CHIEF BONIFACE U. USMAN & ANOR v. CHIEF SALIFU ANYEBE & ORS
(2018)LCN/12320(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of December, 2018
CA/A/703/2013
RATIO
CUSTOMARY LAW: ON WHO IS QUALIFIED TO ASCEND TRADITIONAL THRONE
“It is the law that the issue of who is qualified to ascend any traditional throne or stool is subject to the customary law and traditions of the people concerned and that customary law is a question of fact to be proved by calling evidence unless frequent proof of same has made the customary law to attain the legal status of notoriety thereby rendering same judicially noticeable. Evidence therefore that would uphold a case of traditional history must in the first place be in accordance with the pleadings and it must be credible and reliable. See OLANREWAJU VS. OYESOMI & ORS (2014) 15 NWLR (PT. 1318) 258; AKINLOYE VS. EYIYOLA (1965) NWLR 92; ELIAS Vs. OMO-BARE (1982) 5 SC 25; MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (PT. 7) 393.” PER MOHAMMED BABA IDRIS, J.C.A.
CUSTOMARY LAW: WHO COLLECTS ROYALTIES ON LAND
“From the record, and from the testimonies of witnesses called by both the 1st Appellant and 1st Respondent, it is clear that the bone of contention had always been who collects royalties and tributes from cultivating the Lands and harvesting the economic trees. There is therefore no form of conflict in the traditional control the 1st Respondent exercised over Bagana and the surrounding villages and the Land Use Act; as the Land Use Act itself recognizes that any time land acquisition is to be undertaken, compensation will be paid in respect of crops and economic trees that are found on the Land. There is no doubt that in contradistinction to the argument of the appellant, the Land Use Act is not averse to but does recognize that traditional rulers exercise some form of control in local communities where the issue of land is concerned. See Section 29 of the Land Use Act and the case of AMALE VS. SOKOTO LOCAL GOVERNMENT [2012] 5 NWLR (PT. 1293) 201.” PER MOHAMMED BABA IDRIS, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“It is settled law that a trial judge who has the first-hand contact with the trial and the hearing of the witnesses called by the parties, has the primary duty of evaluating evidence and properly appraise it. Once the trial judge effectively carried out this duty, and arrive at findings which are not perverse, the appellate Court has no business disturbing the findings of the trial Court. See the cases of Mkpinang v. Ndem (2013) 4 NWLR (Pt. 1344) 302, Dr. Soga Ogundalu v. Chief A.E.O. MacJob (2015) LPELR 24458 (SC); Agbabiaka v. Saibu & Ors (1998) 10 NWLR (Pt. 571) 534.” PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. CHIEF BONIFACE U. USMAN
(Chairman, Omala Local Govt. Traditional Council)
2. ALHAJI ALI HARUNA
(District Head of Bagana) – Appellant(s)
AND
1. CHIEF SALIFU ANYEBE
(Onu Otutubatu of Bagana)
2. HON. COMMISSIONER
(Ministry of Local Government and Chieftaincy Affairs Kogi State)
3. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE OF KOGI STATE – Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Kogi State High Court holden at Ankpa and delivered by Hon. Justice A. N. Awulu, which upheld the claim of the 1st Respondent.
The Appellants being dissatisfied with the said judgment have appealed to this Court vide Notice of Appeal that contains four (4) grounds of appeal. The Notice of appeal is contained on pages 482 ? 486 of the record.
The brief facts of this case are that the 1st Respondent had approached the High Court of Justice AnkpaKogi State vide a Writ of Summons dated 3rd November, 2009 wherein he sought a declaration that going by the existing Igala Native law and custom, he as OnuOtutubatu of Omagede, a title he traced back to his forefathers, is the traditional owner of Bagana, Obakume I, Obakume II, AjomakojiOdumokpo I and II, etc., areas from which he collects and pay royalties and tributes to Attahlgala.
He further claimed that the creation by the 1st Appellant of the title of OgaOnu – Ife and the appointment of 2nd Appellant to occupy that position without authorization of the Attah lgala is an attempt to interfere with his traditional right over Bagana, Otutubatu – Omagede and Obakume, etc; which are his traditional lands; among other reliefs. See page 17 of the record for the claims as endorsed on the writ of summons dated 30 November 2009.
The 1st Respondent called six (6) witnesses PW1, PW2, PW3, PW4, PW5, and PW6 and tendered Exhs. P1, P2, P3, P4,P5, P9, P10, P11 and P12 through the witnesses in proof of his claim.
The 1st Appellant on the other hand disputed the claim as put forward by the 1st Respondent, rather asserting that the title of Onu Otutubatu was confined to the traditional role of guarding the tomb of later Attah Abutu Ejeh in the Emagede and performing some rituals around the burial ground. The 1st appellant further contended before the Lower Court that the title of Onu Otutubatu does not exercise control over the entire Bagana and the surrounding villages as claimed by the 1st Respondent.
The 1st Appellant had claimed that he was within his right to have delegated and coded part of his domain to the 2nd appellant; who was to exercise traditional control over Bagana, collect tributes and royalties on his behalf and by extension, on behalf of the Attah of Igala. The 1st respondent called 6 witnesses including himself and tendered 12 Exhibits in proof of his claim but 3 were rejected (Exhs. P6, P7 and P8).
At the end of trial, the lower Court found for the 1st Respondent. The Appellant being dissatisfied with the judgment of the lower Court brought this appeal vide notice of appeal containing four (4) grounds of appeal. See pages 482 ? 486 of the record for the Notice of appeal.
The Appellants filed their brief on the 31st Day of August 2016. The 1st Respondent filed his brief on the 9th day of April 2018, and the 2nd and 3rd Respondents filed their brief on the 16th of March 2018. At the hearing of the appeal, learned Counsel for the parties adopted their respective written briefs.
The Appellant formulated three (3) issues for determination as follows:-
1. Whether the trial Court was right in declaring that by existing Igala Native Law and Custom, the 1st Respondent is the traditional owner of Lands in Bagana, while control and management of Land in Urban and non Urban areas vests in the State Governors and Local Government respectively with the coming into for use of the Land Use Act. (Ground 1).
2. Whether the trial Court was right in its finding that the late Attah lgala, Alhaji Aliu Obaje had testified that Bagana was within the jurisdiction of Onu Otutubatu and placing probative value on Exhibit P11 despite the controversial circumstance under which it was made. (Ground 2).
3. Whether the Court was right in ascribing “high probative value” to the testimonies of the 1st Respondent’s witnesses whose evidences clearly showed that their ancestors were all migrants to Bagana town and were not natives of Igala land and relying on Exhibits P1, P2, and P3, which relate to individual disputes on land and ownership of trees and fish ponds in Ogbagana, in coming to the conclusion that Bagana is under the chiefdom of the 1st Respondent. (Grounds 3 and 4).
Learned Counsel for the Appellants argued that the 1st Respondent did not lead any evidence to establish any of the ingredients required by law to be proved for a declaration of customary title to be made in his favour, and that there was no evidence of traditional history, long professional and/or designated boundaries of the said land to establish customary title over the said lands.
It was further argued that the finding of the learned trial judge that the late Attah lgala, Alhaji Aliu Obaje has testified that Bagana was within the jurisdiction of Onu Otutubatu and that his placing probative value on exhibit P11 despite the controversial circumstance under which it was made was faulty and against the weight of evidence on the record.
It was contended that the learned trial judge should not have ascribed light probative value to the testimonies of the witnesses for the 1st Respondent because evidence showed that their ancestors were all migrants to Bagana Town and that they were not natives of Igala Land. It was further contended that the Counter claim was established in the light of the unchallenged evidence of the 1st Appellant.
The Court was urged to allow the appeal and set aside judgment of the trial Court. These authorities were relied on:-
1. ADELEKAN Vs. ECU LINE V. (2006) 12 NWLR (Pt. 993) 33
2. SOLUMADE Vs. KUTI (2006) 2 NWLR (Pt. 965), 558
3. ASIMU ISIAKA & 5 ORS Vs. OGUNDIMU & 16 ORS (2006) 13 NWLR (Pt. 997) 401 at 411-412 paragraphs G-B.
4. MINISTER P.M.R Vs. E.L (NIG.) LTD. (2010) 12 NWLR (Pt. 1208) 261
5. WILLIAMS Vs. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (Pt. 19) 1
6. SBN NIG. PLC Vs. ABDULLAHI (1996) 4 NWLR (Pt. 443) 460.
In the 1st Respondents brief, these issues were formulated for the determination of the Court:-
1. Whether the Lower Court was right in holding that by the existing and established native law and custom, the 1st Respondent is the traditional owner of the Lands in Bagana despite the provisions of the Land Use Act, 1978. (Ground 1 of the Notice of Appeal).
2. Whether the Lower Court was in order in placing reliance on the Attah lgala’s evidence contained in Exhibit P11 thereby attaching more probative value to Exhibit D5. (Ground 2 of the Notice of Appeal).
3. Whether placing the case of the parties on an imaginary scale of justice, that of the 1st Respondent weighs heavier or higher than that of the 1st – 2nd Appellant (1st and 3rd Defendants). (Grounds 3 and 4 of the Notice of Appeal).
It was argued that the 1st Respondent have by the existing and established native law and custom proved on balance of probabilities that he (1st Respondent) is the traditional owner of the lands of Bagana, Omagede or Emagede-Otutubatu and all the villages connected thereto, and that the lower Court was in order in attaching more probative value to Exhibits P11 more than Exhibits D5 to the extent that Exhibits D5 having been withdrawn was no longer in existence and cannot be reckoned with legally.
It was contended that placing the case of the parties on an imaginary scale of justice, the case of the 1st Respondent and his witnesses weighs higher in all ramifications by the probative value of the evidence than that of the 1st & 2nd Appellants.
The 1st and 2nd Appellants (1st and 3rd Defendants) failed woefully to establish or prove their Counter-Claim on balance of probabilities, and that the Defendant to the Counter-claim proved his case against the Counter-claim by credible oral and documentary evidences that the evidence tilts higher in favour of the Defendant to the Counter-claim.
The Court was urged to dismiss the appeal. These authorities were relied on:-
A. STATUTES
1. Land Use Act, 1978
2. Evidence Act, 2011
3. Court of Appeal Rules, 2016
B. DECIDED CASES
1.Ogualaji Vs. Attorney-General of Rivers State & Anor (1997) 5 SCM 240
2.Salami Vs. Oke (1987) 4 NWLR (Pt. 63) 1
3.Abioye Vs. Yakubu (1991) 5 NWLR (Pt. 190) 130
4.Joshua Ogunleye Vs. Babatayo Oni (1990) 4 SCNJ 60
5.Ajilo Vs. Savanna Bank (1989) 1 SCJJ 169
6.Gwar Vs. Adole (2003) FWLR (Pt. 176) 747
7.Nkwocha Vs. Governor, Anambra State (1984) 6 SC 362
8. Idundun Vs. Okumagba (1976) 9 ? 10 SC 227
9.Nwokorobia Vs. Nwogu (2009) ALL FWLR (Pt. 4766) 1868
10. Achonu Vs. Okuwobi (2017) 14 NWLR (Pt. 1584) 142
11. Sogunro Vs. Yeku (2017) 9 NWLR (Pt. 1570) 290
12. Saleh Vs. Abah (2017) 12 NWLR (Pt. 1578) 100
13. Mogaji Vs. Odofin (1978) 4 SC 91
14. Ejiboh Vs. Abia (2012) 16 NWLR (Pt.) 51
C. BOOKS/ARTICLES
1. Professor Yakubu M.G Land Law in Nigeria.
2. Professor A. Okoh Alubo Contemporary Nigerian Land Law 2nd Edition, pp. 97-102
3. Professor Gasiokwu M.U. “Ownership of Land in Nigeria (An Analysis of Section 1 of the Land Use Act, 4 UJLJ (1991-94)161
The 2nd and 3rd Respondents formulated these issues for the determination of the Court:-
1. Whether the Claimant/1st Respondent led credible evidence to prove its case to have justified the verdict of the lower Court (Grounds 1, 3 and 4).
2. Whether there are contradictions in the evidence led by the 1st Respondent to have cast any doubt on his case (Ground 2).
It was argued that the 1st Appellant who alleged before the trial Court that he had the right and authority to cede land and appoint the 2nd Appellant as the Oga Onu-Ife thereby whittling down the sphere of authority of the 1st respondent could not give coherent tradition history as to how he came by such authority.
It was further argued that the three (3) witnesses who testified on behalf of the 1st Appellant at the lower Court, gave incoherent and contradictory evidence of tradition history as to how the 1st appellant came to exercise the powers the 1st appellant claimed he possess, and that the 1st Respondent on the other hand has led credible evidence by giving a chronological and genealogical history as to how he came to exercise his sphere of authority over Bagana and surrounding villages.
It was submitted that there is no conflict between the judgment of the lower Court and the Land Use Act, as what is in contention in this appeal is the traditional control over land.
The Court was urged to dismiss the appeal. These authorities were relied on:-
1. Eze & Ors V. Atasie & Ors (2000) 10 NWLR (Part. 676) 470.
2. Olarenwaju V. Oyesomi & Ors (2014) 15 NWLR, (Part. 1318) P. 258.
3. Yusuf V. Adegoke & Anor (2007) 4 SC (Part 1) P. 126.
4. Okuleye V. Adesanya (2014) 12 NWLR (Part. 1422) P. 521
5. Amodu Tijani V. Secretary, Southern Nigeria (1921) 2 ALL NLR 399 @ 404.
6. Ezeafulukwe V. John Holt Ltd (1996) 2 NWLR (Part 432)P. 511.
LIST OF STATUTES.
1. The Land Use Act 1978
LIST OF BOOKS
1. A. Okoh Alubo, Ph.D: “Contemporary Nigerian Land Law”
I have read the briefs filed by the parties herein, the issues distilled by the Learned Counsel for the 2nd and 3rd Respondents succinctly captures the essence of the complain or challenges mounted by the Appellants against the decision of the trial Court. I shall adopt these issues for the determination of this appeal. The issues are as follows:
1. Whether the Claimant/1st Respondent led credible evidence to prove its case to have justified the verdict of the lower Court (Grounds 1, 3 and 4).
2. Whether there are contradictions in the evidence led by the 1st Respondent to have cast any doubt on his case (Ground 2).
ISSUE ONE
As in all civil litigation Land matters, the initial burden of proof depending on the state of the pleadings rests on a Plaintiff who will fail is he adduces no evidence. See ELEGUSHI Vs. OSENI (2005) 14 NWLR (Pt. 945) 348.
Where the boundaries and size of land are in dispute, the onus is on the Plaintiff to prove with certainty the definitive boundaries of the Land. See OKOKO Vs. DAKOLO (2006) ALL FWLR (Pt. 336) 201; AREMU Vs. ADETORO (2007) ALL FWLR (Pt. 388) 985; OGEDENGBE Vs. BALOGUN (2007) ALL FWLR (Pt. 366) 615; OGUNYOMI Vs. OGUNDIPE (2011) ALL FWLR (Pt. 594) 188; ONU Vs. AGU (1996) 5 NWLR (Pt. 451) 652.
Where from the pleadings issues have not been joined on the identity of the Land, the plaintiff has a very light burden. See AYUYA Vs. YONRIN (2011) ALL FWLR (Pt. 583) 1842; AREMU Vs. ADETORO (2007) ALL FWLR (PT. 388) 985; ABEGBE Vs. KOBIOWU (2012) ALL FWLR (Pt. 628) 887.
It is important I state that where parties by their pleadings know the boundaries of the Land in dispute, as in this case, there is clearly no need for a trial Judge to make any finding of fact on the boundaries of the Land. See MOTANYA Vs. ELINWA (1994) 7 NWLR (Pt. 356) 252.
The 1st Respondent called six (6) witnesses PW1, PW2, PW3, PW4, PW5 and he testified as PW6.
In his witness statement on Oath dated 31st January 2011, the PW1 had testified to the effect that, the 1st Respondent ascended the throne of his forefathers and that the 1st Respondent controls the whole Bagana and collect taxes and tributes from the people of Bagana. See pages 223-224 of the record for the witness statement of oath of Zekeri Abdulkadir.
PW2 testified to the effect that he knew Obuje Adiku the 1st Respondent’s predecessor, who reigned for about 52 years. He testified that the 1st Respondent is the traditional owner of Bagana, Ajachagba, Omagede, Ogakpo, Egumale and Abuja Otutubatu and that tributes and royalties were usually paid to him as the traditional owner of entire Bagana. He further testified to the further to the effect that the 1st Respondent inherited his throne from the first Attah Igala, Abutu Eje. He debunked the claim that the title of Onu Otutubatu is confined to guarding the tomb of Abutu Eje.
In his witness statement on the Oath dated 14th January 2011, the PW2 testified to the fact that he and the 1st Respondent are Igalas and also descendents of the first Attah lgala, Abutu Eje. See pages 141 ? 143 of the record for the witness statement on oath of Yusufu Elaigwu.
In his witness statement on Oath dated 14th January 2011, PW3 testified to the fact that he is of Igala stock and that Obuje Adikwu had reigned as the Onu Otutubatu before the ascension of the 1st respondent, a descendent of Obuje Adikwu. He testified to the fact that the Chieftaincy of Onu Ife does not cover both Bagana and Ife. See pages 138 ? 140 of the record for the witness statement of oath of Joseph Adanu.
PW4 in his witness statement of oath dated 13th November 2012 testified that he is the grandson of Obuje Adikwe the late Onu Otutubatu whom the 1st Respondent succeeded and he is therefore of Igala stock. He tendered Court judgments and record of committee proceedings (Exhibit P1, P2, P3, and P4). The Exhibits all points to act of ownership and control over Bagana and surrounding villages by the predecessors of the 1st Respondent. See pages 278-280 of the record for the witness statement on oath of Alidu Ibrahim.
PW5 Joshau Adah in his witness statement on Oath dated 13th November, 2012 testified that it was during the reign of Obuje Adikwu that the building of the palace of Onu Otutubatu commenced at Bagana in 1978 and not during the reign of the 1st Respondent. He testified that the 1st Respondent’s predecessor won cases in Court attesting to his control of Bagana and that it is the 1st Respondents predecessor that allocated land in Bagana to United African Company (UAC) and other settlers in Bagana. That the 1st Respondent collects tributes and royalties from the people of Bagana and Settlers in Bagana. See pages 274-277 for the witness statement on oath of Joshua Adah and pages 413-415 of the record.
PW6 (the 1st Respondent) also testified as to how he came to the throne of his forefathers. He gave a brilliant chronology; the fact that Onu Otutubatu’s sphere of influence is not limited to Omagede but extends to surrounding villages, hence reference to him as the “Onu Otutubatu of Bagana” or “Onu Otutubatu of Omagede”. See pages 148-154 of the record for the witness statement of Salifu Anyebe and pages 389 -423 of the record.
It is clear from the record that the testimonies of the witnesses called by the 1st Respondent were not only consistent to the extent that the 1st Respondent exercised traditional control over Bagana, but plausible and credible as a result of which the lower Court had no hesitation in finding in favour of the 1st Respondent. The totality of the testimonies of the 1st Respondent’s witnesses no doubt established that (a) they have established long ruler ship over entire Bagana and surrounding villages; (b) that the 1st Respondent exercised that traditional control by receiving tributes and royalties from subjects and settler; and (c) that 1st Respondent’s ancestors have had disputes over ownership and control of the territory and had judgments in their favour.
It is the law that the issue of who is qualified to ascend any traditional throne or stool is subject to the customary law and traditions of the people concerned and that customary law is a question of fact to be proved by calling evidence unless frequent proof of same has made the customary law to attain the legal status of notoriety thereby rendering same judicially noticeable. Evidence therefore that would uphold a case of traditional history must in the first place be in accordance with the pleadings and it must be credible and reliable. See OLANREWAJU VS. OYESOMI & ORS (2014) 15 NWLR (PT. 1318) 258; AKINLOYE VS. EYIYOLA (1965) NWLR 92; ELIAS Vs. OMO-BARE (1982) 5 SC 25; MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (PT. 7) 393.
It is clear from the record that the 1st Appellant was not able to lead credible evidence to impeach the claim put forward by the 1st Respondent.
DW1 (2nd Appellant) who was called as witness by the 1st appellant had testified under cross examination to the effect that the 1st Appellant installed him as Oga Onu Ife in 2004 and that Abutu Ejeh was the leader of a group from Wukari. He also testified to the effect that he was not aware of the resolution of the boundary dispute between Ankpa in Kogi State and Guto in Nasarawa State; whereas the said boundary dispute was resolved in favour of the ancestors of the 1st Respondent. See pages 329 – 331 of the record for the minutes of the Joint meeting of the boundary dispute committees of Ankpa and Nasarawa Local Governments.
It is clear that Abutu Ejeh was the first Attah lgala and ancestor of the 1st Respondent, but DW1 was not a witness of truth as he tried to down play the significance of Abutu Ejeh as the forebearers of 1st Respondent, despite overwhelming evidence to the contrary. The resolution of the boundary dispute between Ankpa and Guto in Nasarawa State in favour of the 1st Respondenrs ancestor was credible evidence of act of traditional ownership and control over Bagana, which DW1 was not willing to acknowledge. It is understandable so as the 2nd Appellant (DW1) was installed by 1st Appellant as Oga Onu Ife with intent to whittle down the sphere of influence of 1st Respondent.
DW2 did little to help the case of the appellant. He testified to the effect that he knew very little about the origin of the stool of the 1st Respondent and that the committee that looked into a dispute over the stool of 1st Respondent was inclusive. The 1st Respondent also did not appear before the committee. See page 429 of the record for the testimony of Michael Daikwo of the State Ministry of Local Government and Chieftaincy Affairs.
DW3 (1st Appellant) had sought to rely on Exhibit on D5 in contending that the 1st Respondent does not exercise traditional control over Bagana and the surrounding villages as he alleged. But Exhibit D5 fell on its face as there was incontrovertible evidence that Exhibit D5 had been withdrawn and in its place, Exhibits P11; which reaffirms 1st Respondent’s traditional control over Bagana. (See pages 470 – 471 of the record for the Ruling of the Attah lgala dated 11th August 2008). Exhibit P11 is significant not only because it emanates from the Attah lgala, but more so because the Attah lgala took account of record of past disputes and pronouncement of Courts on the traditional ownership of disputed Lands, control over economic trees and an island and the report of the committee on boundary dispute, amongst others in arriving at Exhibit P11.
Apart from the fact that Exhibit P11 comes from the paramount ruler of Igala Land; which the trial Court was right in attaching probative value to, Exhibit P11 is also consistent with the testimonies of PW1, PW2, PW3, PW4, PW5, and PW6.
The sequence of evidence and witnesses led by the 1st Respondent was overwhelming and more convincing as opposed to the disjointed and contradictory evidence led by the 1st Appellant. The trial Court therefore had no difficulty in reaching the verdict it returned on pages 476 – 477 of the record as follows:
“Exhibit P1, P2, and P3, are records of proceedings of Court. They avail the Claimants because they were all decided in favour of his predecessor. By these judgments, the Claimant’s predecessor was held to be entitled to the lands disputed therein. I must and do attach high probative value to the records of proceedings. If claimant’s predecessor was held entitled to those lands because of his stool, the Claimants stand to benefit from them. What of Exhibit P4. It is clear evidence of the ownership of claimant’s predecessor to an island within Bagana district. The Claimant, as the incumbent Onu Otutubatu must benefit from same. I accord it high evidential value. Exhibit P11 is of high probative value for two main reasons.
Firstly, it cancels the advantage bestowed on the first defendant vide Exhibit D5. With Exhibit P11, the parties, i.e the claimant and the first defendant in particular were returned to status quo ante bellum. The status quo ante bellum is that the Claimant held ownership of Bagana lands vide Exhibits P1, P2, P3, and P4.
Secondly, the author of Exhibit P11, the late Attah lgala was a person placed in a position to know who traditionally owned Bagana lands amongst the claimant and the 1st defendants. Both of them are his chiefs who were beaded by him. Even in Exhibit P2, His Royal Majesty, Alh. Aliyu Obaje, Attah lgala gave evidence that the land of Bagana belongs to the Claimant’s predecessor. This is what he said on page 5 lines 7 to 10. “Some years ago, the predecessor of the Defendant the chief of IshianKpe in person of Agba Oga applied to me to permit him to go (sic) Bagana in the jurisdiction of the plaintiff who holds the title of Otutubatu to perform sacrifices to their burial place which is situated there and I granted him the request (underlining mine). It will be absurd for Attah lgala not to know which of his chiefs traditionally controls a particular place. After all, these chiefs are his own care – takers.
I must ascribe high probative value to the testimonies of the witnesses called by the claimant. They are all indigenes of Bagana. It is true some said they or their ancestors migrated to their present abodes, but they have been under the traditional authority of a chief for so long. They are witnesses of truth.
Now, to the evidence led by the defendants. I have held that Exhibit D.5 is no longer in existence. What of Exhibit D2 and D3? Exhibit D2 directed Attah lgala to call the Claimant to order by confining himself to Emagede. I have not seen any action Attah lgala took consequent upon Exhibit D2. Therefore, it is of no evidential value to the case of the defendant. Exhibit D3 was written by the state Ministry of local Government and Chieftaincy Affairs restricting the claimant to Emagede. I have not been shown the basis of that letter. One would have thought that such a directive should emanate from an investigation such as the committee set up on the issue. But the committee did not conclude its assignment let alone issue a report. No wonder the Claimant is alleging undue influence in the case by the then Chief of Staff Balallaruna the elder brother of the 3rd Defendant. In paragraph 3 of Exhibit D3, the author went further to say. “You are to be further informed that there is a traditionally and legally recognized traditional ruler over Bagana district who is the Onu of Bagana – 3rd class status. This cannot be true in the face of Exhibit P11 which emanated from the custodian of Igala Tradition who refused to carry out the directives in Exhibit D2. Based on what I have said above, I will not ascribe any evidential value to Exhibit D3.”
The Supreme Court in pronouncing on the need to give chronological devolution of title to a party in a dispute bordering on evidence of traditional history held in the case of OKULEYE VS. ADESANYA [2014] 12 NWLR (PT. 1422) P.521 as follows:
“A party who relies on traditional history to assert that he is a member of a ruling house must plead the names of his ancestors and link them to the said ruling house to disclose a continuous chain of devolution. He must plead genealogy. The pleadings must be supported by credible evidence to establish such traditional history.”
The Judgement of the learned trial Judge did not violate any provision of the Land Use Act. In a community, local community, the traditional head, the Oba, Emir, Chief, Obi and whatever name he/she is called is the custodian of communal Land for the entire members of the community. He/she is usually assisted by a Council of Advisers or Elders in his managerial decisions. He is usually in a position analogous to a trustee more or less a caretaker for the members of the community. He/she it is who allocates portions of the communal Land to the needy members of the community.
From the record, and from the testimonies of witnesses called by both the 1st Appellant and 1st Respondent, it is clear that the bone of contention had always been who collects royalties and tributes from cultivating the Lands and harvesting the economic trees. There is therefore no form of conflict in the traditional control the 1st Respondent exercised over Bagana and the surrounding villages and the Land Use Act; as the Land Use Act itself recognizes that any time land acquisition is to be undertaken, compensation will be paid in respect of crops and economic trees that are found on the Land. There is no doubt that in contradistinction to the argument of the appellant, the Land Use Act is not averse to but does recognize that traditional rulers exercise some form of control in local communities where the issue of land is concerned. See Section 29 of the Land Use Act and the case of AMALE VS. SOKOTO LOCAL GOVERNMENT [2012] 5 NWLR (PT. 1293) 201.
From pages 308-309 is the record, it is clear that the argument of appellants to the effect that the 1st Respondent is limited to the burial shrine of Abutu Ejeh does not represent the correct position of things. There is overwhelming evidence that the 1st Respondent had exercised traditional control far and above the shrine of the Attah lgala. Furthermore, the contention of appellants to the effect that 1st Respondent’s ancestors are slaves and were not of Igala stock is without basis. The record available is to the contrary. The late Attah lgala Alh. Aliyu Obaje as the custodian of the culture and tradition will guard jealously the genealogy and ancestral origin of the Igalas. He is the least expected to allow a total stranger lay claim to the Igala tribe let alone its traditional stool. He had testified under oath in a Court proceeding to the effect that:
“The Igala tradition in respect of chieftaincy titles is as follows dating from the Attah ldoko to his son Ayegba; Ayegba succeeded his father Idoko. Ayegba started first to give title of chiefs to the citizens and allocated Lands to them. The Otutubatu chieftaincy title is one of the current title in Igala land…” (see page 308 of the record).
From the above testimony of the late Attah lgala, it is clear that the 1st Respondent is not only a chief but that his ancestors are bona fide Igalas contrary to the assertion of the Appellants herein.
The Judgment of the learned trial Judge never occasioned a miscarriage of justice and there is no reason in my view to interfere with same. See EZEAFULUKWE VS JOHN HOLT LTD (1996) 2 NWLR (PT. 423) 511.
The first issue is resolved in favour of the Respondents against the Appellants.
ISSUE TWO
I had stated hereinabove that there were no contradictions in the evidence led by the 1st Respondent before the trial Court, to cast any doubt in this case. I have referred and relied on the records at pages 141 – 142; 223 – 224; 390 – 393; 308 – 309; and 164 – 165 respectively.
For the avoidance of doubt, PW1 had testified that the 1st Respondent exercised traditional ownership over and collected tributes and taxes in Bagana. PW2 testified that the 1st Respondent is the traditional owner of the villages of Bagana, Ajachagba, Omagede, Nkakpo, Egumale, and Abuja Otutubatu and that he collected royalties and tributes from the people of these communities. PW3, PW4, PW5, and the PW6 all testified to the fact that 1st Respondent was the traditional ruler of Bagana and that his sphere of influence is not restricted to the tomb of Abute Eje.
The Attah lgala who had at two Court proceedings testified as to the standing and sphere of influence of the Onu Otutubatu could not have been faulted for the consistency as conveyed in Exhibit P11. For instance in his testimony before the Upper Area Couft in Suit No: CV/174l82, Obuje Adikwu V. Idaho Ohieda, the late Attah lgala Alh. Aliyu Obaje had testified in favour of the Plaintiff therein; who is 1st Respondent’s predecessor to the effect that:
“The Igala tradition in respect of the chieftaincy title is as follows: dating from Attah ldoko to his son Ayegbe: Ayegbe succeeded his father Idoko. Ayegbe started first to give title of Chiefs to the citizens and allocate lands to them. The Otutubatu Chieftaincy title is one of the current title in Igalaland. This is the office the plaintiff represents in this.” See page 308 of the record.
From the testimony of Attah lgala, it is clear where the origin and traditional sphere of the 1st Respondent lies, contrary to the position canvassed by the Appellant. It is also clear from the testimony of the Attah lgala that attempts were made in the past to undermine the authority and sphere of influence of the Onu Otutubatu; which all failed.
The testimony of the Attah lgala is further reinforced by the testimonies of PW1 – PW6. There is therefore no conflict of any substance to have warranted a different conclusion from the conclusion reached by the trial Court. Exhibit D5 was made in error and as soon as the error was brought to the attention of the maker, he withdrew it and in its place Exhibit P11 was produced.
Are the finding of facts contained in the judgment of the learned judge perverse? On this question, Adekeye JSC (as she then was) stated in MINI LODGE LIMITED & ANOR VS. NGEI & ANOR (2009) 18 NWLR (PT. 1173) 254 as follows:-
“A finding of fact is said to be perverse, (a) where it runs counter to the evidence and pleadings. (b) Where it has been shown that the trial Court took into account matters which ought not to have taken into account. (c) Where the trial Court shuts its eyes to the obvious. (d) When the decision has occasioned a miscarriage of justice.” Per Adekeye JSC (P. 45, PARAS E – G).
In my view, the finding of facts leading to the grant of the claim are duly supported by cogent and unimpeachable evidence led by the Respondents before the Court below. In fact the Respondents called 6 (six) witnesses and it was on the strength of their testimony jointly and severally that the award was made. Accordingly, an Appellate Court cannot effectively assess the credibility of witnesses before the Court below and ascribe probative value to same. See the case of KAZEEM & ANOR VS. MOSAKU & ORS (2007) 17 NWLR (PT. 1064) 523 where Tabai JSC stated the law as follows:-
“Because of the Appellate Court’s inability to see and hear the witnesses it cannot properly assess the credibility of the witnesses and make findings thereon in substitution for the finding of the trial Court.”
I hold that the Respondents led cogent and verifiable evidence before the Court below in discharge of the burden placed on them by law to prove this case. The second issue is also resolved in favour of the Respondents against the Appellants.
On the whole, I hold that this appeal lacks merit. It is hereby dismissed. N50,000 (fifty thousand naira) cost is awarded in favour of the Respondents against the Appellants.
STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.
I am in complete agreement with the reasoning and conclusion of my learned brother that this appeal is lacking in merit.
It is settled law that a trial judge who has the first-hand contact with the trial and the hearing of the witnesses called by the parties, has the primary duty of evaluating evidence and properly appraise it. Once the trial judge effectively carried out this duty, and arrive at findings which are not perverse, the appellate Court has no business disturbing the findings of the trial Court. See the cases of Mkpinang v. Ndem (2013) 4 NWLR (Pt. 1344) 302, Dr. Soga Ogundalu v. Chief A.E.O. MacJob (2015) LPELR 24458 (SC); Agbabiaka v. Saibu & Ors (1998) 10 NWLR (Pt. 571) 534.
In the instant case, the trial judge did a correct evaluation of evidence brought before him before arriving at the findings made in the case. There is therefore no reason to upturn the decision of the trial Court in this case. The appeal truly lacks merit.
I therefore, for this and the fuller reasons advanced by my learned brother dismiss this appeal.
I affirm the judgment of the trial Court delivered in Suit No: AYHC/02/2009 on 28th June, 2013. I abide by the order as to costs.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
G.O. AdihFor Appellant(s)
Dr Benjamin Ogwo with him, O. J. Anas for the 1st Respondent.
Abdulwahab Muhammed with him, Adoyi M. Adoyi for the 2nd and 3rd RespondentsFor Respondent(s)
