearance and cultivation of the land in dispute by the Appellant.

In law, the Appellant having so claimed before the trial Area Court Burak, it was incumbent on him to lead credible and cogent evidence in support of the method or way relied upon by him in proof of his 

title to the land in dispute. The Appellant as Plaintiff in a case for declaration of title to land in dispute, is by law obliged to succeed on the strength of his own case as put forward by him in evidence and thus cannot rely merely on the weakness or even the absence of the case of the Respondent as Defendant.   However, this principle of law does not rule out the legitimately perfect right of the Appellant as Plaintiff in an action for declaration of title to land to make use of evidence from the other party, the Respondent as Defendant, which supports his own case.  See Nrumah V. Ebuzoeme (2013) 1 SCNJ 128@ p. 145.

In the instant appeal, not only the printed record shows clearly that the PW2 – PW6 were witnesses who knew little or next to nothing about the traditional history of ownership of the land in dispute by the Appellant, as rightly found by the trial Area Court Burak, there was unchallenged evidence by the PW1, called by the Appellant, that the land in dispute rather belonged to the Respondent’s father and not to the Appellant. The Appellant who had called PW1 as his witness attempted furtively to discredit this witness of his and having failed to successfully discredit him is thus bound by the evidence of his witness for good or for bad.  After all, he of his own volition called him as his witness before the trial Area Court Burak.  Curiously, the trial Area Court Burak while rightly discountenancing the evidence of PW2 – PW6, made neither any reference to nor use of the evidence of PW1 which remained unchallenged and runs completely contrary to the claim of the Appellant. 

On the other hand, the Respondent called DW1 – DW7 whose evidence were cogent, credible and consistent with the Respondent’s ownership of the land in dispute by inheritance through his father Dangombe who was the first to clear and cultivate the land in dispute and out of whose benevolence the Appellant was let into possession of the land in dispute to cultivate it, and which evidence clearly corroborated by the evidence of PW1, called by the Appellant, remained unshaken even in their cross examination. Yet, without any rational basis, the trial Area Court Burak had held, though very erroneously, that the unchallenged evidence of DW1 – DW7 amounted to a conspiracy, reason being that they were related to the Respondent. How about the PW1 called by the Appellant whose evidence was in line with the evidence of the DW1 – DW7? The trial Area Court Burak seems to conveniently forget to ascribe any probative value to the evidence of PW1.

I find such a curious inference, as done by the trial Area Court Burak, completely unwarranted, misplaced and misconceived and which had led the trial Area Court Burak, unwittingly perhaps, into the grave error it fell in its jaundiced and incorrect finding that both the Appellant and Respondent did not make out their claim and defence.  Indeed on the copious cogent, credible and consistent evidence of DW1 – DW7, amply supported by PW1, the Respondent, though no such duty was even incumbent on him on the face of the obvious lack of even a prima facie case of title to the land in dispute by the Appellant, produced sufficient evidence to prove and did proved that the land in dispute was first cultivated by his father, one Dangombe who subsequently gave the land in dispute, a portion of his larger piece of land to the Appellant for farming. The Respondent’s father had also given a portion of his larger land to the PW1 for farming too. All these were clearly confirmed in the evidence of PW1, DW1 – DW7 and I so find them as facts duly established by the Respondent. 

Now, what more was the trial Area Court Burak expecting from the Respondent to satisfy it in proof of his defence as required by law?  None I can fathom! In my finding therefore, the Appellant as Plaintiff failed woefully to prove his claim of title to the land in dispute and the trial Area Court Burak ought ordinarily to have dismissed his claim without resorting, illegally and ultra vires its powers as it were, to the use of traditional Oath taking to strengthen the case of either of the parties who took the oath.  Such an illegal resort was completely unnecessarily and totally uncalled far and gravely unprocedural too. 

I had earlier held that the claim of the Appellant before the trial Area Court Burak, as can be seen in the printed record, hinged solely on his claim to first clearance and cultivation of the land in dispute either in 1963 or 1973 being the dates he gave in his statement to the trial Area Court Burak at pages 56 – 57 of the record of appeal.  In my view therefore, the issue of long possession which was even raised suo motu by the trial Area Court Burak, purportedly as flowing from the evidence of PW1 – PW6 was most unnecessary and misconceived. This is so because the claim of the Appellant to the title to the land in dispute in his own words before the trial Area Court Burak at pages 56 – 57 of the record of appeal was not founded on long possession but on first clearance of the land in dispute and having failed to prove that method, his claim ought to fail.  

Furthermore, with the evidence of PW2 – PW6 rightly held by the trial Area Court Burak to be completely lacking in credibility and relevance coupled with the evidence of PW1,  which was consistent with the defence of the Respondent and the evidence of the Respondent’s witnesses to the effect that the Appellant was on the land in dispute with the leave and benevolence of the Respondent’s father, what more legal issue can be made out or inference can be drawn from the Appellant’s permitted possession? In my finding nothing worthy of any serious effect in law can be made out of the proved Appellant’s permitted possession of the land in dispute with the leave and benevolence of the Respondent’s father. 

It is the law, and I so hold, that no matter how long or the number of years that had elapsed that the Appellant had cultivated the land in dispute, so long as it was with the leave, permission and benevolence of the Respondent’s father as proved by the evidence of PW1, DW1 – DW7, it can never ripen into ownership of the land in dispute nor can it form the basis of a claim in laches and acquiesces.  See Sanya V. Suaman (supra) @ p. 57.  See also Diocese of Aba V. Nkume (2002) 1NWLR (Pt. 748) 726.

In my finding therefore, the Appellant was, as shown clearly on the admitted credible and consistent evidence of the Respondent and his witnesses in the printed record, one without any color of right in the land in dispute, which he was merely permitted to cultivate by the Respondent’s father, who was the first to clear and cultivate the land in dispute.  The Appellant cannot therefore, in law and on the established facts exercise or claim any right of ownership against the Respondent, the very owner of the land in dispute.  See Solomon V. Mogaji (1982) 11 SC 1. See also Ojomo V. Ibrahim (1999) 12 NWLR (Pt 631) 418.

It is for the above reasons that I find the resort to oath taking by the trial Area Court Burak as one not only repulsive and offensive to the law governing its proceedings in the instant case but as also a clearly misguided and misconceived journey into nothingness.  It ought not to have threaded on that part of perfidy at all, as all that it ought to have done having come to the finding, which finding as it relates to the case of the Respondent was perverse but correct as it relates to the Appellant ‘s case that both parties had not led sufficient credible evidence in proof of their title and defence, was simply to dismiss the claim of the Appellant to the title to the land in dispute without any resort or recourse to any traditional oath taking. 

Now,  considering the issue of oath taking,  in  Chief Loveday Ebere & Ors V. John Onyenge & Ors (2000) 1 NWLR (Pt. 643) 63. Ikongbeh JCA, (May God bless His Soul) had opined thus:  
“On the importance of traditional arbitration in general and oath taking in particular in our legal system, it is true that this form of adjudication is not part of our judicial system in the sense that a traditional arbitration panel is not one of the Courts or Tribunals recognized by the Constitution.  It is equally true, however, that before the British brought their system of administration of justice we had our traditional system that worked.  It worked and still works, better for the indigenes because it is faster and cheaper and they understand it, not being bugged down by the unnecessary and avoidable technicalities that beset the English system.  The British noticed immediately the system and, as a deliberate policy, encouraged it to grow. Such encampment did not die with the exist of the British.  Our superior Courts have continued the policy and have accorded traditional arbitration and oath taking judicial recognition.  Once it is established that the parties to any case had earlier voluntarily submitted their dispute to traditional arbitration and had accepted its verdict and agreed to be bound by it, the Courts have always refused to let any of the parties back out of the decision”
See also Oparaji V. Ohanu (1999) 9 NWLR (Pt 618) 290; Okere V. Nwoko (1991) 8 NWLR (Pt. 209) 317.

In Aku V. Aneku (1991) 8 NWLR (Pt. 209) 280 @ p. 292, Ndoma-Egba JCA had defined custom succinctly as;
“The unrecorded tradition and history of the people. The essence of a custom is in its uninterrupted practice, acceptability and habit of compliance by the people”
In the peculiar circumstances and facts of the instant case,  as it relates to the place of Oath taking in the Courts, it will in my view be quite instructive to refer to the dictum of Akanbi JCA (as he then was but later PCA) in CHIGA V. UMARU (1986) 3 NWLR (Pt 29) 460, where he opined thus: 
                     “However, I hasten to add that the principles of Islamic law are not to be applied in the Customary Court of Appeal nor are they applied to the parties to this case who are not Moslems.  But be that as it may, it seems to me that the confusion has arisen with respect to oath in the instant case may not be unconnected with the fact that one of the two judges who heard the case in the Area Court is an “Alhaji” and presumably a Moslem. Whatever it is, it seems to me correct to say that in trials in Area Courts, as in any other Court, contending parties must establish their respective cases by adducing credible evidence at the trial, before the trial Court will come to the decision one way or the other.  Indeed the procedure for the reception of evidence in matters before the Area Court is as stated in order XIV Rules 6 – 10 of the Area Court (Civil Procedure) Rule 1972. Clearly the rules make no provision for the administering of oath in substitution for the evidence of witnesses or evaluation of evidence which the trial Court must necessarily do, before reaching a conclusion in the matter.  Put differently, it is not a requirement of the applicable rules or procedure relating to trial of cases (involving non Moslems in Area Court) that any of the contending parties must take an oath before obtaining judgment in his favor”

See also Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) 290 @ p. 304; Usman Ango V. Adamu Awawa (1998) 1 NWLR (Pt. 532) 1.

In the light of the above position of the law on the place of traditional oath taking in our courts, including the trial Area Court Burak, the salient questions arising in the circumstances of this case on this aspect of this appeal are; whether the trial Area Court Burak relied entirely on the traditional oath taken by the Respondent in arriving at its finding that the land in dispute belonged to him? Was the oath taken by the Respondent a non issue or a mere supplusage? Did the trial Area Court Burak properly evaluate the evidence led by the parties before it and arrived at proper and correct findings before resorting to and making use of the traditional oath as additional corroborating fact?

Having taken time to study the entire proceedings,  findings and judgment of the trial Area Court Burak, and having pondered over same, I have come to the inescapable conclusion and I so hold that the trial Area Court Burak having found that none of the parties had made out their claim or defence, in resorting to traditional oath taking by the parties before arriving at its judgment relied solely on that form or means of traditional settlement of dispute in declaring title to the land in dispute to the Respondent, who it had earlier found did not also make out his defence to the claim to title of the land in dispute by the Appellant. This is not allowed in law and thus the trial Area Court Burak clearly erred in law by so doing. See Chiga V. Umaru (supra) @ p. 460. See also Oparaji V. Ohanu (supra) @ p. 304; Usman Ango V. Adamu Awawa (supra). 

It is in this vein and in the peculiar facts and circumstances of the instant appeal, that I find the use of the words “We also rely on the traditional oath taken by the Defendant” as reflected in the judgment of the trial Area Court Burak as a little amusing as it did not render their decision that the Respondent who had taken the oath was the owner of the land in dispute independent of the oath taken by him to be based on both the evidence led and the oath taken, it having already found that none of the parties had adduced any convincing evidence on which title to the land could be declared in favor of either of the parties.

It is very clear to me and I so hold that the judgment of the trial Area Court Burak in favour of the Respondent as Defendant declaring title to him was solely based on the outcome of the traditional oath taken by the Respondent and was thus not based on any evidence adduced before the trial Area Court Burak, which evidence it had earlier rejected and discountenanced as not convincing enough to prove anything in favor of either of the parties in the case before it. In my view the instant case is neither strictly on the facts as in Chiga V. Umaru (supra) nor on the facts as Ango V. Awawa (supra) but rather more in tune with the decision in Achiakpa V. Nduka (supra), as rightly relied upon by the Court below in its judgment in setting aside the concurrent findings of the trial Area Court Burak and the Upper Area Court 1, Gombe.

There was in my finding an abundance and surfeit of evidence before the trial Area Court Burak on which to resolve the dispute as to the ownership of the land in dispute between the parties without any recourse to traditional oath taking, but which the trial Area Court Burak failed to properly evaluate and arrive at proper findings in its judgment.  Regrettably, on appeal, the Upper Area Court 1 Gombe also relied on the flawed evaluation of the evidence and sole reliance on traditional oath taking by the trial Area Court Burak to affirm the decision of the trial Area Court Burak and also fell into and thus ended up perpetuating the same errors of the trial Area Court Burak.

The ball was then shifted unto the court of the Court below, the High Court of Gombe State, which like Pontious Pilate in the great trial of Jesus Christ in abdication of its sacred duty of rendering justice to the parties before it, washed off its hand and decided, though gravely erroneously, to remit the case to the Upper Area Court 1, Gombe to evaluate the evidence in the printed record and to give judgment, which the Court below had denied the parties, to the parties in accordance with the law. What a travesty of justice on the part of the Court below!

It is by reason of the forgoing that I am of the firm view and I so hold that this is a proper case to invoke the provision of Section 15 of the Court of Appeal Act 2004 to re-evaluate the entirety of the evidence  led by the parties as in the printed record and having already done so earlier in this judgment as urged upon this Court by the Appellant, I find that the Appellant on the wishy - washy evidence put forward by him and his witnesses PW2  – PW6 failed woefully to prove his claim of title to the land in dispute against the Respondent, who on the contrary had by the consistent, cogent and credible evidence of DW1 – DW7 proved a far more better title to the land in dispute. 

Consequently, the Appellant as Plaintiff having failed to prove his claim of title to the land in dispute ought to have had his claim dismissed in its entirety by the trial Area Court Burak and I hereby so dismiss the claims of the Appellant as Plaintiff before the trial Area Court Burak for lacking in merit. The trial Area Court Burak was thus clearly in error not to have dismissed the claim of the Appellant to the title to the land in dispute at that stage on the evidence led by the parties and rather resorting to an illegal mode of proof of title to a land in dispute by traditional oath taking in a court of law, which is not a traditional arbitration panel.

In the result, and in the light of all the findings above, the appeal against the judgment of the Court below partly succeeds and it is hereby allowed in part.   The judgment of the High Court of Gombe State delivered on 8/4/2013 in Appeal No: GM/29A/2012: Bitrus Isah Lanssanjang V. Heman Dangombe Lapan is hereby set aside. In its stead the claim of the Appellant as Plaintiff in Suit No: CV/52/2011: Bitrus Isa Lanssanjang V. Heman Dangombe Lapan is hereby dismissed for lacking in merit.  

I shall make no order as to cost. 

JUMMAI HANNATU SANKEY, J.C.A.

I have read before now the Judgments in these two Consolidated Appeals just delivered by my learned brother, Georgewill, J.C.A., with which I respectfully agree.
In the aforesaid Judgments, his lordship has meticulously and comprehensively dealt with all the relevant issues submitted for determination of the Appeals. I will add a few comments in reinforcement of this agreement.

Section 15 of the Court of Appeal Act, 2004 provides thus:
“15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final Judgement in the appeal, and may make an interim order or grant an injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
This provision vests in the Court of Appeal, a general power: “to make any order necessary for determining the real question in controversy in the Appeal.” By virtue of this provision, this Court has power to make any order to ensure the determination on the merits of the real question in controversy between the parties. It undoubtedly gives the Court full jurisdiction over the whole proceedings of the lower Court as if the proceedings had been instituted in this Court as a Court of first instance; and so this Court may re-hear the case in whole or in part, or may remit it to the Court below for the purpose of such re-hearing. These general powers vested in the Court of Appeal were designed to enable the Court clear whatever technical mistakes or obstacles which may be in the way of a fair determination of the Appeal on its merit or of determining the real question in controversy in the Appeal. See Adams V Umar (2008) LPELR-3591(CA).

However, one incontestable limiting factor to the power of this Court to assume full jurisdiction over the whole proceedings is that such first instance jurisdiction exercised by the Court of Appeal pursuant to Section 15 of the Act does not include what the trial Court could not have done. See Obi V INEC (2007) 11 NWLR (Pt. 1046) 565; Comptoir Ltd V Ogun State Water Corporation (2002) 3 SCNJ 342; AG Anambra State V Okeke (2002) 5 SCNJ 318. The purpose of the provision is, in my view, to obviate delayed justice.     

Additionally, in interpreting Section 15 of the Court of Appeal Act, 2004, the Supreme Court has, in the cases of: Ezeigwe V Nwawulu (2010) LPELR-1201(SC); Amaechi V INEC (2008) 5 NWLR (Pt. 1080) 227; Agbakoba V INEC (2008) 18 NWLR (Pt. 1119) 489; Obi V INEC (2007) 4 NWLR (Pt. 1046) 465; & Inakoju V  Adeleke (2007) 4 NWLR (Pt. 1025) 423, stated the extant position of the law explicitly. For the provision to apply, the following conditions must exist:
(a)    The lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it;
(b)    That the real issue raised by the claim of the Appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal;
(c)    That all necessary materials must be available to the court for consideration;
(d)    That the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
(e)    That the injustice or hardship that will follow if the case is remitted to the court below must be clearly manifest.

In relation to the Appeals before the Court, it goes without saying that the lower Court is vested with jurisdiction to hear and determine actions on title to land, which is the subject matter of the suit initially filed at the Area Court Burak. Secondly, the issue of title to the land in dispute is central to the grounds of appeal as well as the grounds of the cross-appeal, as is the failure of the lower Court to evaluate the evidence adduced on same by both parties before the trial Area Court. Thirdly, all the necessary materials for the determination of title to the land in dispute are also before this Court in the Record of proceedings of the trial Area Court, the Upper Area Court, as well as the Gombe State High Court, to enable this Court come to a final decision on the issue. Fourthly, this action seeking title to land has already suffered a chequered history, having been filed before the Area Court Burak, travelled up to the Upper Area Court 1 Gombe, then to the Gombe State High Court, and finally arrived at this Court. Having arrived at a finding that the Area Court Burak failed in its duty to properly evaluate the evidence presented to it by the parties, and instead wrongly resorted to administering a traditional oath on the parties to decide the issues in contention, it would amount to nothing but injustice and/or hardship that would follow if the case is remitted to the Court below, the lower Court or the Court of trial for such an action to be taken. In view of the fact that all the evidence necessary to arrive at a judicious decision is already available to this Court in the form of the comprehensive record of proceedings of the trial Area Court, it is most expedient, in the circumstances, for this Court to exercise its enabling powers provided under Section 15 of the Court of Appeal Act to determine the suit on its merit. To do otherwise would be to abdicate its responsibility, all circumstances necessary to warrant the exercise of this power being present and all conditions met.

It is therefore for these reasons that I endorse the findings of my learned brother in the lead Judgment that this is a proper case for the Court to wade in and step into the shoes of the trial Court to determine the merit or otherwise of the suit filed before the trial Area Court in respect of title to the land in dispute between the parties. 

With the fuller reasons given by my learned brother in the lead Judgment, I also come to these conclusions in the two Consolidated Appeals as follows:
1.    Appeal No. CA/J/257/2013 – The Appeal succeeds in part and is also allowed in part. The Judgment of the Gombe State High Court delivered on 08-04-13 in Appeal No. GM/29A/2012 is hereby set aside. In its stead the claim of the Appellant as Plaintiff in Suit No. CV/52/2011 is hereby dismissed for lacking in merit. No costs are awarded.
2.    Appeal No. CA/J/257A/2013 – The Cross Appeal also fails for lacking in merit and it is consequently dismissed. The finding of the Court below setting aside the findings of the Upper Area Court 1 Gombe and that of the trial Area Court Burak, is hereby affirmed.
                                                                                         
SAIDU TANKO HUSAINI
I agree.