DANAZUMI MANTAU & ANOR v. YAHAYA MAGAJI
(2019)LCN/13675(CA)
In The Court of Appeal of Nigeria
On Monday, the 22nd day of July, 2019
CA/J/263/18
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. DANAZUMI MANTAU
2. HARUNA BELLO Appellant(s)
AND
YAHAYA MAGAJI Respondent(s)
RATIO
WHEN THE JUDGMENT OF A COURT CAN BE SET ASIDE
At any rate, judgments are only set aside when real case of miscarriage of justice is made out and not simply on grounds of innocuous misstatements made by a lower Court as in this case: see Bankole v. Pelu (1991) 11-12 S.C. 116 @ 120 lines 1-24; Ukaegbu v. Ugoji (1991) 6 NWLR (PT196) 127 @ 147 (S.C.); Agu v. Nnadi (2003) M.J.S.C. 51 @ 58; Ifeanyi-Chukwu Osondu Ltd v. Soleh Boneh (2000) SCNJ 18; Okeahialam v. Nwamara (2003) FWLR (PT 176) 635 . PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Plateau State High Court of 02/02/2018 in exercise of its appellate jurisdiction, in which it affirmed the decision of the Grade 1 Area Court Jengre, Plateau State, in favour of the Respondent. Given the heavy weather made by the lower Court and continued by appellant?s counsel here regarding whether Respondent relied on traditional history as his root of title and if so whether he failed to prove it and whether the ?failure? of his traditional evidence, as found by the lower Court, ought not to resulted in dismissal of his case, I deem it necessary to capture from the outset Respondent?s case before the trial Court as stated by him in his evidence-in-chief as P.W.5. After all the law is settled that the proper place to identify the claim and dispute between the parties in Area and Customary Courts is the testimony of the parties before the Court: see Onwuama v. Ezeokoli (2002) 2 S.C. (PT 11) 76, (2002) 5 NWLR (PT 760) 353, (2002) LPELR-2712 (S.C.). Respondent in his evidence before the trial Court stated
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his claim thus:
I am 95 years old. I sue the defendants because they trespassed into my farmland and cultivated it without my permission. The defendants trespassed in the farmland last year (205 sic: 2015). The farmland is situate in Kabara in Chokobo. I am the owner of the farmland in dispute which the defendants trespassed into. I inherited the farmland from my father who is the deceased. My father got the farmland from his father Gwaldo. Gwaldo also inherited the farmland from his father. After I inherited the land farmland from my father, I have been cultivating it. Since I grew up I have been cultivating the disputed land and harvesting locus beans trees on it. (Italics mine)
He went on to testify to the acts of possession he had exercised on the land over the years thus:
I have been cultivating the farmland in dispute with my younger brother Yakubu who is now deceased. Apart from myself the son of Sallau also cultivate the land in dispute. I am the person that gave the son of Sallau the land in dispute to cultivate. He cultivated the farmland in dispute for 9 years. He cultivated the land free but when there was crisis on the land I
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prevented him from farming the farmland. He is Lemoro by tribe. We have not been cultivating the lands in dispute because Security stopped us for the sake of peace. The Security men that gave us the order are soldiers from Jos. I was the person cultivating the disputed farmland before soldiers stop me from doing so. I know a Fulani man Korou. And he once cultivated the disputed farmland for about 7 years. He harvested my locus beans trees and I sued him in this Court before reporting him to the Police. The Court gave me my locus beans and fined him (Korou). Despite that, he continued farming the land due to mutual relationship. The place that he was cultivating before he left is where the defendants trespassed into. I don?t know the relationship of Korou who I gave the land to and the defendants.
He stated his boundary neighbours in the following manner:
I am sharing boundary with Ali Na?Allah by the North, Mohammadu by the East; I also share boundary with Sale Tanko by the south, Garba Mantu is by the West.
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He wrapped up his evidence-in-chief thus:
It was when I discovered that the defendant cultivated the land in
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dispute that I came to sue them in this Court. I want the Court to retrieve my land from the defendant and declare me as the owner of the land in dispute.
He also called five witnesses of which four (P.W.1 ? P.W.4) were his aforementioned boundary neighbours while the 6th (P.W.6) was his younger brother, Umaru Magaji. All these witnesses – of which none was challenged by appellants on their claim of being boundary neighbours of the disputed farmland – affirmed his ownership and as the only one who was in possession of it before the trespass of the appellants.
In his defence, first appellant testified that he is Fulani by tribe, that he is 47 years old; that the disputed farmland belonged to him; that he inherited it from his father Mantu who inherited from his own father father Waziri Daso who also inherited it from his father Mohammed Garba; that he was born on the land and his family has a building on it; that Respondent has never farmed the said farmland at any time; that one Ali Na?Allah, whom he said was Respondent?s younger brother, even sued his father in the same Area Court sometime in 1991 for trespass to the same land and
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the Court declared his father as the owner; that the same Ali Na?Allah and his brothers subsequently trespassed into the same land and cut locust beans on it so he arrested them with the police and the same Jengre Area Court entered judgment in his favour in 1993. Second respondent, Haruna Bello, he said did not own any portion of the disputed land, Bello is only farming a portion of it by his permission.
He concluded by saying that he inherited the disputed farmland because the Court declared it for his father. He then went on to call three other witnesses, all of whom introduced themselves as his relatives, and claimed the land belonged to them. Unlike Respondent, he did not call any boundary witness to corroborate his that he and his forebears farmed the disputed farmland before his alleged trespass.
The trial Area Court in the course of the proceedings visited the disputed land farmland in the company of both parties and found, among others, that first appellant?s building was not actually inside the disputed land as he claimed.
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It subsequently took final addresses from counsel to parties and, in a rather very lengthy
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?learned? judgment in which it cited several decided cases like a regular Court, found/stated thus:
?It is our candid view therefore that the issue of possession and acts of ownership favours the Plaintiff more than the defendant due to the following reasons:
1. All witnesses of the plaintiff testified consistently that he is the person that was cultivating the land and such evidence has not been discredited.
2. Some of the witnesses particularly P.W.2 and P.W.3 told the Court that they grew up to find the Plaintiff cultivating the land in dispute. This evidence was not challenged.
3. Most of the witnesses of the plaintiff testified that he is the person harvesting the locust beans on the land in dispute and the defendant did not deny or discredit that harvesting of fruits on a land is a prima facie evidence of ownership.
4. Most of the witnesses of the plaintiff, if not all, testified that the Plaintiff once borrowed the farmland to Audu Sallau and Korau. The 1st defendant during his evidence denied that Audu Sallau has been on the land without more. Such denial in the midst of the corroborated evidence is not
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enough to displace or discredit same.
It concluded that Respondent had proved his case by three of five independent ways of proof of ownership of land, namely traditional evidence, long possession and enjoyment of the land and positive acts of ownership. It said that, placed on the imaginary scale, Respondent?s case ?outweighs and suffocates the defendants? (appellants?) in that regard.?
Appellants? appeal to the High Court of Plateau State was dismissed, even as that Court took the view that the ?traditional evidence? of Respondent was inconsistent with that of his younger brother, P.W.6, as to who founded the disputed farmland; the two traditional histories of parties being inconclusive, they ought to be subjected to theKojo II v. Bonsie (1957) 1 WLR 1223 test of numerous and positive acts of possession exercised on the land by the parties in recent times. And applying that test, it held that the case of respondent preponderated on the balance of probability and so the judgment entered in his favour by the trial Court was in order.
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Appellants? are of the view that having held that the
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traditional evidence of Respondent failed, that Court ought to have allowed their appeal and ordered the dismissal of his case especially as they did not have counterclaim to prove. They have accordingly brought this appeal on two grounds and distilled the following two questions for us to determine:
1. Whether the Court below was right in having recourse to evidence of long possession in the determination of title after coming to the definite conclusion that the respondent who was the plaintiff at the trial Court did not establish his claim of traditional history.
2. Whether the Court below misdirected themselves on the facts of the case when they held that the appellant failed to prove their counterclaim, when no such counterclaim was filed and this misapprehension of fact did not occasion a miscarriage of justice.
Respondent on his part took the view that the sole question for determination is: whether in view of the evidence adduced, the Court below was right in affirming the judgment of the Trial Court.
Appellants? contention on their first issue is that the lower Court having overturned the trial Area Court?s
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finding that Respondent failed to established his claim of title through traditional evidence ought not to have gone ahead as it did to revert to sundry acts of possession and ownership exercised by Respondent on the same land to uphold the judgment of the trial Court in his favour as the said acts of possession, long as they may be, were not distinct from the traditional evidence but rather based on it. In support of that proposition, their counsel T. Kekemeke cited the cases of Dikko & Ors v. Abdul & Ors (2014) LPELR- 23625 (C.A.) p. 24-25 and Ajala v. Okogbue & Anor (2010) LPELR-4082 (C.A.) p. 12-13 and urged us to resolve the issue in their favour.
On issue 2, Mr. Kekemeke took issues with the statement of the lower Court that ?…neither the appellant or the respondent were able to establish the claim or counterclaim through traditional history? and submitted that the lower Court held an erroneous belief of the existence of a phantom counterclaim by the appellants which was they did not prove and so wrongly placed on them an onus that did not exist. Citing this Court?s decisions in Amah v. Amah (2016) LPELR-41087 (C.A.)
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and Osazuwa v. Isibor (2003) LPELR- 7295 (C.A.), counsel submitted that wrong placement of onus of proof in a case occasions miscarriage of justice and any judgment founded on it cannot stand.
In response, Mr. A.B. Magaji for Respondent submitted that there are five ways of proof of ownership of land viz: traditional evidence, production of title documents, exercise of numerous acts of possession such as selling or leasing, act of long possession and enjoyment of the land, and by proof of possession of connected land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. Each of these ways, he submitted, is independent of the other and proof of one is enough. Respondent proved his title to the disputed farmland by acts of possession by farming it, selling, leasing and renting out parts of it to others, and by long enjoyment and possession of it so the lower Court was right in upholding his claim and affirming the judgment of the trial Area Court, counsel argued.
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Learned also argued that it is not also true that appellant?s did not counterclaim for
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ownership, especially given that the case was contested in an Area Court where pleadings are not filed. In such Courts, he continued, the issue of whether or not a party counterclaimed for ownership can only be deduced from the evidence adduced in defence; that where the defence denies the claim of the claimant and goes on to assert that he/she is the owner of the disputed land as appellants did, they have also made a sufficient counterclaim and must give explanation, especially where the claimant has proved a prima facie case that would entitle him to ownership. In this case, he pointed out, 1st appellant in his testimony claimed that he inherited the disputed land from his father, so he counterclaimed ownership and cannot renege from it. Counsel cited Angyu v. Mallami Ajala (1992) 4 NWLR (PT 264) 242 @ 264 in support of that. Counsel argued, too, that the judgment that was affirmed by the lower Court is that of an Area Court whose duty is to do substantial justice; that the attitude of appellate Courts to judgments of such Courts is to simply to be sure that their proceedings and judgment complied with substantial justice and common sense, devoid of
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technicalities and procedure niceties – for which counsel cited Adawon v. Asugba (2008) ALL FWLR (PT 420) 742. Civil cases, counsel further argued, are decided on balance of probability. He submitted that in this case the evidence adduced by Respondent at the trial far outweighed that of appellants so the lower Court was right in affirming that judgment and we should not interfere, more so when there are concurrent findings of the two Courts before us.
In reply on points of law, Mr. Kekemeke for appellants argued that it is not correct that there were concurrent findings of fact since the lower Court disagreed with the finding of the trial Court that respondent proved his case even by traditional evidence. In any case, counsel argued, concurrent findings can be overturned were they are shown to be perverse; that in this case where the lower Court found that plaintiff?s evidence of traditional history was not proved, it was wrong in relying on acts of possession to sustain that same judgment so its decision along with that of the trial Court were perverse and liable to be overturned.
Coming to the statement of the law by Respondent?s
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counsel on the attitude of appellate Courts to decisions of Area Courts, learned counsel for appellants while conceding that those Courts are expected to do substantial justice between parties devoid of technicalities and appellate Courts are to approach their decisions with that mindset, counsel added that the fundamental principles of law are not discriminatory and apply to such Courts too with equal force and one of such principles is that where there is a failure by a party seeking a decree of declaration of title, his or her claim is bound to fail – in support of which learned counsel referenced the decision of this Court in Jini v. Janglaka & Anor (2015) LPELR-25637 (C.A.) p. 36-37. The lower Court was bound to dismiss Respondent?s case having found that he did not prove his root of title, and that is regardless of the fact that the case originated from an Area Court, learned counsel argued.
RESOLUTION
It appears to me that the Respondent?s sole issue of whether in view of the evidence adduced, the Court below was right in affirming the judgment of the Trial Court encompasses appellants? two issues and better
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captures their complaint in this appeal.
In considering appellants? complaints, the first point to note is that this case originated from an Area Court whose sole duty is to do substantial justice between parties devoid of the usual technicalities attendant upon cases contested in the Superior Courts of record. That duty does not change simply because the said Court is manned by trained lawyers, as I believe the trial Area Court was given the avalanche of decided cases of Superior Courts it cited and analyzed in its judgment. Incidentally, this case seems in the main to fall in all fours with the case of Onwuama v. Ezeokoli (2002) 2 S.C. (PT 11) 76, (2002) 5 NWLR (PT 760) 353, (2002) LPELR-2712 (S.C.). There, the Supreme Court (Uwaifo, J.S.C., anchoring lead judgment) tackled among others all these arguments of appellant of need to prove traditional evidence before a Customary Court and whether evidence by a plaintiff before a Customary Court to the effect that he ?inherited? the land in dispute from his forbears amounts to proof of traditional history. The apex Court there first reproduced the arguments of appellant this way at p. 365
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NWLR thus:
?In regard to the other issue (issue No 4) it seems appellant raises a number of grievances. He argues that it is not sufficient that the respondent testified that he inherited the land in dispute from his father who inherited it from his own father Ezeodika; that it must be pleaded and proved how the land was originally acquired; and that evidence ought to be have been led as to all the intervening descendants through whom he claims relying on Lawal v. Olufowobi (1996) 12 SCNJ 376.; (1996) 10 NWLR (PT 477) 177. It has also been argued that the evidence led by the respondent was not satisfactory.?
It then dealt with those arguments this way:
?It must be remembered that this case was tried in the Customary Court where pleadings are unknown. The proceedings in such Court are to be considered upon a broad view as to whether they are conducted in pursuit of the justice of the case presented by both parties. In other words, appellate Courts are to consider the substance of the proceedings of Native, Customary or Area Courts liberally and this is done by reading the record to understand what the proceedings were all about
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so as to determine whether substantial justice has been done to the parties within the procedure permitted by the Courts: see . The case of Lawal v. Olufowobi (supra) originated in the High Court and was tried on the pleadings of the parties. By such procedure any party who relies on traditional history to prove title must plead the particulars which support that history. ?The appellant has further contended that the evidence of traditional history led by the parties was in conflict with each other. It was said that because of that conflict the trial Customary Court had to look for how to resolve the conflict its own way. This argument is based solely on the fact that the trial Customary Court called an independent witness, the circumstances of which I have already narrated. I think the submission that evidence of traditional history was led is erroneous. What was led by either side was evidence of possession which is one of the ways of asserting title to land and is regarded as separate and independent of claim based on traditional history: see Idundun v. Okumagba (1976) 9-10 S.C 227; Balogun v. Akanji (1988) 1 NWLR (PT 70)
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301.? It finally held that all that is required in such a case before Area, District or Customary Court is for the plaintiff to produce such evidence as would support his declaratory relief and which in the end when placed on the scale of justice will tilt it in his favour; that the Respondent who like the respondent here simply stated in his evidence at the trial Customary Court that he inherited the disputed land from his father who in turn inherited it from his own father without stating how the land was originally acquired could, and did, succeed on the numerous acts of possession he is shown to have exercised on the said land, proof of acts of possession being an independent means of proof.
That applies with equal measure to this case given the concrete findings of the two Courts below on the numerous acts of possession exercised by Respondent on the disputed land prior to appellants trespass as shown earlier in this judgment. The balance of probability of ownership of the land, I agree with them, weighed very heavily in favour of the Respondent. In the event, I see no reason to interfere.
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That is even as I must add, albeit only as
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an aside, that even in the Superior Courts where pleadings are filed, the claim of the Respondent of inheritance of the disputed farmland through his various ancestors, without stating how his forebears from whom he claims came to own it, does not amount to traditional evidence, strictly speaking, and so could not have dis-entitled him from relying on other methods of proof including numerous acts of possession exercised by him on it as he did: see Anyanwu v. Mbara (1992) 5 NWLR (PT 242) 386 @ 399 A?D. (S.C.); Uchendu & Ors v. Ogboni & Ors (1999) LPELR- 3287 (SC), pages 16-17.
I am also not persuaded by the heavy weather Mr. Kekemeke for appellants sought to make of the lower Court?s statement that neither Appellants nor Respondent was able to prove their claim and counterclaim through traditional history, which statement learned counsel on their behalf argued suggests the lower Court wrongly put on them a burden to prove an in-existent counterclaim and so miscarriage of justice was occasioned. The said statement of the lower Court and the employment of the word ?counterclaim? should be put in its proper con, just as the
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Supreme advised and did in rejecting a not too dissimilar argument in Ayeni & Ors v. Sowemimo (1982) NSCC 104 @ 112. If that is done, it would be seen that the lower Court only used the word counterclaim in its ordinary sense of conflicting claims of traditional history of ownership of the same land put forward by both Respondent and Appellants, which claims required proof by them, else the Kojo II v. Bonsie (1957) 1 WLR 1223 would apply to determine which of their competing traditional histories was more probable. It never used the word counterclaim in its legal sense of a counterclaim endorsed by appellants with reliefs for which they paid filing fees and were required to prove. In short, appellants are simply trying to make a mountain out a molehill.
At any rate, judgments are only set aside when real case of miscarriage of justice is made out and not simply on grounds of innocuous misstatements made by a lower Court as in this case: see Bankole v. Pelu (1991) 11-12 S.C. 116 @ 120 lines 1-24; Ukaegbu v. Ugoji (1991) 6 NWLR (PT196) 127 @ 147 (S.C.); Agu v. Nnadi (2003) M.J.S.C. 51 @ 58; Ifeanyi-Chukwu Osondu Ltd v. Soleh Boneh (2000) SCNJ 18;
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Okeahialam v. Nwamara (2003) FWLR (PT 176) 635 .
In the final analysis, I find no merit in the appeal, accordingly it is hereby dismissed.
There shall be costs of ?50,000 in favour of the Respondent.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the benefit of reading in draft copy the judgment just delivered by my brother BOLOUKUROMO MOSES UGO, JCA. I agree and cannot fault the reasoning and conclusion he arrived at in dismissing the appeal. I too dismiss the appeal for the same reasons.
I abide by the Order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the opportunity of reading in advance the draft of the judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA.
I agree with his reasoning and conclusion that the Appeal is meritless and ought to be dismissed.
The Appeal is hereby dismissed. I abide by all the consequential Orders in the lead judgment.
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Appearances:
N.S. Kwotbok Esq.For Appellant(s)
S.L. Albarka Esq. for Magaji Esq.For Respondent(s)
Appearances
N.S. Kwotbok Esq.For Appellant
AND
S.L. Albarka Esq. for Magaji Esq.For Respondent
