YAKUBU TELLA & ANOR v. MR. ENOCK B. DANIEL (2013)

YAKUBU TELLA & ANOR v. MR. ENOCK B. DANIEL

(2013)LCN/6304(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of June, 2013

CA/K/177/2005

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

YAKUBU TELLA
ALHAJI AHMED BAKO Appellant(s)

AND

MR. ENOCK B. DANIEL Respondent(s)

RATIO

WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL

Now, it is elementary that the issues for determination in an appeal must arise from the grounds of appeal and that an issue for determination not premised on a ground of appeal has no leg to stand on and must be discountenanced by the Court – Nfor Vs. Ashaka Cement Co. Ltd (1994) 1 NWLR (Pt 319) 222, Ogunyade Vs. Oshunkeye (2007) 15 NWLR (pt 1057) 218, Unity Bank Plc Vs. Bouari (2008) 7 NWLR (Pt 1086) 372 and Federal University of Technology, Yola Vs. Academic Staff Union of Universities (2013) 1 NWLR (Pt 1335) 249. This Court will discountenance the aspect of the first issue for determination of the Appellants complaining about the jurisdiction of the Customary Court of Appeal to entertain the appeal of the Respondent from the Upper Customary Court on the ground of the refusal the Upper Customary Court to award damages. PER ABIRU, J.C.A.

DEFINITION OF AN ISSUE FOR DETERMINATION
. It is settled that an issue for determination in an appeal is a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs. Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501 and G. Chitex Industries Ltd Vs. Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (pt 945) 392. An issue in an appeal is a substantial question of law or fact or both – Ebukoyo Vs. Obolo (2007) 7 NWLR (Pt 1033) 217. This Court will also discountenance the issue. The complaint of the Appellants in ground two of their notice of appeal will be treated under the third issue for determination. PER ABIRU, J.C.A.

DETERMINATION OF THE JURISDICTION OF A COURT

It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A court cannot do more than this – Atiku Vs. Bodinga (1988) 2 NWLR (Pt 76) 369, Oloba Vs. Akereja (1988) 3 NWLR (Pt 84) 508, Anibi Vs. Shotimehin (1993) 3 NWLR (pt 282) 461, Elelu-Habeeb Vs. Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: (Delivering the Leading Judgment): This matter emanated from the Upper Customary Court, Kafachan sitting in its original jurisdiction. The case was filed by the Respondent, as plaintiff against the first Appellant, as defendant, as a complaint of criminal trespass and mischief committed by the cutting of economic trees on his farmland situate at Abet in Zongon Kataf Local Government Area which constituted an offence under the provisions of sections 342 and 326 of the Penal Code and the Respondent claimed for the sum of N100,000.00 as damages. After hearing the Respondent state his claim, as plaintiff, and the first Appellant’s response, as defendant, and wherein the first Appellant raised the issue of the ownership of the said farmland, the Upper Customary Court converted the case to a civil claim. The Court said thus:

“This case is therefore turned to civil matter since it is a land dispute and claim for compensation of N100,000. Plaintiff filed this case claiming his inherited land which he inherited from his father and is also claiming an inherited land for the family which situate at Abet of Zongon Kataf LGA which defendant entered thereon on 14th of January 2003 and cleared part and cut some of the economic trees. In the plaintiff’s statement of claim, he is claiming thus:
1. His farmland should be given to him
2. To pay him compensation of N100,000 for wrongful entry or criminal trespass to land.
3. That the defendant or anybody else should be restrained from carrying or doing any job on the land until final determination of the matter.” (See pages 4 to 5 of the records)

The matter was set down for hearing on these claims. The first Appellant applied that the trial Court visit the locus in quo and the request was granted. The Upper Customary Court visited the locus in quo on the 6th of February, 2003 (the report of the visit is contained on pages 5 to 10 of the records). When the matter came up before the Upper Area Court on the 13th of March, 2003, the first Appellant applied that he be allowed to defend the matter in a representative capacity, for himself and on behalf of the Basa family, and the application was granted. The second Appellant thereafter applied to be joined as the second defendant in the matter and his application was also granted.

The matter proceeded to trial and during which the parties called witnesses in proof of their respective cases. At the conclusion of trial and after hearing closing arguments, the Upper Customary Court in a one paged judgment found for the Appellants. The Respondent was dissatisfied with the judgment and he appealed to the Customary Court of Appeal sitting in Kaduna on five grounds; namely that:
i. The decision was against the weight of evidence.
ii. The trial Court erred in law to have declared title of the said land containing six houses of the Respondent’s family to the Appellants when same is the subject of an irrevocable customary grant.
iii. The trial Court erred in law when it failed to make findings on the acceptable native law and custom governing the subject matter and the parties and thereby occasioned a miscarriage of justice by its failure to award damages.
iv. The trial Court erred in law when it resolved to partition the land containing the Respondent’s family houses and covered all by investments between both parties when there was no counterclaim filed before it.
v. The trial Court erred in law to have heard and/or conducted substantially its proceedings in Hausa language.

The Customary Court of Appeal heard arguments of the Counsel to the parties on the appeal and, in a considered judgment delivered on the 9th of July, 2004, it allowed the appeal of the Respondent on the first, second and third grounds of appeal while it dismissed the appeal on the fourth and fifth grounds of appeal. The Customary Court of Appeal set aside the judgment of the Upper Customary Court and it entered judgment for the Respondent as the customary owner of the land in dispute in the matter and remitted the case to the Upper Customary Court for a determination of the amount of compensation that was due to the Respondent from the Appellants.
The Appellants were not happy with the judgment and they caused an appeal to be filed against it to this Court by a notice of appeal dated the 9th of August, 2004 and containing nine grounds of appeal.

In compliance with the Rules of this Court, the Appellants filed a brief of arguments dated the 23rd of November, 2006 and it consisted of nine pages. The Appellants’ brief of arguments was deemed proper on the 14th of March, 2007. The Respondent’s brief of arguments consisting of ten pages is dated the 24th of January, 2011, and it was deemed properly filed on the 25th of January, 2011. At the hearing of the appeal on the 11th of April, 2013, Counsel to the Appellants and to the Respondent relied on and adopted their respective briefs of arguments.

Counsel to the Appellant distilled three issues for determination in his brief of arguments and these were:
i. Whether the lower Court had jurisdiction to entertain the first and third grounds of appeal.
ii. Whether the lower Court properly understood the claim of the Respondent before the trial Court.
iii. Whether the lower Court was right to have declared the Respondent as the customary owner of land when it is common ground that the land was given on a loan.

Counsel to the Respondent stated in his brief of argument that he was adopting the issues formulated by Counsel to the Appellants but with slight modifications and he modified them thus:
i. Whether the Customary Court of Appeal had jurisdiction to entertain the first and third grounds of appeal and to further go ahead and formulate what it feels are the issues for determination from the submissions of Counsel, arguments adduced before the lower Court and the grounds of appeal.
ii. Whether the Customary Court of Appeal properly understood the claims of the Respondent before the trial Court.
iii. Whether the Customary Court of Appeal was right to have declared the Respondent the customary owner of the land when it is common ground that the land is subject of an absolute and irrevocable grant subject only to the grantee’s declaration that he shall vacate, whereupon the land reverts back to the grantor.

With respect to Counsel to the Respondent, what he said was a slight modification of the first and third issues for determination formulated by Counsel to the Appellants was in fact a complete distortion of the said issues for determination. It is trite law that issues for determination are an important part of a brief of arguments and their purpose is to enable the parties narrow the issues in the grounds of appeal filed and that the characteristics of a well drafted issue for determination in a brief of argument are precision, brevity, accuracy and clarity – Uwaifo Vs. Uwaifo (2005) 3 NWLR (Pt 913) 479, Iloabachie Vs. Iloabachie (2005) 13 NWLR (pt 943) 695, Maishanu Vs. Manu (2001) 7 NWLR (Pt 1032) 42. The reformulated issues for determination of the Respondent lacked all these attributes. Further, it is trite that an issue for determination should not comprise of other issues; it should not be a composition of two different issues Iloabuchi Vs. Ebigbo (2000) 8 NWLR (pt 668) 197, Ehikhamwen Vs. Iluobe (2002) 2 NWLR (Pt 750) 151, Unokan Enterprises Ltd Vs. Omuvwie (2005) 1 NWLR (pt 907) 293, Ikare Community Bank (Nig) Ltd Vs. Ademuwagun (2005) 7 NWLR (pt 924) 275. The reformulated first issue for determination of the Respondent was a pot pourri of many issues lumped together and is thus inappropriate. This Court will discountenance the issues for determination formulated by the Respondent.

On the issues for determination formulated by the Appellants, the Counsel to the Appellants stated that the first issue for determination was distilled from the first and the ninth grounds of appeal. Reading the said grounds of appeal side by side with the first issue for determination, while it is correct that the first ground of appeal complained against the jurisdiction of the Customary Court of Appeal to hear and determine the appeal from the Upper Customary Court on the ground that the judgment was against the weight of evidence (the first ground of the appeal of the Respondent from the Upper Customary Court to the Customary Court of Appeal), the ninth ground of appeal did not make any such complaint against the jurisdiction of the Customary Court of Appeal to hear the appeal on the ground of the refusal the Upper Customary Court to award damages (the third ground of the appeal of the Respondent from the Upper Customary Court to the Customary Court of Appeal). The ninth ground of the appeal before this Court read thus:
“The learned Judges of the Customary Court of Appeal erred in law when they held that the Respondent is entitled to compensation and remitted same to the trial Court for assessment, since the Respondent had forfeited their license to continue to remain on the land by the claim of title.

PARTICULARS OF ERROR IN LAW
i. The Court in its judgment held that the Respondent is entitle to compensation.
ii. The Court further remitted the case to the lower Court in order to assess and award damages only to the Respondent as regard to economic trees cut down.”

This is definitely not a complaint against the jurisdiction of the Customary Court of Appeal in any manner or form. Now, it is elementary that the issues for determination in an appeal must arise from the grounds of appeal and that an issue for determination not premised on a ground of appeal has no leg to stand on and must be discountenanced by the Court – Nfor Vs. Ashaka Cement Co. Ltd (1994) 1 NWLR (Pt 319) 222, Ogunyade Vs. Oshunkeye (2007) 15 NWLR (pt 1057) 218, Unity Bank Plc Vs. Bouari (2008) 7 NWLR (Pt 1086) 372 and Federal University of Technology, Yola Vs. Academic Staff Union of Universities (2013) 1 NWLR (Pt 1335) 249. This Court will discountenance the aspect of the first issue for determination of the Appellants complaining about the jurisdiction of the Customary Court of Appeal to entertain the appeal of the Respondent from the Upper Customary Court on the ground of the refusal the Upper Customary Court to award damages.
The second issue for determination questions whether the Customary Court of Appeal properly understood the claims of the Respondent before the trial Court. The issue was said to arise from the second ground of appeal of the Appellants before this Court. The complaint of the Appellants in that ground of appeal was that the Customary Court of Appeal set up a case for the Respondent different from the case canvassed by the Respondent at the Upper Customary Court. The second issue for determination did not capture this complaint. The issue as formulated is puerile. It is settled that an issue for determination in an appeal is a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs. Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501 and G. Chitex Industries Ltd Vs. Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (pt 945) 392. An issue in an appeal is a substantial question of law or fact or both – Ebukoyo Vs. Obolo (2007) 7 NWLR (Pt 1033) 217. This Court will also discountenance the issue. The complaint of the Appellants in ground two of their notice of appeal will be treated under the third issue for determination.

Reading through the processes in this matter, it is the view of this Court that there are only two issues for determination in this appeal and these are:
i. Whether the Customary Court of Appeal had jurisdiction to have entertained the appeal of the Respondent from the Upper Customary Court on the ground that the judgment was against the weight of evidence.
ii. Whether, on the strength of the evidence led by the parties before the Upper Customary Court, the Customary Court of Appeal was correct in setting aside the judgment of Upper Customary Court entered in favour of the Appellants and substituting therefore a judgment in favour of the Respondent.

The two issues for determination shall be considered separately.
On the first issue for determination, Counsel to the Appellants referred to the provisions of section 282 of the Constitution of the Federal Republic of Nigeria 1999 and section 46 (1) and 48 (1) of the Customary Court of Appeal Law of Kaduna State 2001 and he submitted that they Limited the jurisdiction of the Customary Court of Appeal to matters relating to customary law. Counsel submitted that a ground of appeal complaining that the judgment of the Upper Customary Court was against the weight of evidence was a ground of appeal on facts and has no connection with customary law and that as such the Customary Court of Appeal cannot entertain an appeal predicated on such a ground of appeal. Counsel stated that the Customary Court of Appeal considered the first ground of appeal along with the second ground of appeal and upheld the appeal on the two grounds. Counsel urged this Court to set aside the findings on two grounds of appeal as the Customary Court of Appeal had no jurisdiction to consider the first ground of appeal.

In response, Counsel to the Respondent also referred to the provisions of section 282 of the Constitution of the Federal Republic of Nigeria 1999 and section 38 (1) of the Customary Court of Appeal Law of Kaduna State 2001, and he conceded that the jurisdiction of the Customary Court of Appeal is limited to matters relating to customary law. Counsel stated that it was correct that the Customary Court of Appeal considered the first and second grounds of appeal together and distilled one issue from the two grounds and this was – whether the parties had proved their competing claims to the disputed pieces of land. Counsel stated that even assuming that the first ground of appeal before the Customary Court of Appeal was incompetent, thus should not affect the findings of the Court on the issue distilled from the two grounds of appeal because it is the first ground of appeal alone that will be struck out and the second ground of appeal can sustain the issue.

Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction defines the power of courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority.

The jurisdiction of the Customary Court of Appeal of a State is donated by section 282 of the Constitution of the Federal Republic of Nigeria 1999. The section prescribes that a Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law and such other matters as may be prescribed by the House of Assembly of the State in which the Customary Court of Appeal is established. In the instant case, the Customary Court of Appeal Law of Kaduna State 2001 is the only Law of Kaduna State that presently contains provisions in respect of the Customary Court of Appeal, Kaduna and it did not conferred any additional jurisdiction on that Court to decide matters on other questions other than customary law. It follows therefrom that the Customary Court of Appeal, Kaduna State can only decide on matters of customary law that comes before it on appeal from the various Customary Courts in the State.

Therefore, for an appeal to be competent before the Customary Court of Appeal, the grounds of Appeal must relate to and raise questions of customary law alone. It is not the subject matter of the action in the trial court that confers jurisdiction on the Customary Court of Appeal. It is rather the ground of appeal from the decision of the Customary Court that will confer the necessary jurisdiction on the Customary Court of Appeal – Hirnor Vs. Yongo (2003) 9 NWLR (pt 824) 77, Customary Court of Appeal, Edo State V. Aguele (2006) 12 NWLR (pt 995) 545.

The first ground of the appeal in the appeal filed from the Upper Customary Court to the Customary Court of Appeal in the instant case was that “the judgment was against the weight of evidence”, the omnibus ground of appeal in civil matters. An omnibus ground of appeal implies that the judgment of the trial court cannot be supported by the weight of evidence adduced by the successful party which the trial court either wrongly accepted or that the inference drawn or conclusion reached by the trial court based on the accepted evidence cannot be justified. Thus, when an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of evidence – Mogaji Vs. Odofin (1978) 4 SC 91, Anyaoke Vs. Odi (1986) 3 NWLR (pt 31) 731 and Akinlagun Vs. Oshoboja (2006) 12 NWLR (Pt 993) 60.

Now, so long as the evidence led before the trial Customary Court was on questions of customary law, this Court must say that it does not see why an appeal to the Customary Court of Appeal on the omnibus ground, in such circumstances should not be proper because all that is being requested is that the Customary Court of Appeal should review evidence of customary law.

However, in Golok V. Diyalpwan (1990) 3 NWLR (pt 139) 411, Uwais, JSC (as he then was), while holding that an appeal to the Court of Appeal from the Customary Court of Appeal did not accommodate any complaint or ground of appeal which does not raise a question of customary law, stated that an omnibus ground deals purely with facts and has no connection whatsoever with customary law. In Usman V. Umaru (1992) 7 NWLR (pt 254) 377, the Supreme Court, per Ogundare, JSC, stated that a ground of appeal stating that the judgment of an Upper Area Court was against the weight of evidence can hardly be said to involve any question regarding customary law and that as such the Customary Court of Appeal has no jurisdiction to entertain an appeal on that ground. This judgment was quoted and followed by the Court of Appeal in Korau V. Korau (1998) 4 NWLR (pt 545) 212. This Court has not been invited to depart from these decisions and as such follow them, it must. These decisions led this Court to the inevitable conclusion that the Customary Court of Appeal, Kaduna State had no jurisdiction to entertain the appeal of the Respondent from the Upper Customary Court, Kafachan on the first ground of appeal presented in the appeal. The first issue for determination is thus resolved in favour of the Appellants.

It must be stated, however, that this resolution of the first issue for determination in favour of the Appellants is of no moment in this appeal. The reason being that the appeal of the Respondent from the Upper Customary Court to the Customary Court of Appeal was predicated on five grounds of appeal, the fact that one of the grounds was incompetent cannot thus affect the competence of the entire appeal. Additionally, the records of appeal show the Customary Court of Appeal treated the first and second grounds of the appeal together and distilled one single issue from them – whether the parties have proved their competing claims to the disputed piece of land.
The Court thereafter deliberated on the issues and made findings thereof. A read through the second ground of appeal and the particulars in support thereof shows that the second ground of appeal can on its own, without the first ground of appeal, sustain the issue so distilled, the arguments of Counsel thereon and the deliberations of the lower Court on it.

This takes us to the second issue for determination. Counsel to the Appellants submitted that the claims of the Respondent before the Upper Customary Court were for declaration of title, damages and injunction while the lower Court held that the Respondent’s claim was that the land in dispute was given to them as absolute and irrevocable grant and that it was on this basis that the lower Court found in favour of the Respondent. Counsel stated that it was never the case of the Respondent that the land was given to them as an irrevocable grant. Counsel submitted that the lower Court did not understand the case of the Respondent and it thus set up a new claim for him thereby occasioning a miscarriage of justice.

Counsel stated that the lower Court held that, from the totality of the evidence adduced in court by the parties, the grant of the land in dispute was absolute and irrevocably made by the Appellants’ ancestors to the Respondent’s ancestors and that the grant could only be revoked when the Respondent decides to vacate the land according to the tradition and custom governing the grant. Counsel stated that the lower Court thereafter declared the Respondent to be the customary owner of the land in dispute. Counsel submitted that by declaring the Respondent the customary owner of the land, the reversionary right of the Appellants was extinguished and that this made the findings perverse.
In response, Counsel to the Respondent stated that the appeal was in respect of a matter emanating from a Customary Court and submitted that an appellate Court is enjoined when dealing with such matters to look at the claims, the findings of fact and evidence to ascertain what the real issues in that court were since there are no pleadings and technicalities have no place in such courts. Counsel stated that looking at the case of the Respondent before the Upper Customary Court from this stand point, it was obvious that the lower Court did not misunderstand the case of the Respondent and did not set up a different case for him. Counsel stated that the findings made by the lower Court were supported by the evidence led by the parties on the records and that it was common ground between the parties that the Respondent was granted the land by a customary grant which, under the Bajju/Kamatan customary law, could not be revoked by the Appellants and that the only way to end the grant was if the Respondent decided to vacate the land. Counsel urged the Court to resolve the issue in favour of the Respondents.
This appeal revolves around a dispute over a parcel of farmland granted to the ancestors of the Respondent by the ancestors of the Appellants under the Bajju/Kamatan customary law and it emanated from the Upper Customary Court. As rightly pointed out by Counsel to the Respondent, in dealing with judgments from Customary Courts, it is the substance and not the form that should be looked at and great latitude is given to and broad interpretation placed upon cases decided by native courts. Their proceedings have to be carefully scrutinized to ascertain the subject matter of the case as well as the real issues therein raised – Ajagunjeun V. Osho (1977) 5 SC 89, Ikpang V. Edoho (1978) 6-7 SC 221, Osu V. Igiri (1988) 1 NWLR (Pt 69) 221, Nwosu V. Udeaja (1990) 1 NWLR (pt 125) 188, Kamalu V. Umunna (1997) 5 NWLR (Pt 505) 321, Okukuje V. Akwido (2001) 3 NWLR (Pt 700) 261. In Agbasi V. Obi (1998) 2 NWLR (Pt 536) 1, Belgore, JSC at page 14 said:
“The native courts are courts of common sense and simplicity, they are never burdened by strict adherence to procedure. They are courts for quick and cheap manner of dispensation of justice. Most of the time, their decisions reflect the very justice and truth of the cases. It is because these courts are not tied to technicality of procedure that the appellate court must look at the totality of the proceedings to find who were the parties before them, what were the issues before them and what they have decided.”

In his own contribution, Onu, JSC at page 18 stated:
“Indeed… judgments of Native Courts should be treated differently from those of a High Court. When dealing with such judgments, an appellate court is entitled to go beyond what appears on the face of the claim and ascertain from the entire evidence before the Native Court (Customary Court or Area Court) what really the nature of the dispute is involved. In other words, great latitude must be given to, and a broad interpretation placed upon, Native Court cases and that the whole proceedings, the evidence of the parties and the judgment, must be looked at in order to decide what a Native Court case was about.”

Reading through the records of appeal, the claims of the Respondent before the Upper Customary Court was for declaration of ownership of the farmland, damages and injunction. The Respondent predicated the claim of ownership of the farmland on inheritance from his ancestors and it was his case that the farmland was granted to his ancestors by the ancestors of the Appellants according to the Bajju/Kamatan custom of slaughtering a fowl and cooking of local beer which in essence translated to an irrevocable and absolute grant of the farmland. It was his case that according to the custom, this meant that the Appellants cannot eject him from the farmland and can only regain the land if and when he decides to vacate it on his own. The case of the Appellants was that the land was only loaned/borrowed to the ancestors of the Respondent by their ancestors and that it was revocable. The lower Court correctly and rightly identified these respective cases of the parties in its judgment (see page 65 of the records).

Now, it is trite that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him, and judgment should be entered for the other party – Chukwu Vs. Amadi (2009) 3 NWLR (pt 1127) 56, Usung V. Nyong (2010) 2 NWLR (pt 1177) 83, Ogunjemila V. Ajibade (2010) 11 NWLR (pt 1206) 559. Where the claimant is able to prove his claim by adducing cogent and credible evidence in support, however, the burden will shift to the defendant to adduce evidence in rebuttal by showing a better title to the land on preponderance of evidence – Ashiru V. Olukoya (2006) 11 NWLR (Pt 990) 1, Adedeji V. Oloso (2007) 5 NWLR (Pt 1026) 133, Margi V. Yusuf (2009) 17 NWLR (pt 1169) 162. If the defendant cannot lead any credible evidence to tilt the scale to his side, judgment will be for the claimant – Dabo V. Abdullahi (2005) 7 NWLR (pt 923) 181. This principle of burden of proof was recognized by the lower Court in its treatment of the respective cases presented by the parties before the Upper Customary Court (see page 65 of the records).
The lower Court waded through the evidence led by the parties on the records from the Upper Customary Court and it commenced deliberations from the case of the Respondent. The lower Court evaluated the evidence led by the witnesses of the Respondent and it found that they were cogent and credible to sustain the case of the Respondent that the ancestors of the Appellants granted the land in dispute to the ancestors of the Respondent and that a ceremony of slaughtering a fowl and cooking of local beer was performed and which under the Bajju and Kamatan custom constituted the grant as an irrevocable grant that can only be brought to an end by the Respondent willingly vacating the land. The lower Court thereafter turned its attention to the case of the Appellants and it traversed through and evaluated the evidence of the witnesses of the Appellants. The lower Court found that the evidence of the witnesses of the Appellants supported the case of the Respondent and that the Appellants failed to lead credible evidence to sustain their case. It must be remembered that the Respondent herein was the appellant in the lower Court while the Appellants were the respondents and the lower Court concluded its deliberations thus:
“From the evidence adduced in the lower court as regarding the competing claims, we totally agree with the submission of learned Counsel for the appellant that the grant was absolute and irrevocable (sic) made by the respondent’s ancestors to the appellant’s ancestors. And that the grant could only be revoked when the appellant decides to vacate the land according to the tradition and custom governing the grant.
The respondents and their witnesses admitted that the land can only revert to the original owners when the guarantees (sic) vacate the land, and they also admitted that the appellant have (sic) not indicated intention to vacate the land.” (See page 58 of the records)

The Appellants in the instant appeal have not challenged the evaluation of evidence carried out by the lower Court and/or the findings made therefrom in their brief arguments. The law is that a finding by a court which is not challenged on appeal is binding on the party against whom it was made – Abubakar V. Bebeji Oil and Allied Products Ltd (2007) 8 NWLR (pt 1066) 319, Uwazurike V. Nwachukwu (2013) 3 NWLR (pt 1342) 503.

The first complaint of the Appellants in the second issue for determination is that while the claims of the Respondent were for declaration of title, damages and injunction, the lower Court found for the Respondent on irrevocable grant and thus made out a case different from that canvassed by the Respondent. It is settled law that a grant is one of the recognized modes of acquiring title to land – Imah V. Okogbe (1993) 9 NWLR (Pt 316) 159, Okoli V. Ojiakor (1997) 1 NWLR (pt 479) 48, Anyaegbunam V. Osaka (2000) 5 NWLR (Pt 657) 386. Thus, the finding by the lower Court that the land in dispute was given to Respondent as an absolute and irrevocable grant was not contrary to the claim of the Respondent for declaration of ownership and it cannot amount to the lower Court setting up a different case for the Respondent. This complaint of the Appellants was not well founded.

The second complaint of the Appellants was that, having found that the grant made to the ancestors of the Respondent could be revoked by the Respondent vacating the land, the lower Court was in error when it declared the Respondent the customary owner of the land as this shut out their right of reversion. It is correct that the lower Court slipped into error when it declared the Respondent to be customary owner of the land in dispute instead of a customary grantee. However, it is settled law that it is not every slip or error in the judgment of the lower Court that will necessitate the judgment being upturned on appeal. For such error to have that effect it must be substantial and must have occasioned a miscarriage of justice. In other words, the error must be such as influenced the judgment in a manner that led to a wrong decision causing the appellant to suffer injustice or has affected the decision appealed against in a way tantamount to substantial, misdirection or error in law – Mohammed Mustapha Ali Company Ltd V. Goni (2006) 10 NWLR (Pt 987) 88, Nigeria Bottling Company Plc V. Olanrewaju (2007) 5 NWLR (pt 1027) 255, AG Leventis (Nig) Plc V. Akpu (2007) 17 NWLR (Pt 1063) 416, Abubakar V. Bebeji Oil and Allied Products Ltd (2007) 8 NWLR (pt 1066) 319. The error complained about by the Appellants was not substantial and it has not been shown to have occasioned a miscarriage of justice. Additionally, an issue which is a mere complaint against a statement in the judgment of the court appealed against which does not show how that statement affected the final decision of the lower court, can hardly be regarded as a real issue for determination in an appeal against that judgment – Witt & Busch Ltd V. Dale Power Systems Plc (2007) 17 NWLR (Pt 1062) 1. Save that the slip of the lower Court be corrected, this complaint of the Appellants was also misconceived.

The second issue for determination is resolved in favour of the Respondent. The Appellants have not presented this Court with any credible or cogent reason to disturb or to tamper with the judgment of the Customary Court of Appeal. This appeal lacks merit and is hereby dismissed. The judgment of the Customary Court of Appeal, Kaduna State delivered on the 9th of July, 2004 in Suit No CCA/KAD/18A/2003 is hereby affirmed save that the Respondent is declared the customary grantee of the land in dispute and not the customary owner thereof. The Respondent is awarded the costs of this appeal assessed at N30, 000.00. These shall be the orders of this Court

ABDU ABOKI, J.C.A.: The judgment prepared by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU JCA, was made available to me earlier than now. Having perused same, I completely agree with his conclusion that the appeal lacks merit and deserves to be dismissed. I therefore accordingly do same. I abide by the consequential order as to costs contained therein.

THERESA NGOLIKA ORJI-ABADUA J.C.A.: After perusal of the leading judgment of my learned brother, Abiru, J.C.A., I am equally of the opinion that this appeal is devoid of any merit and ought to be dismissed. I hereby dismiss the same and I abide by the costs awarded therein.

Appearances

L. G. WaziriFor Appellant

AND

Celestine D. Anwayi with J. F. PoyisFor Respondent