BABAKANGE ETSU YAMPA & ORS v. ALHAJI ZUBAIR ALIYU BABAREKE & ANOR (2016)

BABAKANGE ETSU YAMPA & ORS v. ALHAJI ZUBAIR ALIYU BABAREKE & ANOR

(2016)LCN/8333(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of March, 2016

CA/IL/56A/2013

RATIO

COURT: JURISDICTION; HOW TO DETERMINE THE JURISDICTION OF A COURT TO ENTERTAIN A CLAIM OR SUIT

Jurisdiction is abecedarian, meat-and-potatoes in the exercise of the power of a Court. In determining the jurisdiction of a Court to entertain a claim or suit, it is beyond contention that resort must be had only to the claim and pleadings of the Plaintiff. See: First Bank Plc. v. Abraham (2008) 12 SCNJ (Pt. 11) 747 at 755; Adeyemi & Ors. v. Opeyori (1976) 9 & 8 S.C. 31; Goldmark Nig. Ltd. & 3 Ors v. Ibafon Company Ltd & 4 Ors. (2012) 3 S.C. (Pt. 111) 72 at 146. per. UCHECHUKWU ONYEMENAM, J.C.A.

COURT: JURISDICTION; THE SCOPE OF THE JURISDICTION OF THE HIGH COURT

The trial Court is a creation of the Constitution and it is the same Constitution that confers jurisdiction on it that can take or oust its jurisdiction, not any other law or Statute. This was the position of the Supreme Court in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 172 para. H-C per Ayoola, JSC; where it was held as follows: “The coming into force of the 1979 Constitution had a considerable impact on the jurisdiction of the High Courts of the States. While prior to the Constitution there was no express vesting of the judicial powers in the judicature and the jurisdiction of the High Courts of the States was to be found in State legislation which tended to vary from State to State a change was affected by Section 236(1) of the 1979 Constitution which provided as follows: “Subject to the provisions of the Constitution and in addition to such other jurisdiction as may be conferred upon it by law the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceeding in which the existence or non-existence of a legal right, power, duty, liability, privilege, interest, obligation, or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.” The provision of Section 236(1) of the 1979 Constitution did not permit the ‘unlimited’ jurisdiction vested in the High Court of a State to be limited other than as the Constitution itself may have provided. That was said by this Court in the recent case of Okutale v. Awosanya (supra) in consonance with similar views expressed in Bronik Motor Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 and Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212. The answer to the question whether the jurisdiction of the High Court of a State is curtailed after the 1979 Constitution had come into effect is therefore not to be found in State legislation but solely in the Constitution itself.” See also Adetayo v. Ademola (2010) is NWLR (Pt. 1215) 169. per. UCHECHUKWU ONYEMENAM, J.C.A.

COURT: JURISDICTION; CONDITIONS A STATUTE MUST FULFILL BEFORE IT CAN OUST TH JURISDICTION OF THE COURT

Furthermore, it is settled principle of law that before a Statute can oust the jurisdiction of the Court; such Statute must be clear and unambiguous in its provisions. Accordingly, in my opinion, before Section 11 of the Kwara State Boundary Settlement Law can be held to oust the jurisdiction of the High Court, it must be expressly spelt out and stated in the law and not by implication. Since there is no such express statement in the law, it cannot be imputed let alone make it override the provisions of the Constitution. Standing on a more firm ground in my opinion that the Local Boundary Law of Kwara State did not oust the jurisdiction of the High Court is my leaning on the apex Court’s decision in A.G. Rivers State v. A.G. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 at 155 paras B-C, where Galadima (JSC); considering the provisions of the National Boundary Commission Act, CAP N10, LFN, 2004 opined as follows: “I have set out the functions of the NBC above and from the provision of the NBC Act, it cannot be seriously suggested that before jurisdiction of this Court is invoked in a boundary dispute between States, the NBC should have determined the dispute or completed its exercise in delineating the disputed boundary.” per. UCHECHUKWU ONYEMENAM, J.C.A.

APPEAL: WHETHER AN APPELLATE COURT CAN ALLOW FRESH ISSUE ON APPEAL TO BE TAKEN WITHOUT LEAVE

The law is straight jacket, an appellate Court cannot allow fresh issue on appeal to be taken without leave since it was not pronounced upon by the Court below. It is more grave where the Appellant tries on appeal to raise an issue which was not raised nor considered by the trial Court. In any case, where the issue is a question on substantial point of law, be it substantive or procedural and it is clear that no further evidence would be called; the Court may allow the issue to be raised howbeit; subject to leave having been first sought and obtained. Where an Appellant fails to first seek and obtain leave of Court before raising fresh point, both the issue so raised for determination and the ground of appeal from where it was distilled would be incompetent. See: Ojiogu v. Ojiogu (2010) 9 NWLR (Pt. 1198) 1; Onyemaizu v. Ojiako (2010) 4 NWLR (Pt. 1185) 504. per. UCHECHUKWU ONYEMENAM, J.C.A.

APPEAL: ISSUE FOR DETERMINATION; THE IMPLICATION OF AN ISSUE FOR DETERMINATION THAT DOES NOT FLOW FROM A GROUND OR GROUNDS OF APPEAL

On issue for determination in an appeal, the law is trite that it must flow from a ground or grounds of appeal else it will be incompetent and liable to be struck out. See: Wachukwu & Anor. v. Owunwanne & Anor. (2011) LPELR-3466 (SC); Yisi Nigeria Ltd. v. Trade Bank Plc. (2013) LPELR 20087 (SC). per. UCHECHUKWU ONYEMENAM, J.C.A.

TENANCY: WHAT ARE THE FUNDAMENTAL FEATURES OR INCIDENCE OF CUSTOMARY TENANCY

The fundamental features or incidents of customary tenancy have been set out by judicial authorities to include payment of tributes or rent, See:Dashi v. Satlong (supra); right of possession, see Chikere v. Okegbe & Ors. (2000) 12 NWLR (Pt. 681) 274; right to maintain action in trespass even against the customary landlord, See:Nyavwaro & Ors v. Ogedede (1971) NSCC 206. Although the payment of tribute or rent is an essential feature of customary tenancy, however the non-payment or absence of rent or tribute is not inconsistent with the existence of customary tenancy. See: Alade v. Aborishade (1960) 5 F.S.C. 167; Dashi v. Satlong (supra). The reasons which abide common sense are that: the payment of tribute or rent may clearly be excluded in the transfer of interest to a customary tenant; or the presence of a substantial reason which does not on itself challenge the title of the overlord but for which a customary tenant may not pay rent. See: Alade v. Aborishade (1960) 5 F.S.C. 167; Dashi v. Satlong (supra). Tabai, JSC (retired) in Dashi v. Satlong held that “it is not an incident of customary tenancy that tributes can be paid by customary tenant to the landlord through a third party.” The Appellants herein have relied on this to urge the Court to hold that since it is in evidence that tribute from the Appellants was paid to the Respondents through PW7 one Alhaji Gbadamosi, it means there was no proof of customary tenancy. The Respondents’ learned senior counsel at pages 28-29 para 5.09 distinguished the case of Dashi V. Satlong (supra) from the present appeal and submitted that Dashi case was not applicable to the instant appeal. per. UCHECHUKWU ONYEMENAM, J.C.A.

CUSTOMARY LAW: WHAT IS CUSTOMARY LAW

Customary law is a reflection of accepted usage and culture of a given people. It is the subsisting native law and custom as opposed to an antediluvian belief and custom not in touch with the present generation. See: Barainam, FJ., description of customary law in Owonyin v. Omotosho (1961) 1 ALL NLR 304; (1961) 2 SCNLR 57; Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. Customary law is not static; it is organic in nature and develops along with the society wherein it is operative. The law remains relevant to the developing society in regulating the lives and transactions of the indigenous people of the area it applies. Thus customary law is a question of fact to be proved by evidence; or judicial notice if it has been established as required. See Sections 16, 17 and 13 of the Evidence Act. See also: Ogolo & Ors v. Ogolo & Ors. (2003) 12 S.C. (Pt. 1) 56; (2003) 18 NWLR (Pt. 852) 494. per. UCHECHUKWU ONYEMENAM, J.C.A.

PRACTICE AND PROCEDURE: CROSS EXAMINATION; THE IMPLICATION OF THE FAILURE OF A PART TO CROSS EXAMINE A WITNESS IN RESPECT OF ANY PART OF HIS EVIDENCE

The law is clear, where as in this case a party fails to cross examine a witness in respect of any part of his evidence, the party which failed to so cross examine is deemed to have admitted and accepted the truth of the said evidence. See: Nnamdi v. Nwosu (1992) 5 NWLR (Pt. 241) 273; Eresia-Eke v. Orikoha (2010) 8 NWLR. 1197) 421. per. UCHECHUKWU ONYEMENAM, J.C.A.

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

1. BABAKANGE ETSU YAMPA

2. NDASALA (BABA SAMU)

3. YISSA WANZIKO

4. NDAGBON – Appellant(s)

AND

1. ALHAJI ZUBAIR ALIYU BABAREKE

2. ALHAJI SAIDU LAWAL ONIREKE – Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Kwara State sitting at Ilorin delivered on 9th october, 2013. The judgment is contained at pages 230-264 of the record of appeal. What culminated into the judgment was that the Respondents to this appeal had instituted a suit against the Appellants on 9th December, 2010 claiming the following reliefs:

(a) “A Declaration that the Claimants are the lawful and/or bona-fide owners of the piece of land known and called Onireke family land and all the appurtenances thereon lying, being and situate at share, Ifelodun Local Government Area starting from Kange to OdoKasan boundary at share junction (Sakanke with Elese Compound, with Ajobo family at Igbodun, Sangoniyi family at Idi Efu with MomoduAnkoro family at Kasan stream as neighbours and that they are entitled to be issued and/or granted certificate of occupancy on the said piece of land.

(b) A Declaration that the claimants are the persons in possession of the plots of land described above.

the Claimants.

(d) A Declaration that refusal of the Defendants to pay their requisite tribute (Ishakole) as at when due to the Claimants despite persistent demand amount to automatic forfeiture of their tenancy under native law and custom.

(e) A Declaration that continuous entry and occupation of the Defendants, their agents and privies on the Claimants’ parcel of land having deliberately failed to pay their tribute to the Claimants and without Claimant’s consent amount to trespass to land.

(f) An Order of this Honourable Court compelling the Defendants, their agents or any person deriving authority from them to remove any offending and provoking building and/or structure, that might have been erected on the land without Claimants’ consent.

(g) The sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira) only as General Damages for trespass on the Claimants’ land.

(h) An order of perpetual injunction restraining the Defendants, their agents, privies, relatives or anybody or person claiming title through them from erecting any further building and/or committing any act of further act of trespass on the Claimants’ land or from

dealing with the land in any manner adverse to the Claimants’ interest.

(i) The cost of filing this suit.”

The Appellants filed their defence on 14th April, 2011. At hearing the 1st Respondent testified with 8 other witnesses in favour of the Respondents. 14 documents were tendered through the Respondents’ witnesses and admitted by the Court. The Appellants opened their defence by calling just the 2nd Appellant to testify. He tendered a document (Kwara State of Nigeria Gazette No. 15 of 28/9/12); which was received in evidence and marked Exhibit E.

After the close of the Appellants’ defence, the parties were ordered to file and exchange final written addresses by the Court. However, the Appellants who were supposed to file address first refused to file their written address which made it impossible for the Respondents to file theirs. On 26th June, 2013, after the Appellants refused to file their written address, the time for both parties to file their written addresses having lapsed, the Respondents urged the Court to adjourn for judgment based on the evidence before it. See page 228 of the record. The learned trial Judge consequently

adjourned for judgment which was delivered on 9th October, 2013 in favour of the Respondents against the Appellants.

The Appellants being dissatisfied with the above judgment have now appealed to the Court, hence, this appeal.

Upon the filing of parties’ briefs of argument in line with the Rules of this Court; the appeal was heard on 26th January, 2016. Mr. Manzumalssa who appeared with M. N. Dangana, Esq., Mrs. A. O. Temim, Z. O. Alhasan, Esq. and A. D. Bassey, Esq.; settled the Appellants’ brief. Before he argued the appeal Mr. Issa drew the attention of the Court to the Notice of withdrawal filed in Appeal No: CA/IL/56/2013. The said appeal was dismissed with the consent of Mr. O. W. Akanbi for the Respondents, pursuant to Order 11 Rule 2 of the Court of Appeal Rules, 2011. Thereafter Mr. Issa adopted and relied on the Appellants’ brief filed on 15th June, 2015 in urging the Court to allow the appeal.

Mr. O. W. Akanbi with Miss E. O. Edjeba for the Respondents adopted and relied on the Respondents’ brief settled by Dr. J. O. Olatoke, SAN which brief was filed on 13th July, 2015. Mr. Akanbi urged the Court to dismiss the

appeal.

While the Appellants raised 3 issues; the Respondents raised 2 issues for the determination of the appeal. The issues as formulated by the parties are as set out hereunder:

Appellants’ issues are:

“1. Whether the learned trial Judge could assume jurisdiction over this suit since it is a boundary dispute between Edu Local Government and Ifelodun Local Government, Areas of Kwara State, which had been settled by Kwara State Gazette No. 15, vol. 44 of 23rd September, 2010.

2. Whether the learned trial Judge was right in holding that the Appellants did not prove the issue of jurisdiction raised in their statement of claim and the evidence before the Court.

3. Whether the learned trial Judge was right in holding that the Appellants are customary tenants, when there is no evidence of payment of tributes by the Appellants to the Respondents.”

Respondents’ issues are:

“1. Whether from the state of the Respondents, pleadings, the Respondents’ suit is a boundary dispute and whether the provisions of the Local Boundary Settlement Law of Kwara State oust the jurisdiction of the trial Court on boundary matters.

2. Whether from evidence before the trial Court, the learned trial Judge was not right when he held that the Appellants were customary tenants to the Respondents.”

The 3 issues formulated by the Appellants are same with the Respondents’ 2 issues. The Respondents’ issue 1 encapsulates issues 1 and 2 of the Appellants’ issues, little wonder the Appellants argued issues 1 and 2 together. That being the case, since it is the Appellants that are vexed by the decision of the trial Court, to drag home the point that their grouse is well epitomized, I shall adopt the issues as distilled by the Appellants for the determination of this appeal. Issues 1 and 2 shall be resolved together.

ISSUES 1 AND 2

“1. Whether the learned trial Judge could assume jurisdiction over this suit since it is a boundary dispute between Edu Local Government and Ifelodun Local Government Areas of Kwara State, which had been settled by Kwara State Gazette No. 15, vol.44 of 23rd September, 2010.

2. Whether the learned trial Judge was right in holding that the Appellants did not prove the issue of jurisdiction raised in their statement of claim and the evidence before

the Court.

Mr. Manzumalssa in the Appellants’ brief referred to the Supreme Court decision, per Rhodes-Vivour, JSC, in Goldmark Nig. Ltd. & 3 Ors. v. Ibafon Company Ltd. & 4 Ors. (2012) 3 SC. (Pt. 111) 72 at 146, paras. 5-15, on jurisdiction and how it is determined. He also referred to the provisions of Section 11 (1) of the Local Boundary Settlement Law, Cap. L7, Laws of Kwara State, 2006; H.R.H. Momoh & 3 Ors. v. H.R.H. Umoru & 3 Ors. (2011) 6-7 SC. (Pt. 1) 80 at 161-162; George Nwabia v. Adiri & 3 Ors. (1958) 3 F.S.C. 112.

He contended that by the Appellants’ statement of defence which stated that Kange village is in Tsaragi District of Edu Local Government Area of Kwara State and the insistence of the Respondents in their case that the Kange village is in Ifelodun Local Government Area of Kwara State; the suit is a boundary dispute between Edu Local Government Area of Kwara State and Ifelodun Local Government Area of Kwara State for which relying on the above authorities the trial Court lacked the jurisdiction to try.

In emphasizing that the suit is a boundary dispute he drew the attention of the Court to

paragraph 2 of the statement of claim of the Respondents at page 4 of the record. He noted that the Respondents’ position at the said paragraph 2 counters the position of the Kwara State Government as contained in Exhibit E. He therefore faulted the learned trial Judge’s findings at page 259, lines 3 – 8 and lines 18 – 21 of the record; to the effect that the suit was not a boundary dispute.

The learned counsel reproduced Exhibit E and part of Exhibit D4 to contend that both disclosed boundary dispute between Edu and Ifelodun Local Government Areas and wondered why the learned trial Judge relied on Exhibit D4 instead of Exhibit E in arriving at his conclusion.

He urged the Court to properly evaluate Exhibits D4 and E and to hold that the suit was a boundary dispute.

?Furthermore, Mr. Issa submitted that the Respondents’ case is an abuse of Court process and as such the learned trial Judge lacked the jurisdiction to entertain same. He contended that the Respondents being dissatisfied with Exhibit E, the only option open to them was to apply for judicial review of the Government’s action. This he argued the Respondents had done as

evidenced by their statement of defence at pages 77 – 79 and the 1st Claimant’s (Pw9) further witness statement on Oath at pages 80 – 81.

The learned counsel argued that the 2 different action, in 2 different Courts the Respondents admitted filing in contest of the same cause of action makes the present action leading to this case no matter how couched an abuse of the Court process. He referred to the Supreme Court in: Dingyadi & Anor. v. INEC & 2 Ors. (2010) 7-12 S.C. 105 at 134. He also referred to the unreported judgment of the High Court of Kwara State in suit No: KWS/354/2010: Comrade Sunday Ajayi & 2 Ors. v. The Governor of Kwara State & 3 Ors; to say, Exhibit E had been declared valid and which decision was upheld by this Court in her decision on 8th May, 2015.

He urged the Court to resolve issues 1 and 2 in favour of the Appellants.

In response, Dr. J. O. Olatoke, SAN in the brief settled for the Respondents submitted that the Respondents’ claim at the trial Court was not a boundary dispute and as such is not caught by the provisions of the Kwara State Local Boundary Settlement Law CAP L7, 2006, hence does not

oust the jurisdiction of the Court. The learned senior counsel noted that it is the Claimants’ claim that determines jurisdiction of the Court. He referred to: First Bank Plc. v. Abraham (2008) 12 SCNJ (Pt. 11) 247 at 755; Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 769 at 188-189 paras H – C.

He urged the Court to look at the Respondents’ writ of summons and statement of claim and to hold that the trial Court had jurisdiction as the said claim did not touch on boundary dispute and as such Kwara State Local Boundary Settlement Law CAP L7, 2006 did not apply.

The learned silk went on to argue that in the event that the Court holds that the Boundary Settlement Law is applicable, there is nowhere in the law where the jurisdiction of the Court in respect of this issue is ousted. He relied on: Johnson v. Mobil Producing UNLTD (2010) 7 NWLR (Pt. 1194) 462 at 496 -497 paras. H-A; to submit that the Court cannot input what is not contained in a law into it.

He further submitted that the High Court of Kwara State being a creation of the Constitution, it is only the Constitution that can oust its jurisdiction. He relied on: Gafar v. Government

of Kwara State (2007) 4 NWLR (Pt. 1024) 375 at 403; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 172; Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169 at 198. The learned senior counsel urged the Court to hold that the boundary law cannot curtail the jurisdiction of the Court as provided by Section 272 of the 1999 Constitution (As amended) which is equivalent to Section 236 of the 1979 Constitution.

On abuse of Court process, it was submitted for the Respondents that the issue is a fresh issue for which the Appellants required the leave of Court to raise. He cited: Onyemaizu v. Ojiako (2010) 4 NWLR (Pt. 1185) 504 at 525-526; Okoro v. Egbuo (2006) 6 SCNJ 258 at 268.

Furthermore, the learned senior counsel in the Respondents’ brief submitted that assuming without conceding that the issue of abuse of Court process was properly raised, the suits KWS/346/2010 which is the subject of the present appeal and KWS/354/2010 are not on the same subject matter and hence could not constitute an abuse of Court process. On what constitutes abuse of Court process, the learned Silk referred to the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at

188.

Finally it was argued for the Respondents that if for any reason the Court holds that there was an abuse of Court process by reason of multiplicity of actions, it is not the suit that gave rise to this appeal that will be so held because the said case was instituted before suit No. KWS/354/2010; before Hon. Justice Adewara of the High Court of Kwara State. He relied on:Minister of works and Housing v. Tomas (Nig.) Ltd. (2002) 2 NWLR (Pt. 752) 740.

Dr. Olatoke, SAN urged the Court to resolve the issue in favour of the Respondents.

RESOLUTION OF ISSUES 1 AND 2

The Appellants’ grouse is that by reason of the Respondents’ statement of claim at the

trial Court, paragraph 2 in particular; and Exhibit E, the suit subject of this appeal is a boundary dispute between Edu and Ifelodun Local Government Areas for which the trial Court had no jurisdiction to hear and determine by reason of the Kwara State Local Boundary Settlement Law CAP L7, 2006 – Section 11 (1). He cited several judicial authorities to contend that the learned trial Judge was wrong in his holdings at page 259 lines 18 – 21 of the record.

For ease of reading and understanding, I shall start by reproducing paragraph 33 of the statement of claim of the Respondents at pages 9-10 of the record. I shall also reproduce paragraph 2 of the statement of claim at page 4 of the record. I will follow this up by reproducing the relevant provisions of the Kwara State Local Boundary Settlement Law and the holding of the learned trial Judge at pages 259, lines 3 – 10; 18 – 19; to page 262 lines 1- 5 of the record.

Paragraph 2:

“The Defendants are Nupe farmers and reside at Kange, Share, Ifelodun Local Government Area within the jurisdiction of the Honourable Court

Paragraph 33:

Whereof the Claimants claim from the Defendants

jointly and/or severally as follows:

“(i) A declaration that the Claimants are the lawful and/or bona-fide owners of the piece of land known and called Onireke family land and all the appurtenances thereon lying, being and situate at Share, Ifelodun Local Government Area starting from Kange to OdoKasan boundary at Share Junction (Sakanke) with Elese compound, with Ajobo family at Igbodun, Sangoniyi family at Idi-Elu, with MomoduAnkoro family at Kasan stream as neighbours and that they are entitled to be issued and/or granted certificate of occupancy on the said piece of land.

(ii) A declaration that the Claimants are the persons in possession of the plots of land described above.

(iii) A declaration that the Defendants are customary tenants to the Claimants.

(iv) A declaration that refusal of the Defendants to pay their requisite tributes (Ishakole) as at when due to the Claimants despite persistent demand amount to automatic forfeiture of their tenancy under native law and custom.

(v) A declaration that continued entry and occupation of the Defendants, their agents and privies on the Claimants’ parcel of land having

deliberately failed to pay their tribute to the Claimants and without Claimants’ consent amount to trespass to land.

(vi) An order of this Honourable Court compelling the Defendants, their agents or any other person deriving authority from them to remove any offending and provocative building and/or structure that might have been erected on the land without Claimants’ consent from the Claimants’ land.

(vii) The sum of N2,500,000.00 (Two million Five hundred thousand naira) only as general damages for trespass on the claimants’ land.

(viii) An order of perpetual injunction restraining the Defendants, their agents, privies, relatives or anybody or person claiming title through them from erecting any further building and/or committing any act or further act of trespass on the claimants’ land or from dealing with the land in any manner adverse to the Claimants’ interest.

(ix) The cost of filing this suit.”

?Page 259 lines 3-10; 18-19 to page 262 lines 1-5; of the record:

“The Defendants in their statement of defence have raised issue of jurisdiction of the Court to entertain this suit on the ground that it is a boundary dispute

between Edu and Ifelodun Local Government Areas. I have painstakingly perused the pleadings and the evidence adduced by the parties including the Kwara State Gazette No. 15, vol. 44 of 23rd September, 2010 relied upon by the Defendants. There is no suggestion of boundary dispute from the evidence before me, the Court found contrary to the claim of the Defendants during inspection of the land in dispute that it falls within Ifelodun Local Government Area.

I am fortified in my view by Exhibit D4, a letter from the office of the Surveyor-General of Kwara State dated 13/1/2010 on the locations and positions of villages within the boundaries of both Edu and Ifelodun Local Government Areas. It is necessary to reproduce the letter hereunder:

13/1/2010

The chairman,

Edu Local government Area

Lafiagi.

The chairman

Ifelodun local Government Area

Share.

DETERMINATION OF THE LOCATIONS/POSITIONS OF SOME VILLAGES WITH RESPECT TO THE 1976 DESCRIPTION OF EDU AND IFELODUN LOCAL GOVERNMENT AREAS

You would recall that the Technical sub-committee of the Kwara State boundary committee visited your Local Government Area in

connection with the above subject matte (sic) on 5th August, 2009 and 25th August, 2009.

2. You will also recall that field work involving the State team, Local Government officials of Edu and Ifelodun representatives of Share and Tsaragi communities to some locations/places were undertaken on the two occasions.

3. I am directed to forward herewith the findings of the team on the locations of these places with respect to 1976 Descriptions of Edu and Ifelodun Local Government Area for your information and necessary action.

SIGNED

Surv. S.B. Afodun

Assistant Surveyor General

For: surveyor General

S/NO – Village/Places – N (Northing) – E (Easting) – LGA

1. Yikpata Old Bridge – 850′ 05.3″ – 505′ 53.7″ – Edu

2. Yikpata New Bridge – 849′ 41.2″ – 505′ 48.5″ – Edu

3. Kokona (Ogunola) – 850′ 23.2″ – 505′ 33.6″ – Edu

4. Beginning of Feweje – 849′ 09.4″ – 458′ 47.8″ – Edu

5. Middle of Feweje – 849′ 10.4″ – 459′ 04.1″ – Edu

6. Fengayawa – 848′ 58.1″ – 501′ 36.8″ – Edu

7. Agbana Hill – 849′ 20.1″ – 458′ 10.1″ – Edu

8. Kange – 849′ 00.0″ – 456′ 51.7″ – Ifelodun

9. Ankoro – 850′ 02.6″ – 453′ 31.5″ – Edu

10. Iyana Share Junction – 848′ 51.2″ – 456′ 26.0″ – Ifelodun

11. Katsan – 849′ 59.9″ – 453′ 37.3″ – Ifelodun

12. Eyeforogi – 853′ 18.8″ – 453′ 59.8″ – Ifelodun

13. Letswa – 853′ 35.1″ – 453′ 13.7″ – Ifelodun

14. Dada – 853′ 58.6″ – 452′ 04.1″ – Ifelodun

15. Kpengbe – 853′ 25.8″ – 452′ 04.1″ – Ifelodun

16. Arogunyo – 853′ 37.7″ – 453′ – Ifelodun

17. Boribo – 855′ 28.3″ – 453′ 16.0″ – Ifelodun

18. Ewani (Ruined) – 902′ 39.7″ – 453′ 17.8″ – Ifelodun

19. Eshan (Kochitoko) – 902′ 01.7″ – 452′ 48.9″ – Ifelodun

20. EshanKotako – 904′ 31.7″ – 453′ 53.0″ – Edu

SIGNED

Sur. S. B. Afodun

Assistant Surveyor General

For Surveyor General

?It is apparent that Kange village and other locations in the land in dispute were said to fall within Ifelodun Local Government in the above letter from the office of Surveyor-General of Kwara State to Edu Local Government and Ifelodun Local Government Areas. In view of the contents of Exhibit D4 and my earlier findings in this

judgment, I reject the defence of the Defendants.”

The trial Court found that from the pleadings, evidence before him and the Kwara State Gazette No. 15, vol. 44 of 23rd September, 2010 (Exhibit E), the suit was not a boundary dispute. He went on to state that from evidence during the inspection of the land in dispute and Exhibit D4 (Letter from the office of the Surveyor-General) of Kwara State dated 13/1/2010 that the Kange village and other locations in the land in dispute fall within Ifelodun Local Government Area. The learned counsel for the Appellant submitted that the above findings of the trial Court were borne out of the improper evaluation of Exhibits D4 and E.

Let me start from a non contentious premise. Both parties are in consensus that in determining the jurisdiction of the Court, it is solely the statement of claim of the Plaintiff that must be considered. See:Adetayo v. Ademola (2070) 15 NWLR (Pt. 1215) 169. Upon careful examination of the claim of the Respondents at paragraph 33 of the statement of claim, it is my opinion that the issue before the trial Court was not one of boundary dispute between Edu and Ifelodun Local

Government Areas but the issue of the rightful owner of the land in dispute. But this was not the basis of the Appellants’ stance that the suit subject of this appeal bordered on boundary dispute; rather it was paragraph 2 of the statement of claim that the Appellants laid emphasis on to contend that the suit was a boundary dispute. The reason for this contention is for the fact that in paragraph 2, the Respondents stated that Kange, Share is in Ifelodun Local Government Area while the Appellants in their statement of defence stated that Kange village is in Tsaragi District of Edu Local Government Area of Kwara State. Accordingly, based on Exhibit E, the Appellants maintained the stand that the suit was a boundary dispute.

Exhibit E is – Kwara State of Nigeria Gazette No. 15, Ilorin – 23rd September, 2010 Vol.44. Paragraph 4 of Exhibit E titled: Kwara State Notice No. 16 of 2010 – Final Settlement of Share/Tsaragi Boundary Dispute; the State Executive Council at its meeting of 30th June, 2010 approved the committees’ recommendation on the location of the villages inter alia: Iyana Share is in Ifelodun Local Government Area. Then, under supplement Part

E of the Gazette – Peace Preservation Law (CAP. P3), Kange village with its environs in Edu Local Government Area was declared a proclaimed district for the purpose of preservation of public peace in the area.

From the above it follows that the Government had settled boundary dispute if any between Ifelodun and Edu Local Government Areas as regards their communities, Share and Kange villages inclusive. The learned trial Judge was therefore right when he found that from the statement of claim and Exhibit E; he did not see anything that suggested boundary dispute. The fact that in paragraph 2 of the Respondents’ statement of claim, he stated “The defendants are Nupe farmers and reside at Kange, Share, Ifelodun Local Government Area…” does not in my opinion constitute a challenge of Exhibit E nor make the suit a boundary dispute. I do agree with the Respondents’ counsel that it is the Appellants that sought to surreptitiously through their statement of defence bring in the issue of inter local government boundary dispute into the case. The statement of defence of the Appellants cannot in law be relied upon to determine the jurisdiction of the trial

Court. It is the statement of claim of the Respondents that should be and was rightly relied upon by the trial Court to hold that it had jurisdiction to try the suit. See:Adetayo v. Ademola (supra).

Before I conclude on this and go unto the issue of abuse of the Court process I must state that the trial Court was wrong as rightly argued by the Appellants to rely on exhibit D4 instead of Exhibit E to conclude that Kange village was in Ifelodun Local Government Area. Since this will not change my conclusion, I will not get into details moreso since the issue before the trial Court was not which village was in Edu or Ifelodun Local Government Area but who owned the land in dispute.

Finally on this, I hold that in the circumstance as in this case; where a trial Court is faced with the challenge of determining its jurisdiction, what the Court needs to do which the trial Court rightly did is to look at the writ of summons and statement of claim and not at the statement of defence to see whether it has the jurisdiction to entertain the matter. A careful examination of the writ of summons and the statement of claim reveal that the suit does not raise

boundary dispute as contended by the Appellants. Accordingly, I hold that the trial Court was right to have ruled that it had jurisdiction to hear and determine the suit.

In the event that I am wrong in holding that the suit did not raise boundary dispute and in which case the Boundary Settlement Law will be applicable, Mr. Issa submitted ‘that by Section 5 of the Local Boundary Settlement Law CAP L7 Laws of Kwara State 2006, the Governor had the power to refer to a commission for the purpose of settling local boundary disputes. He further submitted that when by Exhibit E, such a commission had resolved that Kange village is in Edu Local Government Area of Kwara State; the trial Court had no jurisdiction to adjudicate on it again.

Mr. Issa did not state which part of the law neither am I aware of the part where the jurisdiction of the trial Court was ousted. The law merely stated that whatever the Boundary Commission decides is final. The trial Court is a creation of the Constitution and it is the same Constitution that confers jurisdiction on it that can take or oust its jurisdiction, not any other law or Statute. This was the position of the

Supreme Court in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 172 para. H-C per Ayoola, JSC; where it was held as follows:

“The coming into force of the 1979 Constitution had a considerable impact on the jurisdiction of the High Courts of the States. While prior to the Constitution there was no express vesting of the judicial powers in the judicature and the jurisdiction of the High Courts of the States was to be found in State legislation which tended to vary from State to State a change was affected by Section 236(1) of the 1979 Constitution which provided as follows:

“Subject to the provisions of the Constitution and in addition to such other jurisdiction as may be conferred upon it by law the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceeding in which the existence or non-existence of a legal right, power, duty, liability, privilege, interest, obligation, or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

The provision of Section

236(1) of the 1979 Constitution did not permit the ‘unlimited’ jurisdiction vested in the High Court of a State to be limited other than as the Constitution itself may have provided. That was said by this Court in the recent case of Okutale v. Awosanya (supra) in consonance with similar views expressed in Bronik Motor Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 and Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212. The answer to the question whether the jurisdiction of the High Court of a State is curtailed after the 1979 Constitution had come into effect is therefore not to be found in State legislation but solely in the Constitution itself.”

See also Adetayo v. Ademola (2010) is NWLR (Pt. 1215) 169.

It follows therefore and I agree with the Respondents’ learned senior counsel that the Kwara State Local Boundary Law cannot curtail the jurisdiction of the High Court as provided for by Section 272 of the 1999 Constitution (As amended) which is equivalent to Section 236 of the 1979 Constitution considered in the above referred case.

?The clear import of the

position of the law is that; laws such as the Kwara State Local Boundary Law only affords the body or Commission to which such disputes must be referred to in the first instance, an opportunity to resolve the dispute if it can before recourse is made to the Court of law. Put differently, such laws merely serve the purpose of preventing actual litigation in Court where it is possible and never to be treated as ousting the jurisdiction of the Court. See: Owoseni v. Fatoye (2005) 14 NWLR (Pt. 946) 719.

With such law as the Kwara State Local Boundary Settlement Law, it may have been different if the Administrative adjudication had not been resorted to before the Court case. By Exhibit E, it is well obvious that the Commission as the relevant administrative adjudication had been engaged before the exercise of the jurisdiction by the law Court. This means that the procedural steps prescribed by the Boundary Settlement Law to resolve boundary disputes prior to embarking on actual litigation had been satisfied before the suit subject of this appeal in which case the trial Court had jurisdiction to try the suit even when held it was a boundary dispute. I am

therefore of the humble view that to translate and interpret Section 11 of the Boundary Law which says the decision of the Boundary Commission is final to oust the jurisdiction of the High Court would amount to putting the said Section of the law up and against Sections 6 and 272 of the 1999 Constitution of the Federal Republic of Nigeria (As amended).

Standing on a more firm ground in my opinion that the Local Boundary Law of Kwara State did not oust the jurisdiction of the High Court is my leaning on the apex Court’s decision in A.G. Rivers State v. A.G. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 at 155 paras B-C, where

Galadima (JSC); considering the provisions of the National Boundary Commission Act, CAP N10, LFN, 2004 opined as follows:

“I have set out the functions of the NBC above and from the provision of the NBC Act, it cannot be seriously suggested that before jurisdiction of this Court is invoked in a boundary dispute between States, the NBC should have determined the dispute or completed its exercise in delineating the disputed boundary.”

The above decision of the Supreme Court has laid to rest every controversy and firmed the fact that Courts of law have jurisdiction on matters subject of boundary disputes.

and obtained. Where an Appellant fails to first seek and obtain leave of Court before raising fresh point, both the issue so raised for determination and the ground of appeal from where it was distilled would be incompetent. See: Ojiogu v. Ojiogu (2010) 9 NWLR (Pt. 1198) 1; Onyemaizu v. Ojiako (2010) 4 NWLR (Pt. 1185) 504.

In the instant appeal the issue of abuse of Court process was neither canvassed nor pronounced upon by the trial Court in the judgment appealed against. Equally there is no ground in the grounds of appeal relating to the issue of abuse of Court process. In essence, the issue of the abuse of Court process was neither pronounced upon by the trial Court nor tied to any ground of appeal in which case the issue of the abuse of Court process was not validly raised in this Court. Said issue is incompetent and accordingly struck

out.

It is for all that I have said above that I hold that the learned trial Judge was right when he assumed jurisdiction to entertain the suit subject of this appeal. I resolve the issues in favour of the Respondents.

ISSUE 3

“Whether the learned trial Judge was right in holding that the Appellants are customary tenants, when there is no evidence of payment of tributes by the Appellants to the Respondents.”

Mr. Issa learned counsel for the Appellants argued that there is no credible evidence of payment of tributes by the Appellants directly to the Respondents. He referred to the Respondents’ reply to the Appellants’ statement of defence at pages 77-79 of the record especially paragraph 3; the finding of the learned trial Judge at page 255, lines 13-15 of the record. The learned counsel submitted that tributes as a major feature of customary tenancy cannot be paid by the tenant to the landlord through a third party. He cited: Dashai & 3 Ors. v. Satlong & Anor. (2009) 2 S.C. (Pt. 11) 1 at 18-19.

The Appellants’ Counsel re-emphasized the importance of Exhibits D4 and E being documentary evidence as opposed to oral

evidence. He submitted that where and since the oral evidence of the Respondents contradict the referred documents; the Court should reject the oral evidence. He relied on: Ukeje & Anor. v. Ukeje & Anor. (2014) 4 S.C. (Pt. 1) 1 at 22.

Mr. Issa urged the Court to resolve the issue in favour of the Appellants.

Dr. Olatoke, SAN in the Respondents’ brief submitted that based on both oral and documentary evidence placed before the trial Court, the learned trial Judge was right when he held that the Appellants are customary tenants to the Respondents. He invited the Court to rely on Exhibit B (VCD) which was played in open Court; and wherein the 4th Appellant admitted to be the Respondents’ tenant; and made reference is to how 1st ? 3rd Appellants along with him, had previously been paying tributes to the Respondents before they stopped. The learned senior counsel noted that the 1st-3rd Appellants did not controvert nor cross examine on the Exhibit meaning they accepted the truth of said evidence. He cited: Eresia-Eke v. Orikoba (2010) 3 NWLR (Pt. 1197) 421 at 448. The learned senior counsel also referred to Exhibit C series as evidence

of the fact that the Appellants are the Respondents’ customary tenants. He remarked that Exhibit C series were tendered without objection and as such are binding on the Appellants. He cited: Bello v. The State (2010) 12 (Pt. 2) SCM 28 at 39.

As for oral evidence, the learned senior counsel referred to the evidence of the 2nd Appellant (DW1) under cross examination as a pointer that the Appellants are the Respondents’ customary tenants. He reproduced excerpts of DW1’s answers to cross examination questions at pages 191-192 of the record.

Dr. Olatoke, SAN contended that since the sole witness of the Appellants disassociated himself from his statement on Oath, it follows that there was no evidence from the Appellants to show how the land evolved on them in which case the judgment was bound to be and rightly against them. He relied on: Amadi v. Ije Amadi (2003) 16 NWLR (Pt. 845) 32.

He referred to the case of Dashai & 3 Ors. v. Satlong (supra) relied heavily upon by the Appellants to submit that same is not applicable to this case and set out distinguishing factors between the instant case and Dashai v. Satlong (supra). See paras.

5.09-5.10 at pages 28-29 of the Respondents’ brief.

He concluded by urging the Court to discountenance the submissions of Appellants’ counsel on Exhibits D4 and E as the oral evidence before the Court did not contradict the referred documents. He then urged the Court to resolve the issue in favour of the Respondents.

Customary tenancy ensues when there is a transfer of an interest in land from a customary landlord or overlord to a customary tenant. Such transfer of interest entitles the customary tenant to exclusive possession of the land. The land so transferred is held by the customary tenant in perpetuity but subject to good behavior such as: the obligation not to;

(a) deny or challenge the overlord’s title;

(b) alienate part or all of the interest in the land without the consent of the customary landlord.

(d) the obligation to pay customary tribute or rent.

See: Damulak Dashi & Ors v. Stephen Satlong & Anor. (2009) 1-2 SC 5; (2009) 5 NWLR (Pt. 1134) 281; Attaboh Idih v. Dr. Aliyu Ocheja Obaje (The

Attah of Igala) & Anor. (2010) LPELR-381 (CA); Mitini Nyavwaro & Ors v. Babiya Ogedede (1971) NSCC 206; Makinde v. Akinwale (2000) 1 SC. 89.

Although the payment of tribute or rent is an essential feature of customary tenancy, however the non-payment or absence of rent or tribute is not inconsistent with the existence of customary tenancy. See: Alade v. Aborishade (1960) 5 F.S.C. 167; Dashi v. Satlong (supra). The reasons which abide common sense are that: the payment of tribute or rent may clearly be excluded in the transfer of interest to a customary tenant; or the presence of a substantial reason which does not on itself challenge the title of the overlord but for which a customary tenant may not pay rent. See: Alade v. Aborishade (1960) 5 F.S.C. 167; Dashi

v. Satlong (supra).

Tabai, JSC (retired) in Dashi v. Satlong held that “it is not an incident of customary tenancy that tributes can be paid by customary tenant to the landlord through a third party.” The Appellants herein have relied on this to urge the Court to hold that since it is in evidence that tribute from the Appellants was paid to the Respondents through PW7 one Alhaji Gbadamosi, it means there was no proof of customary tenancy. The Respondents’ learned senior counsel at pages 28-29 para 5.09 distinguished the case of Dashi V. Satlong (supra) from the present appeal and submitted that Dashi case was not applicable to the instant appeal.

to the developing society in regulating the lives and transactions of the indigenous people of the area it applies. Thus customary law is a question of fact to be proved by evidence; or judicial notice if it has been established as required. See Sections 16, 17 and 13 of the Evidence Act. See also: Ogolo & Ors v. Ogolo & Ors. (2003) 12 S.C. (Pt. 1) 56; (2003) 18 NWLR (Pt. 852) 494.

In the instant appeal, from the Appellants’ brief at pages 14 ? 15 paragraph 7.0.1; the challenge is not on the fact that the Appellants paid Ishakole (tribute) in respect of the land in dispute to the Respondents but the grouse is that since paying tribute through a third party is not an incident of customary tenancy, any such payment of Ishakole through the PW7 is not a proof of customary tenancy. In the case of Dashi v. Satlong (supra), where the Supreme Court held that it is not an incident of customary tenancy that tributes can be paid by a customary tenant to the landlord through a third party; the apex Court considered the evidence of customary land tenure of the area before coming to the decision relied upon by the Appellants. The apex Court in Dashi v.

Satlong (supra) noted that the evidence of the Plaintiffs/Appellants was reasonably consistent to the fact that the Defendants/Respondents paid tributes to them through the Ward Head. This was categorically denied by the Respondents who gave evidence of the customary land tenure of that area to the effect that a customary tenant pays his tributes directly to the customary landlord and in that case, tributes paid to the Ward Head was because he was the custodian of all the land within their area. The apex Court found this evidence more credible as the custom of the area; that a customary tenant pays his tributes direct to the customary overlord and not through a third party. The apex Court also noted that the evidence of PW6 who maintained that the Respondents paid their tributes to the Appellants (owners of the land) through him was inconsistent with the evidence of the Appellants who testified that the Respondents and their fathers paid tributes to them directly. Based on the foregoing the apex Court held that the alleged customary tenancy and the payment of customary tributes was not proved with credible evidence and then arrived at its conclusion that it is

not an incident of customary tenancy of the area that tributes can be paid by customary tenant to the landlord through a third party.

In the instant appeal the PW9 (1st Respondent) at paragraph 4 of his further statement on oath at page 80 of the record, which he adopted on 22nd December, 2011, stated that it was the PW7, one Alhaji Gbadamosi Amoo who had been collecting the tribute from the Appellants for onward delivery to the Respondents. He added that it was the said Alhaji Amoo that brought the 4th Appellant when he came to ask the Respondents for land to cultivate rice. He referred to eight letters he mentioned at paragraph 22 of his statement on oath of 9th December, 2011 which letters were admitted without objection and marked Exhibits C to C7 respectively. Exhibits C to C7 are demand letters and reminder notices served on 1st, 2nd and 3rd Appellants for them to pay the outstanding tributes on their land which they were customary tenants. PW9 said they did not serve Ndagbon the 4th Appellant with a demand letter or reminder notice because he came with the PW7 to plead. Also is Exhibit B (VCD) which was admitted and played in the open Court

without objection. DW1 (2nd Appellant) under cross examination admitted that in Exhibit B, the 4th Appellant was pleading with the 1st Respondent (PW9) not to send him out of the land in dispute and pledged to be paying Ishakole (tribute) for using the land. In Exhibit B, the 4th Appellant disclosed the past transactions between the Appellants and the Respondents in relation to the land in dispute. He expressly therein stated how the Appellants had been paying their tributes to the Respondents’ family until they stopped without cause.

?It is interesting to note that neither the tendering of Exhibit B nor Exhibits C to C7 was objected to by the Appellants’ counsel. Also the content of Exhibit B (VCD) watched in open Court wherein the 4th Appellant made reference to 1st, 2nd and 3rd Appellants and how all of them had been paying tribute to the Respondents was not challenged, neither did they cross examine on said Exhibit B. This was equally so with the Exhibit C series. The law is clear, where as in this case a party fails to cross examine a witness in respect of any part of his evidence, the party which failed to so cross examine is deemed to have

admitted and accepted the truth of the said evidence. See: Nnamdi v. Nwosu (1992) 5 NWLR (Pt. 241) 273; Eresia-Eke v. Orikoha (2010) 8 NWLR (Pt. 1197) 421. The Appellants in law are deemed to have admitted the truth of Exhibit B and Exhibit C series. It follows therefore for me to hold in the circumstance, that the Appellants’ failure to cross examine the Respondents’ on Exhibits B and C series amounts to admission of the truth of the contents of Exhibits B and C series. In other order words, it means the Appellants admitted the truth that they were paying tribute to the Respondents for the use of the land in dispute until they stopped without cause. Equally, the Appellants whose counsel stood by and allowed Exhibits B and C series to be admitted without expostulation, shows that he had nothing to worry about the demand letters to the Appellants to pay their outstanding tributes to the Respondents, for the use of the land in dispute. He was equally comfortable with the pleading of the 4th Appellant to be allowed to continue to use the land in dispute by the Respondents and the pledge that he will continue to pay them tributes. Again is that the Appellants’

counsel had no complaint about the 4th Appellant’s statement that even the 1st, 2nd and 3rd Appellants had previously been paying tribute to the Respondents for the use of the land in dispute. To this extent therefore it means the Appellants cannot complain about the import of the contents of Exhibits B and C to C7 same having been deemed admitted and binding on them. See:Bello v. The State (2010) 12 (Pt. 2) SCM 28.

From the evidence as shown on record therefore, the decision of the apex Court in Dashi & 3 Ors. v. Satlong (supra) is clearly distinguishable from the appeal at hand. In Dashi case the owners of the land led contrary evidence to that of the intermediary who alleged he collected the tributes on their behalf as the owners maintained in their evidence that they personally collected their tributes. But in the instant case, the evidence of the Respondents and that of the intermediary PW7 have consonant note that the Appellants paid the tributes to PW7 for onward delivery to the Respondents. Again the fact that an intermediary was collecting the tributes on behalf of the alleged owners of the land in Dashi’s case (supra) was categorically

challenged but not so in the present appeal. The fact that PW7 was the one collecting the Ishakole on behalf of the Respondents was not in any way challenged. Neither PW7 nor PW9 was cross-examined on this issue. Infact, the Appellants in this appeal did not put forth any evidence before the trial Court in that the 2nd Appellant their only witness who testified as DW1 under cross examination disassociated himself from his statement on oath when he said “I don’t know the content of the statement on Oath. I only signed it” see: last paragraph of page 191 of the record. This statement in my opinion destroyed the evidence of DW1. Accordingly, it follows that the evidence of the Respondents on the customary tenancy was not challenged by the Appellants unlike in the case of Dashi v. Satlong (supra). Still on the distinguishing factors; in Dashi’s case, evidence was adduced by the parties in proof of customary tenancy tenure of the area, the apex Court amongst the competing evidence found the evidence of the Appellants that in their custom, tributes are paid directly to the customary overlord by a customary tenant more credible and so relied on it to arrive at its

decision. In the instant case from whatever viewpoint, the Appellant did not in any way place evidence before the Court of any custom that makes tributes from customary tenants to be paid in a particular manner. Starting with the fact that the only witness of the Appellants, DW1 denied his statement on oath; the Appellants did not call any witness to testify neither did they through cross examination put forth evidence to establish the custom of their area that could debunk the overwhelming evidence of the Respondents on how the land in dispute evolved on them, evidence of PW9 and PW7 on how PW7 as intermediary had been collecting Ishakole on behalf of the Respondents; and the documentary evidence of exhibits B and C to C7.

From the facts and circumstances of the appeal at hand, I do agree with learned senior counsel for the Respondents that the case of Dashi v. Satlong (supra) is distinguishable from the present appeal. Let me note strongly that customary law is not fixed and not same all over Nigeria; it is a mirror of the firmly established and generally accepted practice of a given indigenous people; it is a question of fact to be proved by evidence

as same is not of general application. Fundamentally in the case of Dashi (supra) is the fact that the Supreme Court held that the Appellants’ evidence of the customary tenure in their area was more credible than that of the Respondents who claimed they received customary tributes from the Appellants in a manner that the Supreme Court held was not the custom of the area. The apex Court did not express opinion of general custom or right in Dashi’s case. Its decision was based on the custom proved to exist by evidence. See: Sections 16 and 73 of the Evidence Act. In the case at hand; the burden of proof that by custom, the fact that the Appellants were paying Ishakole to the Respondents through Pw7 established the fact that there was no customary tenancy, was on the Appellants by virtue of Section 16 of the Evidence Act. The trial Court in the instant case relied on the evidence of Pw7, Pw9 and Exhibits B and C to C7 to arrive at the conclusion that the Appellants are customary tenants to the Respondents. I find good reasoning in this decision since I am already in tune with the fact that there was neither contrary evidence by the Appellants nor a challenge of

the evidence placed before the trial Court. The trial Court would not have without relevant facts and evidence followed the decision in Dashi’s case (supra). In essence, it is my view that the facts and circumstances in the case of Dashi (supra) is different from the present case and as such Dashi case (supra) is not relevant to this case and not applicable.

In sum, I hold that the learned trial Judge was right to hold that Appellants are customary tenants to the Respondents. Issue 3 is resolved in favour of the Respondents.

From the foregoing, the Appeal fails for lacking in merit and is hereby dismissed. I uphold the decision of the High Court of Kwara State delivered on 9th October, 2013. I award a cost of N100,000.00 (One hundred thousand naira) in favour of the Respondents.

MOHAMMED LADAN TSAMIYA, J.C.A.: I have had the advantage of reading before now the draft of the lead Judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. And I am in full agreement with the reasoning and conclusion reached for dismissing the Appeal. It is also dismissed by me with N100,000.00 as costs in favour

of the Respondents.

HUSSEIN MUKHTAR, J.C.A.: I have had the pleasure of reading in draft the judgment just rendered by my learned brother, Uchechukwu Onyemenam, J.C.A, and I agree entirely with the views expressed therein and the conclusion that the appeal is completely lacking in merit.

For the comprehensive reasons given in the lead judgment, the appeal ought to be and is hereby dismissed. I subscribe to all the consequential orders made in the judgment inclusive of the one as to costs.

Appearances

Manzuma Issa with him, A. O. Temim (Mrs.), Z. O. Alhassan and A. D. BasseyFor Appellant

AND

O. W. Akanbi with him, E. O. Edjeba (Miss)For Respondent