AKURE & ORS v. BAKIWUYA & ANOR
(2022)LCN/16168(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, August 25, 2022
CA/MK/293/2017
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. AMALE AKURE 2. ADOGO AKWURE 3. AGASCU AKWURE 4. DANLADI AMALE 5. AKARMA AMALE 6. ASAMU AMALE 7. AWORGI AMALE 8. MUSA ADAMU 9. SALISU ISA APPELANT(S)
And
1. YARO BAKIWUYA 2. ISHAYA OSU RESPONDENT(S)
RATIO
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
It has been held in a long line of cases that there are five ways of proving title to land. These include traditional history and acts of possession among others. These five ways are independent and none is superior to the other. A claimant is expected to prove only one method by credible evidence. See IDUNDUN v. OKUMAGBA (1976) 9-10 SC 227, KARIMU v. FAJUBE (1968) NMLR Page 151 and OMAC OILS NIGERIA LIMITED & ORS v. ELDER SAMSON OLUSHOLA EGBADEYI & ANOR (2014) LPELR-24112 (CA) Page 32. PER HASSAN, J.C.A
THE POSITION OF LAW ON MINOR VARIATIONS IN THE TESTIMONY OF TWO WITNESSES
The Supreme Court, Per Oputa, JSC (of blessed memory) in the case of IKEMSON v. STATE (1989) LPELR-1473 (SC) at page 44 stated as follows:
“Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored and tailored witnesses. Minor variations in testimony seems to be badge of truth.’’
The above pronouncement regarding the position of the law made by the Apex Court, has equally been followed in plethora of cases. See among others, the case of UWEH v. THE STATE (2012) LPELR-19996 (CA), Page 46, wherein Garba, JCA (as he then was now JSC), placed reliance on the case of Queen v. Adelabu (55-56) WRNLR (III), 112 where it was held that:
‘’The absence of any discrepancies in the testimony of witnesses is the usual accompaniment of a concocted story. Imperfection in human reflection is quite normal.’’ PER HASSAN, J.C.A
THE POSITION OF NATIVE LAW AND CUSTOM ON THE OWNERSHIP OF FAMILY PROPERTY
Under native law and custom, a family property belongs to the family and all individual members of the family are entitled to enjoy the property. The maximum interest of a family over its land has been put as ‘fee simple absolute’ ‘absolute title’ ‘absolute ownership’, implying that an individual cannot have an identical interest as the family, as his interest to the land must have arisen initially by allotments to him of a portion of land by the family meaning that he has mere possessory title. See Olodo v. Josiah (2010) 18 NWLR (Pt. 1225) 653 at 680.
The Apex Court in the case of Olowosago v. Adebanjo (1988) NWLR (Pt. 88) Page 275 at 287 paragraphs A-B per Karibi-Whyte JSC, said “The concept of family property is original to our indigenous society, and is the bedrock of our law of inheritance. It is regarded correctly as the cornerstone of our indigenous land law. Judicial decisions are replete in the circumstances of the creation of family property. The most common circumstance is death intestate of a land owner, whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land, see Lewis v. Bankole 1 NLR 81. Family land can be created by a conveyance inter vivos, where land is purchased with money belonging to the family, see Nelson v. Nelson (1913) 13 NLR 248. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See Re Edward Forster (1938) NLR. 83, George v. Fajore (1939) 15 NLR. 1, Shaw v. Kehinde (1947) 18 NLR 129. For the land in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status.’’ PER HASSAN, J.C.A
WHETHER OR NOT THE COURT CAN RAISE AN ISSUE SUO MOTU ON BEHALF OF PARTIES
The Court cannot raise an issue suo motu and use the point so raised against any one of the parties without affording the parties to the dispute the opportunity to address the Court on the issue raised suo motu. See African Continental Seaways Ltd v. NDRGW Ltd (1977) 5 SC 235 at 249 – 250.
In Leaders of Company Ltd & Anor v. Major General Musa Bamaiyi (2010) 18 NWLR (Pt. 1225) 329 at 338 paragraphs D-G per Galadima, JSC said:
‘’Indeed, with the consensus of the parties that the Court below erred in law to have raised the issue as to the competence of the notice of appeal suo motu, without affording the parties an opportunity to address it on the point, this has resolved the first issue. This Court in KATTO’S case (supra) held thus:
‘’On no account should a Court of law raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve the case between the parties thereon without inviting them or counsel on their behalf to address the Court on the point. If it does so, it will be in breach of a party’s fundamental right to fair hearing. In the instant case, the Court of Appeal was wrong in raising the issue of jurisdiction suo motu and proceeding to decide the appeal thereon without inviting Counsel to address it thereupon.’’
The appellants were denied fair hearing at the Court below. This Court has held in a plethora of cases that where a party has been denied fair hearing the entire proceeding no matter how well conducted will amount to a nullity. See Adigun v. A.G. of Oyo State (No. 2) (1987) 2 NWLR (Pt. 56) page 197, Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659.’’ PER HASSAN, J.C.A
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Nasarawa State High Court sitting on appeal delivered by Hon. Justice S. O Aboki and Hon. Justice D. D. Adeck in Suit No. NSD/LF10A/2016, on the 15th day of June, 2017, against the judgment of the Upper Area Court Nasarawa, Nasarawa L.G.A, Nasarawa State, delivered by Hon. A. S. Mohammed in Suit No. UACN/CV54/2001, on the 29th of April, 2016.
The Respondents were the Plaintiffs at the Upper Area Court Nasarawa, and the Appellants at Appeals before the Nasarawa State High Court wherein they claimed and contended ownership over a plot of farmland against the Appellants herein who were the Defendants at the Upper Area Nasarawa, and Respondents on Appeal at the High Court of Justice, Nasarawa State. The Claims of the Respondents as per their Statement of Claim at the Upper Area Court are as follows:
a. A Declaration of title to their farmland having acquired same through devolution from their forefathers.
b. An Order of perpetual injunction restraining the Defendants, their agents, workmen, privies or anyone however so called or claiming to have acquired title through any of them from further trespass to the land or restraining the Defendants from harassing, intimidating, and insulting the Plaintiffs.
c. The cost of this action. See page 7 of the Record.
The Upper Area Court in her findings did not agree with the case of the Plaintiffs who now appealed to the High Court of Justice, Nasarawa State as Appellants and the High Court granted their reliefs in her judgment. (See pages 118 to 147 of the main Record). The Respondents being aggrieved with the decision of the Upper Area Court Nasarawa, filed a Notice of Appeal dated the 24th day of May, 2016, to High Court Nasarawa State. (See pages 1 – 6 of the Record).
The High Court of Justice, Nasarawa State in her considered judgment delivered on the 15th day of June, 2017, found at Pages 118 to 147 of the Main Record allowed the Respondents’ Appeal and set aside the judgment of the Upper Area Court Nasarawa. The Appellants herein aggrieved by that decision of High Court filed a Notice of Appeal dated the 18th day of July, 2017 to this Court (See page 150 – 154 of the main record), wherein he raised six grounds of appeal praying this Court to restore the decision of the Upper Area Court and set aside the judgment of High Court Nasarawa State. (See pages 150 – 154 of the Record).
The Record of Appeal was transmitted out of time to this Court on the 29th of November, 2017, and same was deemed proper before this Court on the 14th of May, 2019. Appellants amended their Notice of Appeal, and their further amended Notice of Appeal filed on the 27th September, 2021, but deemed properly filed before this Court on the 28th of September, 2021, containing six grounds of appeal is the extant Notice of Appeal. At the hearing of the appeal, the Appellants’ Counsel adopted the Appellants’ brief of argument and urged the Court to allow the appeal. The Respondents’ Counsel on his part adopted the Respondents’ brief and urged the Court to refuse the appeal.
BRIEF STATEMENT OF FACTS
The case of the Respondents at the trial Upper Area Court against the Appellants was for the ownership of a piece of farmland at Pima which according to PW1 was acquired from one Osu kakatakwa and was used solely by the Respondents’ family for farming activities until sometime the 1st to 7th Appellants who were their brothers relocated from Toto fleeing from war going on there and they requested for a place to stay until the war is over.
The Respondents in good spirit gave them a portion of their farm land which was close to the road to stay until when the war is over, they should return same. But after two years, the 1st to 7th Appellants did not return same and they built houses on it. It was then that the 8th to 9th Appellants forcibly came onto the land and claimed the land was theirs, and the 1st to 7th Appellants now said it was the 8th to 9th Appellants that gave them the land.
The Appellants began living on the land and built houses and used the economic trees and even buried their dead on the land. See pages 8 to 10 of the Supplementary Record of Appeal deemed on the 14/05/2019.
Based on the evidence of DW1, the Appellants’ case at the trial Upper Area Court was that the land belongs to them from inheritance from their forefathers and they lived and farmed on the land and even gave same out to persons to cultivate and be paying tribute to them.
That the land was given to the Respondents to farm as tenants and to be paying tributes, but they failed. Upon that, the Appellants made demand to the Respondents to pay up their tributes, but they reported the matter to the Emir of Nasarawa and the Appellants showed proof that the Respondents were their tenants and the matter was resolved.
That subsequently however, the Appellants made heap for planting and the Respondents planted on it, a situation which made the Appellants to report the matter to the police at Nasarawa, and upon the complaint, one Ishaya was arrested. But after his bail, he reported the matter to the police at Keffi, and followed up same with the summon from Upper Area Court. See pages 37 to 43 of the Supplementary Record deemed on the 14/5/2019.
The Appellants called three witnesses in defence and proof of their case that they inherited the land from their forefathers. While the Respondents in proof of their case that they acquired the farm land from the 8th and 9th Appellants called four witnesses.
ISSUES FOR DETERMINATION
The Appellants’ brief of argument distilled three issues for determination by this Court as follows:
1. Whether the Plaintiffs/Respondents have proved their traditional history over the land in dispute at the trial Court to be entitled to a declaration of title to the land in dispute in their favor. Distilled from grounds 4, 5, and 7 of the Notice of Appeal.
2. Whether by the evidence of the Plaintiffs as well as their witnesses, the land in dispute can be said to be a family land. Distilled from ground 4 of the further amended Notice of Appeal.
3. Whether the failure of the lower Court to call parties to address it on an issue it raised suo motu occasioned a miscarriage of justice. Distilled from ground one of the Notice of Appeal.
The Respondents herein in their brief of argument adopted the three issues formulated by the Appellants and made their submissions on them.
I have read the judgment of the lower Court, and the submissions of Counsel in their respective briefs. I shall adopt the three issues distilled in the Appellants’ brief as the proper issues arising for the just determination of this Appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
ISSUE ONE
Whether the Plaintiffs/Respondents have proved their traditional history over the land in dispute at the trial Court to be entitled to a declaration of title to the land in dispute in their favor. Distilled from grounds 4, 5, and 7 of the Notice of Appeal.
APPELLANTS’ COUNSEL SUBMISSIONS
On this issue, Counsel while urging this Court to hold that the Respondents have not established their case to be entitled to judgment submitted that Respondents must prove their declarative reliefs with cogent evidence without relying on the evidence of the Appellants to be entitled to same. Counsel referred to several authorities including Ogunyade v. Oshunkeye (2007) All FWLR (Pt. 389) 1179 at 1183, Edohoeket v. Inyang (2009) 51 WRN page 60 at 63 – 64 and S. 131 and 132 of the Evidence Act.
Counsel submitted that ownership or title to land may be proved by traditional history, production of title documents, acts of long possession, by proof of possession of connected or adjacent land, and acts of persons claiming the land. That the Respondents at trial Court relied on proof by traditional history and by this they are required to show by evidence who founded the land, how he found it, and the succession of inheritance up to the plaintiff, and they failed to do so. See Nwokorobia v. Nwogu (Supra).
Counsel contended that the evidence of PW1 and PW2 did not distinguish between deforestation and first settlement on the disputed farmland by Kakatakwa Osu as used by the two witnesses and it is counsel contention that the evidence of the two witnesses contradicted each other on that note and same is material and damages the case of the Respondents.
On the requirement of establishing the succession of the land up to the present person on the land, Counsel submitted that PW1 did not establish by way of evidence how the land devolved to him from Osu Kakatakwa whether it was by sale or grant or loan. That the evidence of PW1 and PW2 wherein they used the word ‘acquired’ and ‘took over’ did not explain how the land devolved to the present person on the land.
According to counsel, the evidence of PW1 and PW2 as to how the land came to be with Osu Kakatakwa who is not a party to the case leave unanswered questions as to what mode of acquisition did the disputed land devolve to Osu Kakatakwa and other unnamed persons, did it devolve to Osu Kakatakwa by conquest through war, gift, sale, loan, inheritance or how, and who are the other persons the land devolved to? According to counsel, these unanswered questions leave the Court to speculate which is not allowed in law. Counsel urged this Court to hold that the Respondents had failed to establish their claim to the farmland.
RESPONDENTS COUNSEL SUBMISSIONS
Respondents on this issue submitted that they proved their claim to the disputed land by traditional evidence as well as long possession and active acts of ownership at the trial Upper Area Court. That the evidence of PW1 satisfied the requirement of the law on who founded the land, in what manner it was found and the names and particulars of successive owners through whom he claims.
Counsel submitted that appellants’ contention that the evidence of PW2 is contradictory to that of PW1 on the founder of the land is misconceived, as the PW2 maintained that it was kakatakwa that founded the land. Counsel submitted also that Osu referred to by PW2 is Osu Kakatakwa as this cannot be mistaken from his evidence as the appellant is contending.
Counsel contended that there is no contradiction in the evidence of PW1 and PW2, and even if there is any contradiction, it is minor discrepancy or trifling inconsistency which does not cast serious doubt on the case presented by the Plaintiffs/Respondents.
Counsel contended that whether PW1 and PW2 used the words ‘acquire’ or ‘took over’ to show the mode of succession or the chain of succession from the original owner of the land down to the plaintiff is not an issue as it bothers on technicalities. It is clear that Osu Kakatakwa inherited the disputed land from Kakatakwa who deforested same, and the family administered the land till the present plaintiff.
RESOLUTION OF ISSUE ONE:
Whether the Plaintiffs/Respondents have proved their traditional history over the land in dispute at the trial Court to be entitled to a declaration of title to the land in dispute in their favour. (Distilled from grounds 4, 5, and 7 of the Notice of Appeal).
It has been held in a long line of cases that there are five ways of proving title to land. These include traditional history and acts of possession among others. These five ways are independent and none is superior to the other. A claimant is expected to prove only one method by credible evidence. See IDUNDUN v. OKUMAGBA (1976) 9-10 SC 227, KARIMU v. FAJUBE (1968) NMLR Page 151 and OMAC OILS NIGERIA LIMITED & ORS v. ELDER SAMSON OLUSHOLA EGBADEYI & ANOR (2014) LPELR-24112 (CA) Page 32.
In the instant appeal, the summary of evidence of PW1 reproduce from the record is to the effect that the land which they presently farm was founded by Kakatakwa who is late. He is the father of Osu Kakatakwa who is his uncle. That the land is family land. That Kakatakwa acquired the land long ago as a hunter who migrated from Gbatakum, deforested it while on his hunting expedition. That Kakatakwa is the father of Osu. That Osu is now old, weak, blind and cannot talk and when he became aged, some of them including the PW1 are the ones now farming on it. He said they are family i.e. himself, the other Plaintiffs and some other people he named. That he has been farming on the land for 34 years and has not been disturbed. That the 1st – 7th Defendants while in search of land met Osu Kakatakwa and sought for a grant who then consulted other family members who consented to it before the grant was made. See page 127 of the main records.
While the evidence of PW2 is that the said Osu Kakatakwa is the older brother of his father. That his father had farmed the land for almost 70 years before he died and that he died about 7 years ago. He PW2 has been cultivating the land for the past 30 years. He referred to Osu Kakatakwa his uncle as ‘’our father’’. He said when the 1st – 7th Respondents came as refugees, it was Osu Kakatakwa they met, who called the family members and he got their consent before he gave them the land close to the road. He said those of them that showed the 1st – 7th Respondents the portion of the land to settle and cultivate are Yaro Bakiwuya, himself, Yohanna Yaro and Yohanna Osu but Osu Kakatakwa could not go with them because he was blind. Under cross-examination, he said his father lived and farmed on the land for over 100 years before he died. He said the 1st Plaintiff (Osu Kakatakwa) was the elder brother of his own father. That the 1st Plaintiff i.e. Osu Kakatakwa consulted him and some of his brothers before agreeing to give the land and that he represented his father at such decision. He also said that Osu is the oldest in the family now and that Osu’s father’s name is Kakatakwa who was the 1st to clear the disputed land. PW2 also said Osu migrated from Gbatakum and was the 1st to settle on the land in dispute. See page 127 of the main records.
As rightly observed by the lower Court in their judgment that a combination of the evidence of PW1 and PW2 shows clearly that the Appellants (now Respondents) along with other persons that were initially Plaintiffs at the trial Court and others not mentioned as parties are all of the same Kakatakwa family who is their progenitor. That from the evidence of PW2, it is clear that it was his father who lived and farmed on the land for about 70 years and not Kakatakwa himself who founded the land and is late. That PW1 said the said Kakatakwa founded the land long time ago without stating the number of years. Taking these pieces of evidence together, it is clear that Kakatakwa was succeeded by Osu Kakatakwa and his brothers and from the evidence of PW2, Osu Kakatakwa is the oldest surviving member of the family as at the time he gave evidence. See pages 128 -129 of the main records.
On the issue of contradiction of evidence allegedly made by PW1 and PW2 argued by the Appellants’ counsel in pages 10-11 of his brief, that PW2 in his evidence in chief just like PW1 said Kakatakwa founded the land but during cross-examination, he now said Osu Kakatakwa was the 1st to settle there and that this is a material contradiction, again I referred to the observation of the lower Court in page 131 of the main records that even if the evidence of PW2 on this is taken away, that of PW1 is solid, it has not been challenged nor contradicted or discredited in any way, I agree with the Respondents that there is no contradiction in the evidence of PW2 or PW1 as regards the traditional history of the Plaintiffs. That any difference at best is a minor discrepancy or trifling inconsistency which does not cast serious doubt on the case presented by the Plaintiffs. The contradiction if any is not material. The Supreme Court, Per Oputa, JSC (of blessed memory) in the case of IKEMSON v. STATE (1989) LPELR-1473 (SC) at page 44 stated as follows:
’’Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored and tailored witnesses. Minor variations in testimony seems to be badge of truth.’’
The above pronouncement regarding the position of the law made by the Apex Court, has equally been followed in plethora of cases. See among others, the case of UWEH v. THE STATE (2012) LPELR-19996 (CA), Page 46, wherein Garba, JCA (as he then was now JSC), placed reliance on the case of Queen v. Adelabu (55-56) WRNLR (III), 112 where it was held that:
‘’The absence of any discrepancies in the testimony of witnesses is the usual accompaniment of a concocted story. Imperfection in human reflection is quite normal.’’
PW1 and PW2 stated how the 1st – 7th Respondents met Osu Kakatakwa the head of the family and how he consulted them before the grant was made. PW2 further mentioned the names of those that went and showed the portion of the land to the 1st – 7th Respondents. The Respondents (now Appellants) from the records did not challenge this nor contradict him or them and as rightly pointed out by the lower Court all the ingredients needed to prove a grant have been met.
Learned Counsel for the Appellants have argued at page 13 of his brief that the words ‘’acquired’’, ‘’got’’, and ‘’took over’’ as used by the Plaintiffs’ witnesses (PW1 and PW2), that it is clear that the words used are not capable of a single meaning to convince the Court as to the particular/exact manner the land in dispute devolved unto Osu Kakatakwa.
Learned Counsel for the Respondents in my humble view adequately answered this issue at page 10 of his brief that whether PW1 and PW2 used the words ‘’acquire’’ or ‘’took over’’ to show the mode of succession or the chain of succession from the original owner of the land down to the plaintiffs is not an issue as it bothers on technicalities. It is clear that Osu Kakatakwa inherited the disputed land from Kakatakwa who deforested same and Osu Kakatakwa administered the land on behalf of the other members of the family who are the present owners of the disputed land and if I may add technicalities are a blot upon the Administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice.
From the foregoing, I hereby resolve issue one against the Appellants.
ISSUE TWO
Whether by the evidence of the Plaintiffs as well as their witnesses, the land in dispute can be said to be a family land. Distilled from ground 4 of the further amended Notice of Appeal.
APPELLANTS’ COUNSEL SUBMISSIONS
The Appellants on this issue are contending that the Respondents did not prove the land is a family land by evidence and that they sued in representative capacity as that is not borne out of the case and evidence as required by law. That the action being in representative capacity, it is the duty of the Respondents to establish their commonality of interest which was not proved by the evidence of PW1 and PW2.
According to counsel, that the fact that the evidence of PW1 says that the Plaintiffs and other relatives of Osu Kakatakwa are cultivating the land does not make the land a family land, this is because the evidence of PW1 and PW2 shows individual ownership of piece of land. Therefore according to counsel the argument that the land is Kakatakwa family land must fail.
RESPONDENTS’ COUNSEL SUBMISSION
Counsel submitted that by virtue of the evidence of PW1 and PW2, the Respondents sued in Representative capacity and that the disputed land is a family land clearly. That counsel’s submission that no evidence was given to explain why among the Kakatakwa children, it is only Osu kakatakwa that solely acquired the land is puerile and baseless as it is established by evidence of PW1 and PW2 that Kakatakwa was the progenitor and after his demise, Osu Kakatakwa took over.
Therefore, from the evidence of PW2, it is clear that the land does not only belong to Osu Kakatakwa. But that it is a family land being partitioned amongst the various members of the family. The evidence on record only shows that the land was being farmed by the members of the Respondent’s family and that does not amount to partitioning of the land in any way.
Counsel submitted that on Appellants’ contention that the case was not filled on representative capacity, counsel submitted that from the plaint before the Trial UpperCourt, the a Area Court was brought clearly by way of representative capacity as the requirement of an action being brought in representative capacity was met as the plaintiff sued for themselves and on behalf of Kakatakwa decendants and they have a common dispute and grievance and the reliefs sought was beneficial to all the plaintiffs.
RESOLUTION OF ISSUE TWO:
Whether by the evidence of the Plaintiffs as well as their witnesses, the land in dispute can be said to be a family land. (Distilled from ground 4 of the further amended Notice of Appeal).
Under native law and custom, a family property belongs to the family and all individual members of the family are entitled to enjoy the property. The maximum interest of a family over its land has been put as ‘fee simple absolute’ ‘absolute title’ ‘absolute ownership’, implying that an individual cannot have an identical interest as the family, as his interest to the land must have arisen initially by allotments to him of a portion of land by the family meaning that he has mere possessory title. See Olodo v. Josiah (2010) 18 NWLR (Pt. 1225) 653 at 680.
The Apex Court in the case of Olowosago v. Adebanjo (1988) NWLR (Pt. 88) Page 275 at 287 paragraphs A-B per Karibi-Whyte JSC, said “The concept of family property is original to our indigenous society, and is the bedrock of our law of inheritance. It is regarded correctly as the cornerstone of our indigenous land law. Judicial decisions are replete in the circumstances of the creation of family property. The most common circumstance is death intestate of a land owner, whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land, see Lewis v. Bankole 1 NLR 81. Family land can be created by a conveyance inter vivos, where land is purchased with money belonging to the family, see Nelson v. Nelson (1913) 13 NLR 248. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See Re Edward Forster (1938) NLR. 83, George v. Fajore (1939) 15 NLR. 1, Shaw v. Kehinde (1947) 18 NLR 129. For the land in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status.’’
In the present appeal, the combine effect of the evidence of PW1 and PW2 clearly shows that the disputed land is a family land. PW1 in evidence said the land which they presently farm was founded by Kakatakwa who is late. He is the father of Osu Kakatakwa who is his uncle. That the land is family land. That Kakatakwa acquired the land long ago as a hunter who migrated from Gbatakum, deforested it while on his hunting expedition. That Kakatakwa is the father of Osu. That Osu is now old, weak, blind and cannot talk and when he became aged, that some of them including the PW1 are the ones now farming on it and they are family ie himself, the other Plaintiffs and some other people he named. While the evidence of PW2 is to the effect that Osu Kakatakwa is the elder brother of his father, he said his father had farmed the land for almost 70 years before he died. He said that he (PW2) has been cultivating the land for the past 30 years. See page 127 of the main records and pages 8-23 of the supplementary record filed on 13th May 2019 and deemed 14th May, 2019.
As rightly observed by the lower Court sitting as appellate Court in their judgment at pages 128 – 129 of the main record that a combination of the evidence of PW1 and PW2 shows clearly that the Appellants (now Respondents) along with other persons that were initially Plaintiffs at the trial Court and others not mentioned as parties are all of the same Kakatakwa family who is their progenitor. That taking their evidence together, it is clear that Kakatakwa was succeeded by Osu Kakatakwa and his brothers and from the evidence of PW2, Osu Kakatakwa is the oldest surviving member of the family as at the time he gave evidence.
From the foregoing, I am incline to agree with the Respondents that the disputed land did not belong solely to Osu Kakatakwa but to him and other members of the family and being the eldest and the head of the family he is the principal member of the family who could manage the disputed land on behalf of other members of the family.
On the issue that the Plaintiffs (now Respondents) did not prove the requirements of a representative action to qualify the land in dispute to be family land canvassed by the Appellants.
The nature of a representative action is such that given a common interest and a common grievance, a representative suit is appropriate if the relief sought by its nature is beneficial to all the persons sought to be represented. See Ogamioba v. Oghene (1961) 1 All NLR 59; (1961) 1 SCNLR 155, Nsima v. Nnaji (1961) 11 All NLR 441.
The answer to this issue is not farfetched, as observed and quite rightly in my view by the Respondents at page 14 of his brief that the Plaintiffs’ writ of summons and particulars of claim at the trial Upper Area Court dated 26th November, 2001 and filled on the 29th November, 2001 at pages 1-4 of the supplementary record filed on 27th September, 2021 and deemed on 17th January, 2022 shows that the Plaintiffs on record sued for themselves and on behalf of the Kakatakwa descendants, who have a common interest in the disputed land, a common grievance which is the trespassing of the disputed land by the Defendants and the reliefs sought for in their particulars of claim are beneficial to all the Plaintiffs. See also the evidence of PW1 and PW2 contained at pages 8 – 13 and pages 14 – 17 of the supplementary record filed on 13th May, 2019 deemed on 14th May, 2019.
From the foregoing, issue two is resolved against the Appellants.
ISSUE THREE
Whether the failure of the lower Court to call parties to address it on an issue it raised suo motu occasioned a miscarriage of justice. Distilled from ground one of the Notice of Appeal.
APPELLANTS’ COUNSEL SUBMISSIONS
Counsel on this issue submitted that it is the law that Courts have powers to raise issue suo motu but when they do so, they are required to call on parties to address her on it. However, this provision has exception as a Court does not have any power to raise an issue suo motu where it is clear that it lacks the requisite jurisdiction to entertain the matter in the first place. See Chukwuekezie v. APGA (2019) LPELR 47240 CA.
Counsel submitted that the removal of Osu Kakatakwa and Yaro Bakiwuya and leaving only Ishaya Osu and Yohana Yaro as parties and Appellants in the appeal in representative capacity by the High Court suo motu without calling on parties to address the Court does not fall within the exception provided by law, and the failure of the trial Court in calling parties to address her before arriving at this position has affected the right to fair hearing of Appellants and occasioned her miscarriage of justice.
That if the lower Court called on parties to address her it would find out that this parties has previously been substituted at the Upper Area Court and the right parties before the Court were Yusuf Kakatakwa, Yohana Yaro, and Ishaya Osu, and base on that, the notice of appeal filed in the High Court was incompetent and the Court lacked jurisdiction to hear same. See Hitech Contr. Co. Ltd v. Ude (Supra) and F.B.N Plc v. T.S.A Industries Ltd (2010) LPELR 1283.
According to counsel, this improper parties raised questions as to whether a proper notice of appeal was filed and same touches on the jurisdiction of the Court. Since the lower Court held that Osu Kakatakwa, Jatau Katapila and Yaro Bakiwuya are no longer Appellants before them, it means that they lack the legal capacity to sue and be sued and therefore no longer person in law and cannot not be parties to the appeal. It is counsel’s contention that their inclusion as parties at the lower Court renders the notice of appeal and all proceedings conducted incompetent and robs the lower Court of jurisdiction to determine the appeal. Counsel submitted that jurisdiction is the life wire of litigation and the lower Court having found out that the parties before it are not proper should had strike out the appeal, and the trial Court addressing the issue of the parties on her own breached the right to fair hearing of the Appellants.
RESPONDENTS’ COUNSEL SUBMISSIONS
On this issue, counsel while relying on the case of Adebimpe Rebecca v. A. G. Federation & Ors (2010) LCN 3700 submitted that it is not all points addressed by a judge suo motu that constitute a breach against issues raised suo motu. According to Counsel, the issue raised by the lower High Court was one that was glaring by the record before the trial Court which was not addressed by the trial Court and that same relates to the exception of issues being raised suo motu and requiring parties to address the Court in that it is a jurisdictional issue of the proper parties before the Court and in the appeal, and therefore, the Court was not bound to ask counsel to address her on the point. Counsel relied on the authority of Gbagbarigha v. Toruemi (2013) 6 NWLR (Pt. 1350) 289 at 310 Para C – G and Okonta v. Philips & Ors (2010) LPELR 1373.
Counsel submitted on Appellants’ submission that the notice of appeal is incompetent for having dead parties is misconceived as the issued determined by the Court suo motu ratified the Notice by identifying the parties alive who substituted the deceased parties and are sufficient to represent the kakatakwa family. That even though the 1st, 2nd and 3rd Plaintiffs were deceased and struck out at the trial Court, the notice of appeal contained the name of the living 4th Plaintiff. More so, the 1st and 3rd Plaintiffs were substituted at the trial Court, therefore the appeal was proper and competent.
That the action being brought in representative capacity and the 4th plaintiff being substituted and alive make the action competent and a judgment can be entered since his name is on the case and it is fought on representative capacity, thus, the Court according to counsel was right to address the issue suo motu.
RESOLUTION OF ISSUE THREE
Whether the failure of the lower Court to call parties to address it on an issue it raised suo motu occasioned a miscarriage of justice. (Distilled from ground one (1) of the Notice of Appeal).
The settled position of the law which remains inviolate is that a Court is strictly bound by the case presented to it as postulated on the pleading of the parties. Thus, parties are bound by their pleadings just as the Court seized of the matter is bound to make its findings only within the scope of the parties’ case as pleaded. It does not lie in the province or powers of the Court to make case for the parties.
The Court cannot raise an issue suo motu and use the point so raised against any one of the parties without affording the parties to the dispute the opportunity to address the Court on the issue raised suo motu. See African Continental Seaways Ltd v. NDRGW Ltd (1977) 5 SC 235 at 249 – 250.
In Leaders of Company Ltd & Anor v. Major General Musa Bamaiyi (2010) 18 NWLR (Pt. 1225) 329 at 338 paragraphs D-G per Galadima, JSC said:
‘’Indeed, with the consensus of the parties that the Court below erred in law to have raised the issue as to the competence of the notice of appeal suo motu, without affording the parties an opportunity to address it on the point, this has resolved the first issue. This Court in KATTO’S case (supra) held thus:
‘’On no account should a Court of law raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve the case between the parties thereon without inviting them or counsel on their behalf to address the Court on the point. If it does so, it will be in breach of a party’s fundamental right to fair hearing. In the instant case, the Court of Appeal was wrong in raising the issue of jurisdiction suo motu and proceeding to decide the appeal thereon without inviting Counsel to address it thereupon.’’
The appellants were denied fair hearing at the Court below. This Court has held in a plethora of cases that where a party has been denied fair hearing the entire proceeding no matter how well conducted will amount to a nullity. See Adigun v. A.G. of Oyo State (No. 2) (1987) 2 NWLR (Pt. 56) page 197, Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659.’’
However, notwithstanding that a Court should avoid raising or initiating controversy in a matter less there is a breach of right to fair hearing, a Court is nevertheless entitled within the exceptions highlighted to raise an issue suo motu in the interest of justice in deserving cases, and where the facts in support of the issue raised suo motu exists in the litigation.
In Engr. Chinedum O. Anya v. Barr. Onwuchekwa O. Anya & Ors (2020) LPELR-49386 (SC) Pages 10-12, paragraphs A-E per ABBA AJI, JSC held:
‘’Another gravamen of the Appellant is that the lower Court raised the issue of forgery suo motu without affording the parties the opportunity to address it. The law is well entrenched further that the appeal Court has the discretion to take on a point suo motu and the general principle is that the parties must be given an opportunity to be heard. However, authorities have shown that the failure to observe this principle would result into a misdirection which will be over-turned only if there has been a substantial miscarriage of justice. Per OGUNBIYI, JSC in DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR – 43710 (SC). The facts in this case do not show that this was the case. The Appellant’s case before the trial Court was founded on the fact that the Will left by the deceased was forged wherein in proof or otherwise, a handwriting expert testified, which was in favour of the Respondents. How then did the issue of forgery become fresh on appeal? The lower Court being confronted with the whole facts and as reflected in the record, discovered that the issue of forgery was well founded and cannot be a new issue calling for address of parties. I think the Appellant is lost as to the distinction between raising an issue suo motu and looking into the case/file by the Court to determine a matter. This was touched by Per OKORO, JSC in AKEREDOLU V. ABRAHAM & ORS (2018) LPELR-44067 (SC), when he inter alia proposed that: ‘’I agree with the Court below that the fact of the appellant carrying on part of his law business in Abuja was not introduced into the litigation by the learned trial Judge. Rather, it was exposed to the Court by the learned senior counsel for the Appellant via a letter to the Deputy Chief Registrar of the Court where one of the offices of the Appellant’s Law office is shown to be located in Abuja. A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it. A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from the stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.’’ In the instant appeal, the issue of the parties raised by the Court below was an issue already in existence in litigation which was not addressed by the Upper Area Trial Court as well as the parties and the lower Court sitting as Appellate Court in their wisdom in resolving the issue said at pages 122- 123 of the main record that ‘’It is pertinent to clear one issue that is prominent but seem neglected by the parties or their counsel and even the trial Court ie who were the Plaintiffs at the trial Court and by extension the Appellants before us.
Base on the plaint filed before the trial Court, the Plaintiffs on records are: (1) Osu Kakatakwa (2) Jatau Katapila (3) Yaro Bakiwuya Jatau and (4) Ishaya Osu. On 19/11/2010 when the matter was mentioned, the Appellants counsel Abel Samuel, Esq., applied and had Osu Kakatakwa substituted with Yusuf Kakatakwa while Yaro Bakiwuya Jatau was substituted with Yohanna Yaro. See page 2 of the printed record of proceedings.
It is therefore curious to us that at pages 23 and 25 of the printed record, an application was made and the names of Osu Kakatakwa and Jatau Katapila were struck out because they were dead while Musa Osu and Yusuf Kakatakwa were said to replace them on 2/2/2012. This is curious because as at 2/2/2012, Osu Kakatakwa was no longer a party before the Court, he had long been replaced by Yusuf Kakatakwa. Again, while we concede that Jatau Katapila is deceased, he cannot be substituted by Yusuf Kakatakwa who is already a party before the Court because Yusuf Kakatakwa cannot be two figures in one person before the Court.
In the eyes of the law, Osu Kakatakwa, Jatau Katapila and Yaro Bakiwuya Jatau are no longer parties before the trial Court and before us and so cannot be Appellants before us, the only Plaintiffs who in the eyes of the law are still parties are Ishaya Osu and Yohanna Yaro and before us they are the only Appellants. Why we think this appeal is not affected by this vice is that right at the initial stage, the suit was filed in a representative capacity and the notice of appeal was signed by the counsel, hence since there are subsisting parties before us, they cover the field for the rest of the Kakatakwa family and we so hold.”
The observation made by the lower Court in my humble view fell within the exceptions of issues that could be raised suo motu and decided by the trial Court without recourse to the parties or their Counsel.
In MR MICHAEL IDACHABA & ORS V. THE UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2021) 1 SCM 53 at 68 paragraphs C-H per MUSA ABBA AJI, JSC stated:
‘’Furthermore, a judge can only be accused of raising an issue suo motu if the issue was never brought up by any of the parties or both parties in the litigation. A Court is not a Zombie or robot to go along with the cliché ‘’garbage in, garbage out’’. The Court exists to determine and examine with due diligence and sense, matter before it in its pursuit of justice. Therefore, where it would enthrone injustice, the Court will not close its eyes to any irregularity however shown on the record without suo motu dealing with it.” See Per PETER-ODILI, JSC in Ogar & Ors V. Igbe & Ors (2019) LPELR- 48998 (SC) (PP. 42- 44, Paras. C-A), (2019) 7 SCM, 170.
Finally, I must strongly warn here that it is not an irrevocable principle that a Court cannot raise an issue suo motu. The issue the Appellants’ learned Counsel allegedly contends that the lower Court raised suo motu was an issue of jurisdiction of the trial Court to entertain the claims of the Appellants. The issue having been pleaded and jurisdictional, the lower Court was free and right to so raise it suo motu. In fact, this matter was laid to rest, Per OLABODE RHODES-VIVOUR, JSC in Omokuwajo V. FRN (2013) LPELR-20184 (SC) (PP. 37-38, Paras. F-D), (2013) 6 SCM, 193 when he held that:
“The need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if:
(a) The issue relates to the Court’s own jurisdiction.
(b) Both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the judge is expected to take judicial notice. See Section 73 of the Evidence Act.
(c) When on the face of the record, serious questions of the fairness of the proceedings is evident.’’
In the present appeal, there is no scintilla of evidence of any miscarriage of justice and none has been proven by the Appellant. The lower Court was on the right footing to have raised the issue of proper parties before the Court an issue that relates to the Court’s own jurisdiction and determine it suo motu as it falls within the exception provided by law. The accusation of the Appellants against the lower Court that the issue raised suo motu does not fall within the exceptions provided by law is unfounded. The lower Court did not violate the Appellants’ right to fair hearing. All the parties to this appeal were duly accorded opportunity of being heard by the lower Court.
On the allegation made by the Appellants that the notice of appeal filed by the Respondents at the lower Court was incompetent because it was not filed in the names of the proper Plaintiffs on record namely; Yusuf Kakatarkwa, Yohanna Yaro and Ishaya Osu.
The lower Court squarely addressed this issue in their judgment at page 123 of the main record where it clearly stated that the appeal is not affected because the suit was filed in a representative capacity and since there are subsisting parties before them they cover the field for the rest of the Kakatakwa family. It must be emphasized that Courts are no longer inclined towards dwelling on technicalities but rather lean towards doing substantial justice in deserving cases. Issue three is hereby resolved against the Appellant.
It is a settled principle of law that where a trial Court has carried out its assignment satisfactory, an appeal Court shall be left with no option but to affirm such a decision. See Sule Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) page 659 at 674 paragraphs F-G per I.T. Muhammad JSC, Ali v. State (2015) 10 NWLR (Pt. 1466) Page 1 at 31 paragraphs D-H per Ogunbiyi JSC.
In conclusion, this appeal fails and is hereby dismissed. The judgment of the lower Court delivered on the 15th day of June, 2017 in Suit No. NSD/LF10A/2016 by Justices Simon O. Aboki and D.D. Adeck is accordingly AFFIRMED.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA, and I am in complete agreement with the reasoning and conclusion of my Lord in his lead judgment on all the issues raised.
On the whole, I adopt them as mine to also hold that the Appellants’ appeal is unmeritorious and same is accordingly dismissed.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA. My learned brother has elaborately dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is lacking in merit and should be dismissed.
Where a party traces his root of title to a person or a group of persons, and the title of the person or group of persons is challenged as in this appeal, he must establish how the person or group of persons derived his or its title to the land.
The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. Who founded the land
2. How he founded the land
3. The particulars of the intervening owners through whom he claims.
See NGENE V. IGBO (2000) LPELR-1987 (SC), EZEOKONKWO V. OKEKE (2002) 5 S.C (PT.1)44.
The primary element is for the claimant to prove who founded the land in dispute. The Plaintiffs now Respondents at the trial Court and through PW1 led evidence that the farmland in dispute was founded by Kakatakwa who deforested it while on his hunting expedition. That after his death, his son Osu who is now old, weak and blind took over, and through him, PW1 and some of the family members have been farming on the farmland for 34 years without any disturbance.
PW2 in his evidence also testified that, Osu Kakatakwa is the older brother of his father, and his father cultivated the land to 70 years before he died. He stated further that the 1st – 7th Appellants came as refugees and it was Osu who in consultation with other family members that granted the portion of land close to the road to them to settle and cultivate.
A trial judge faced with competing history of traditional title has to determine the truth of the history on the basis of probability that either of them could be true. The lower Court carefully examined the evidence adduced in this suit and found the evidence of the Plaintiffs now Respondents to be weightier and more probable. I completely agree with him that the Respondents led overwhelming evidence to prove their claim by traditional history.
This is to say that a party who fails to discharge the burden of proving his root to the land in dispute as pleaded by him, is not entitled to a declaration of title. The Appellants having failed to establish their root of title cannot be entitled to any declaration of title to the land.
With the resolution of issue one in favour of the Respondents, I believe it has conclusively put an end to this appeal. Accordingly, I also reach the conclusion that the appeal is lacking in merit and is hereby dismissed. The judgment of the lower Court suit in No. NSD/LF10A/2016 delivered by Hon. Justice Simon O. Aboki and D. D. Adeck, dated 15th day of June, 2017, is hereby affirmed.
Appearances:
AHMED LOKO, Esq. For Appellant(s)
N.B. OYENIYI, Esq. For Respondent(s)