IN THE COURT OF APPEAL KADUNA JUDICIAL DIVISION HOLDEN AT KADUNA
BABA ALKALI BAABA JUSTICE, COURT OF APPEAL
AMIRU SANUSI JUSTICE, COURT OF APPEAL
ABUBAKAR ABDULKADIR JEGA JUSTICE, COURT OF APPEAL
1. DAN MAISHANU APPELLANTS
2. ILIYA DANYAYA
3. HARUNA MATO
4. NABABA DAUDA
5. MAGERI DOLE
6. MUNKAILA TUDUN WADA ANCHAU
7. DAN ASABE KASUWA
8. BULUS MAI YAMMA
9. DAN MARKE
YUSUF SARKIN ANCHAU RESPONDENT
(DELIVERED BY AMIRU SANUSI, JCA)
This is an appeal against the decision of the Kaduna State High Court sitting in its appellate jurisdiction in Zaria in suit No. KDH/Z/8A/2002 dated 17/1/2003 the lower court, wherein it affirmed the decision of the then Upper Area Court I G.R.A. Zaria (the trial court) in case No. CVFI/76/2000. The present respondent was the Plaintiff at the trial court while the nine appellants herein, were the defendants.
The facts which gave rise to this appeal are as follows:-
The appellants herein, are farmers living in three villages namely Kugawa, Dolle and Marmara in Anchau in Kubau Local Government of Kaduna State. The respondent is their village Head. The appellants prior to the institution of the suit before the then Upper Area Court I G.R.A. Zaria(herein after called the trial court), were in possession of various farm lands in the villages as individual family owners which they alleged to have inherited same from their respective parents or grand parents and were cultivating such farm lands. On 8/5/2000, the appellants as defendants, were sued at the trial court by the respondent as plaintiff, for trespass to the said farm lands which the latter clamed were possessed by him as the Village Head of the area where the farm lands were situate. At the trial, the plaintiff/respondent called four witnesses to prove his claim while the defendants/appellants called three witnesses for their defence and to prove that they owned the said farm lands. During the trial, the trial court visited the areas where the farm lands were located to ascertain the land in dispute.
It is the case of the Plaintiff/Respondent that the farm lands in dispute were possessed by him having inherited same from his father the Sarkin Anchau (Village Head) of Anchau and as such the parcels of land is a stool land which every incumbent or successor to that throne has possessory authority over. He also claimed that the defendants now appellants, being residents in his domain and as his subjects, were in that capacity given portions of the disputed farm lands on loan, whereby they and their parents or grand parents were paying tribute (gallah) on yearly basis to him and or his predecessors in title for the cultivation of the said farm lands.
According to the plaintiff/respondent, what triggered the institution of the suit by him at the trial court was that at one time the appellants/defendants sought permission to expand the farm lands given to them on loan which the plaintiff/respondent objected to, hence they stopped paying the usual yearly tribute to him for the cultivation of the said farm lands and subsequently claimed ownership of the said farm lands and even started to encroach on other portions of the area not allocated to them on loan earlier and continued to challenge the respondents/plaintiffs possession of the land. After the learned 3 counsel to the parties addressed the trial court, the latter found in favour of the respondent in its judgment, wherein it held as below on page 53 of the Record of Proceeding of the trial court.
I, Sanusi Dalhatu Upper Area Court Judge No. I G.R.A. Zaria, I am satisfied with the 4 Plaintiffs witnesses and only I admitted witness (sic) of the Defendants. Because of that I relied on the Plaintiffs witnesses and pass the judgment that the disputed farm land in Dole and Kugawa Village with the exception of their houses belong to the plaintiff being the village head of Anchau. The reason being that there should be peace between the plaintiff and the defendants. The court has adviced (sic) the Defendants that they should go and meet the plaintiff i.e. the Village Head of Anchau to again ask for permission to cultivate the disputed farm land being cultivated by them and on agreement as done at the past years. On behalf of the Defendants, the court is pleading in advance that incase the Defendants come pleading, it is hoped that the village Head will provide their need to enable each understand each other and to stay peacefully together.
The farm land conferred on the plaintiff has the following boundaries:-
1. North: Bounded by the old Zaria to Anchau Road
2. West: Bounded by the Kaduna State Government forestry
3. East: Bounded by the CFA of local Government
4. South: Bounded by Kugawa Stream (River it is a government forest, there is a drum (sic) there.
Aggrieved by the decision of the trial court, the appellants unsuccessfully appealed to the Kaduna State High Court (herein after called the lower court) in its appellate jurisdiction in suit No KDH/Z/8A/2002, which in a considered judgment delivered on 17/1/2003, dismissed their appeal and affirmed the decision of the trial court. Dissatisfied and further aggrieved by the decision of the lower court, the nine appellants further appealed to this court. The three grounds of appeal contained in their Notice of Appeal dated 11/4/2003, are reproduced below shorn of their particulars:-
1. The learned High Court judges erred in law when they held that the respondents case was supported by the weight of evidence in confirming the judgment if the Upper Area Court.
2. The learned High Court judges erred in fact and in law when confirming the judgment of the trial Upper Area Court Judge held that the Respondent as the Sarkin Anchau has authority over the land in dispute and the appellants were giving GALLA
3. The learned High Court judges erred in law when they held that they could not disturb the decision /judgment of the trial court.
Out of these aforementioned three grounds of appeal, the appellants in their Brief of Argument dated 8/4/2005 but deemed filed on 13/4/2005, identified two issues for the determination of the appeal which read thus:-
(a) Whether the learned High Court judges were right in holding that there was sufficient evidence led to show that the appellants paid tribute to respondent that the land in dispute was identifies (sic) and that the land was a Haraba.
(b) Whether their lordships were right in holding that they did not find any reason to disturb the decision/judgment of the lower court, in view of the non-existent of any law creating a Haraba and in view of the existence of Land Tenure Law Northern Nigeria 1962 and the Land Use Act 1978
The respondent on 11/5/05 filed his Brief of Argument dated the same date, wherein he proposed lone issue for determination, namely:-
Whether the lower court was right when it up held the decision of the trial court there being no reason to disturb same.
I will approach this appeal by being guided by the issues formulated in the appellants brief of argument as they are more encompassing and elegant. They will be considered serially.
Issue No 1
On this issue, the learned counsel for the appellants submitted that the respondent did not identify the land in dispute alleged to have been trespassed by the appellants through any evidence at the trial court or that any tribute was paid to him in respect of such land. He argued that although PWI stated that he saw Haruna paying N4,000.00 to the respondent for them to be allowed to cultivate the land, the said PWI said he did not know whether PWI paid the said amount as representative of the other appellants or defendants and that each of them was cultivating his own portion of land. He submitted that respondent did not prove against each of the appellants, the extent to which they committed trespass to any land as or the land he claimed and he said that the fact that a whole area was identified as the farm land was not sufficient proof. He applied the same reasoning on the testimony of PW2 that he once saw Dan Maishanu (1st appellant) paying tribute. He emphasized that there was no clear identification of the land given as loan and the area entered into as a whole as would justify the claim of the respondent as required the law that a claimant must establish and ascertain certain boundaries of the land in dispute. See Jason Umesie and others Vs. Hyde Ekpen young Onuaguluchi & others (1995) 128 CNJ 120. The learned counsel for the appellants also submitted that the evidence adduced by the plaintiff/respondent did not support his claim as his witnesses gave evidence which was at variance with his claim. He said while the respondents witnesses showed that he inherited the land from his father who was his predecessor in title in the area, the respondent himself claimed that it was his private land that was called Haraba which is a hausa word meaning a place reserved to strangers in hausa Land. The learned appellants counsel also submitted that the claim before the lower court by the plaintiff/respondent against the defendants/appellants was simply of trespass, hence the trial court was wrong to have declared the entire settlement to the respondent except of course their houses. He thereupon submitted that the respondent failed to prove his claim to entitle him to judgment. See Jason Umesie Vs Omeagulachi & Ors (1995) 12 SCNJ 120.
In a further submission, the learned appellants counsel argued that the plaintiff/respondent had the burden to prove his case and it is not the duty of the court to make a case for him, adding that burden of prove never shifts. See Omobormola II Vs. Military Governor Ondo State & Ors (1998) 12 SCNJ 192 at 194 -195; Aliwejo Efetiroroje & 2 Ors Vs. Honome Okpalafe & 2 Ors. (1991) 7 SCNJ 85. He finally urged this court to re-evaluate the evidence adduced by the parties and consider the evidence of giving possession to the appellants and the fact that the respondent had not been cultivating any portion of the lands within the disputed area and thereby reverse the decision of the two lower courts. See Yiola Maskele Vs Dimbriwe Silli (2002) 6 SCNJ 35/at 352.
Replying to the learned appellants counsels submission supra, the learned counsel for the respondent argued that even though the plaintiffs/respondents claim at the trial court was that of trespass, the defendants/appellants having denied the plaintiffs allegation also claimed the ownership of the deputed land. This is therefore how title to the said land became an issue. This also necessitated the plaintiffs/respondent with the burden to prove title over the disputed land as a whole. See Adebayo Vs. Ighodalo (1996) 5 SCNJ 23 at 33. He again submitted that the issue of payment of tribute was adequately proved by his client through his witnesses. I.e. PWS 1 3 at pages 12 24 of the Record of Proceedings and their pieces of evidence were not challenged or contradicted during crossexaminations. See Eigbejale vs. Oke (1996) SCNJ 496 at 64.
On the issue of identity of the disputed land, learned respondents counsel submitted that the issue of identity was never in dispute and this should not have been raised at this stage. This is because both parties agreed as to the identity of the disputed land when the trial court read to them the report of its visit to the locus- in quo which said report on the identity of the land, tallies with the testimonies of the plaintiffs/respondents witnesses. He further submitted that the appellants as tenants of the respondent before the case at trial court, having radically challenged the title of the respondent, have legally speaking, forfeited their right (if any) to remain on the land. It therefore became necessary at that stage, for the plaintiff/respondent to prove better title which he did. See Ogun Vs. Akunyelu (2005) Act FWCR (Pt. 243) 601 at 619/620 paragraphs DE and A. He also submitted that the lower court was right to have also rejected the testimonies of DW1 and DW2 for being contradictory in their nature.
In a further submission, the learned respondents counsel argued that although the plaintiff/respondent can not rely on the weakness of the case of the defendants in a claim for declaration, the plaintiff/respondent can however take advantage of evidence given by the adversary, if it is in his favour. See Ochendu Vs. Ogbori (1994) 4 SCNJ N64 at 87. He further submitted that the testimonies of plaintiff witnesses were consistent as to the boundaries of the disputed land and or possessory right of the plaintiff/respondent derived from his predecessor to the throne, hence he urged us to affirm the decision of the lower court. He finally urged that the first issue be resolved in his clients favour.
As shown on page I of the Record of proceedings, the plaintiff now respondent, clearly stated in his PLAINT that he was suing the defendants now appellants, because they trespassed into my private place (Haraba) and they were cutting some trees in the private place without my consent, they were intending to turn it to a farm land. He went ahead to give the description of and location of the disputed land. In response to the plaintiffs claim, the defendants now appellants in their statement of defence denied the plaintiffs claim and stated that the said area belongs to the defendants which they inherited from their grand fathers. See pages 1 to 2 of the record. With this development therefore, the plaintiff had a duty to prove that the defendants have actually trespassed into the land. On the other hand since the allegation of trespass no the disputed land and also claim ownership of same, they are in another way making a fresh counter claim of declaration of title to the disputed farm land.
In order to maintain an action for trespass to land the plaintiff has onerous duty to show that he was in possession of the land. See Makanjuola Vs Khalil (1958) SCNLR 193; Uchendu Vs Ogbomi (1994) 4 SC (pt. II) 1. In the instant case, there is sufficient evidence showing that the plaintiff (now respondent) by virtue of his position as the village head of the disputed area, had inherited the disputed private land (Haraba). All his witnesses testified to that effect especially PW4 who as a forest guard who at one time worked in that area supervising the government forest reserve bordering the disputed farm lands. The two lower courts are in my view correct in making that concurrent 12 findings . On the other hand, the 3 witnesses called by the appellants/defendants contradicted themselves on their claim that they owned the disputed area. Similarly, the unchallenged evidence of the plaintiff witnesses with regard to the payment of tribute in cash and in kind was unassailable and for that reason the lower court was right in accepting or affirming the trial courts finding. Such payment of tribute (Galla) is also admissible evidence showing that the defendant appellants knew that the farm lands which they were cultivating did not belong to them.
With regard to the identity of the land, I think that is a non-issue to be raised here. The plaintiff in his plaint clearly describe the area demarcated as his Haraba. All his witnesses had adequately described the area in line with the description given in his plaint. Also, the trial court visited the disputed land in the presence of both parties and their respective counsel and on resumption for the continuation of its proceedings, it read its report stating the description of the land and its location and both parties and their counsel agreed as to the identity of the farm lands in dispute. It is well settled law, that in claim of this nature the plaintiff must prove the identity of the land failing which his claim must collapse. See David Eleh &Ors Vs. Onyebuch Gbake Anyedike (1999) 5NWLR (pt 603) 454; Dike & Ors Vs. Okolo dede & Ors (1999) 10 NWLR (pt 623) 359 at 377. I am mindful of the fact that issue of identity of a disputed land must be ascertained with certainty. See Umesie & Ors Vs. Omaghluchi (supra). As I said above, in the instant case the identity of the land the plaintiff claimed to have been trespassed by the defendants/appellants was not only duly ascertained but also admitted by the defendants and it therefore requires no further proof at all. See Ogun Vs. Akinyelu (supra). The three witnesses called by the defence on he other hand, gave contradictory evidence on the identity of the disputed land and such contradiction is manifest in the testimony of DW1 on pages 25-32 of the record which is at variance with the testimony of DW2 on pages 29 to 30 (lines 8-11) of the printed record. Conversely, the plaintiff witnesses gave full description of the boundaries of the land in question. They also gave the root from which the plaintiff derived his possessory right over the land in dispute, namely, by way of inheriting same from his predecessor in rulership of the area. The learned counsel for the appellants in his Brief of argument at page 5 raised the issue that the claim of the respondent was founded on trespass but the trial court declared title of the entire settlements to the respondent except the houses of the appellants and this finding he said was a dangerous trend. I think this argument is of no moment. This is because, it was not raised in any of the grounds of appeal contained in the Notice of appeal. It therefore ought not be raised in any of the issues for determination formulated by the parties since it is not covered by any of the grounds of appeal filed. I will therefore not address that point.
Having considered the evidence adduced in the case, I am firmly of the view that sufficient evidence abound establishing that tribute (galla) used to be paid to the plaintiff by the defendants both in cash and in kind as confirmed by the plaintiff witnesses. It had also been established that the land used to be a Haraba or private land held on trust by the plaintiff which he inherited from his predecessor in title, which was also held in trust for allocation to strangers coming to his domain. Such area was also duly identified and satisfactorily described by the witnesses called by the plaintiff in their testimonies which were not assailed or contradicted during crossexamination by the defendants. This issue is therefore answered in favour of the respondent and against the appellants.
On this issue, it is submitted by the appellants counsel that the plaintiff/respondent lacked locus standi to institute the action before the trial court. He argued that by the provisions of Section 2 (b) of Land Use Act 1978, there is no land created for any individual person to vest the person with power to allocate or revoke the ownership of right of another person, if he is already having a right to that land. He submitted that as Chief of Anchau, he had no private land on which the appellants have trespassed. He said the concept of Haraba as raised by the plaintiff as his root of title is according to the learned appellants counsels not backed by any law, hence the two lower courts were wrong in their findings in that regard. He said there was no evidence led to show that such place existed in Anchau other then the opinion of witnesses who are ignorant about the history than the land. He denied that the respondent is the owner to the disputed land having not satisfied the definition of ownership given by the Supreme Court in the case of Fagunwa Vs. Adibi (2004) 17 NWLR (pt 903) 544 at 16 548/549. He further submitted that the decision of lower court is perverse and has occasioned miscarriage of justice. See Okene & 2Ors Vs. Orianwo & Ors (1998) 9 NWLR (pt 566) 408 at 414.
The learned appellants counsel further argued that there is no law creating or backing the system of land ownership by traditional ruler known as Haraba. He also argued that the said system of land ownership merely came into being during the reign of the present respondent. He said for a customary law or practice to be valid and applicable, it must be codified and notorious. See Iheanacho Vs. Chigere, (2004) 17 NWLR (Pt.90) 130 at 135. He finally prayed that the judgment of the lower court should not be affirmed by this court, but instead, it should be set aside.
I think it is pertinent at this stage to emphasis that the gravamen of the suit instituted before the trial court strictly speaking, pertains to allegation of trespass on the disputed land committed by the appellants when they were alleged to have entered into the land and were cutting trees therein. This, to my mind, is what triggered the commencement of the action by the plaintiff at the trial court. Although the witnesses referred to the land as Private that did not or can not be understood to mean that it personally belonged to him as the Village Head or that it was personally owned by him to the exclusion of any person. Rather, evidence was led to show that the plaintiff/Respondent merely had possessory power or right over the land in his capacity as the traditional ruler or Village Head who inherited the throne from his father. My understanding of the position of the disputed land is that whoever succeeds the plaintiffs stool will also be the custodian of the land in question. Even though the provisions of Section 2 (b) of the Land Use Act provides that all lands situate in area designated as ?non-urban area, are under the control and management of local government, that does not mean that a traditional ruler in the area or
Sarki could not supervise and control the land in dispute. It should also be noted that in his suit at the trial court, he is complaining of trespass on the land in dispute and is not transferring or revoking any land allocated to anybody by the competent authority. I think even though the local government controls or manages such land, it can only do so through its representative and the plaintiff/respondent here in this situation can be regarded as its representative who is saddled with the responsibility of overseeing the land in his domain on behalf of the local government. By his action, the Plaintiff/Respondent cannot therefore be regarded as being the exclusive owner of the disputed land in the real sense. The case of Fagunwa Vs Adibi (supra) is therefore of no relevance in this instant case. Now, as custodian of the land in question by virtue of his position as the Village Head of the area the disputed farm land is situate, I feel it will not be correct to say as suggested by the learned counsel for the appellants, that the plaintiff/Respondent had no locus standi to complain, against act of encroachment or trespass committed on the land which was original regarded as Haraba or by whatever name or status it is called. The Defendants/Appellant could not also establish at the trial court that they got the consent of the constituted authority that owns the land or prove through credible evidence that they really and genuinely inherited same from their parents or grand parents as they claimed. They therefore failed to prove better title to the land. Evidence equally abound that they used to pay tribute to the plaintiff for them to be permitted by him as custodian of the land so as to be allowed to cultivate the land. To my mind, the fact that the plaintiffs predecessor (s) did not insist in collecting the tribute (galla) could not be a valid reason why the plaintiff, (the current custodian) should not be collecting such tribute and that should also not be a license or reason for them to now claim that the land belongs to them or was inherited by them without adducing credible evidence in that regard. On the issue of proof of existence of Haraba concept, all the four witnesses called by the Plaintiff/Respondent have established that the disputed area had for time immemorial been regarded as Haraba or communal land held or possessed by the ruler and meant to be loaned to strangers in the area to cultivate and such system was even in existence before the advent of Land Use Act 1978. The PW4 particularly, as a forest guard (Sarkin Daji) has in his testimony confirmed that the disputed area had been demarcated as a Haraba. The lower court is therefore right in affirming the decision of the trial court in its finding in that regard or in not disturbing the decision of the trial court. I therefore hereby also resolve this second issue against the appellants and in favour of the respondent.
Permit me to state here, that the trial court has duly evaluated the evidence adduced at the trial, before it acted on it and arrived at its decision. It had the opportunity of seeing, hearing and assessing the witnesses called by the parties and had justifiably evaluated the evidence adduced before it. On its part, the lower court had also considered the decision of the trial court before it affirmed same in the light of the evidence relied and acted on by the trial court. As an appellate court, I can only disturb or interfere with finding of fact of a trial court where the trial court failed to evaluate the evidence or make proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted evidence or where the finding of the trial court is shown to be wrong, perverse in what is not supported in evidence before the court. See Eigbejale Vs Oke (supra). In the present case, I have seen no acceptable circumstance shown as would warrant me to interfere or disturb the findings of the two lower courts. Therefore, I decline to accede to the request by the learned counsel for the appellants that I should disturb such findings or reverse the decision of the lower court.
In the result, the appeal fails, as it is unmeritorious. It is accordingly dismissed. The judgment of Kaduna State High Court of Justice sitting in its appellate jurisdiction in Zaria delivered on 7/1/2003 in suit No KDH/Z/8A/2202 wherein it affirmed the decision of Upper Area Court I GRA, Zaria dated 2/5/2002, is hereby also affirmed by me, I 21 make no order as to costs, so each of the parties should bear his or their costs.
AMIRU SANUSI, JUSTICE, COURT OF APPEAL
J. A. MADAKI Esq. with MANNIR SAMBO for the Appellants.
A.Y. MUSA for the Respondent.
COURT OF APPEAL NIGERIA