Tyogbide Akulaku V. Ikyume Yongo (2002)

LAWGLOBAL HUB Lead Judgment Report

A. O. EJIWUNMI, JSC

The appellants were the Defendants in this action, which was commenced against them jointly and severally by one Usue Aga as plaintiff in the Upper Area court of Benue State in the Gboko Judicial Division holding at Gboko, for a declaration of title to the said land situate and lying at Mbaadeda of Yandev. The Appellant also filed a counterclaim against the said Usue Aga wherein they counter claimed (1) A declaration of title (2) An order of forfeiture and (3) Perpetual injunction in respect of a piece of land situate at Mbakumba, Yandev. At the Upper Area Court, Usue Aga testified in support of his case and called one witness. The Appellant, who were the Respondents in the court below, called three witness. The judge of the Upper Area court after hearing the evidence of the parties visited the locus-in-quo. At the locus in quo, further evidence was taken, and the court made some observations in respect of the evidence given during the course of visit to the locus-in-quo. Thereafter the Upper Area Court Judge gave a well considered judgment. By that judgment, the claim of the respondent was upheld and the counterclaim filed by the Appellant was dismissed and the court took the view that the Appellant had failed to prove their counter claim. The judge of the Upper Area court accordingly entered judgment for the Respondent and declared him to be the owner of the disputed land. He however made an order restraining the Appellant, their servant, agent and their privies from entering on the said land from the date of the judgment. The Appellants were dissatisfied with the judgment and order of the Upper Area court.

They appealed to the High Court of Justice, Benue State, Benue judicial division holding at Gboko. The appeal was heard by that court sitting in its Appellate jurisdiction (Coram A. Idoko C.J. and A. O. Onum, J). Whilst this matter was pending before the High Court, it was reported that the Respondent, Usue Aga who instituted the action against the appellant originally was dead. The present respondent, Ikyume Yongo was substituted for the deceased, Usue Aga. In that court, after argument of counsel appearing for the parties the court delivered a considered judgment which resulted in the success of the Appellants before that court. As the respondent was dissatisfied with the judgment of the High court aforesaid, an appeal was lodged to the court below. In the court below, the Respondent was successful as that court reversed the decision of the Gboko High court sitting in its Appellate jurisdiction. The Appellants were aggrieved with the decision of the court below they have now appealed to this court. Pursuant thereto, the Appellant filed five grounds of Appeal, which without their particulars read thus: (1) The decision of the lower court is against the weight of evidence. (2) The Court of the Appeal erred in law in affirming the decision of the trial upper area court, Gboko when the Respondent as plaintiff had woefully failed to identify the piece of land claimed with definite certainty and clarity as required by law and this led to the grave miscarriage of justice to the Appellants. (3) The Court of Appeal erred in law in affirming the judgment of the trial Upper Area Court, Gboko when Respondent (as plaintiff) woefully failed to prove his root title to the said land as required by law and this led to a grave miscarriage of justice to the Appellant. (4) The Court of Appeal erred in law in setting aside the judgment of the Gboko High Court in its PAGE| 3 Appellate jurisdiction on the ground that the said High Court “had clearly usurped the functions of the trial by ascribing credibility to the evidence of the witness who it had not seen and whose evidence the trial Court had implicitly rejected”, even the finding of the trial Upper Area court were obviously perverse. (5) The Court of Appeal erred in law in setting aside instead of affirming the judgment of the Gboko High Court (sitting on appeal) in favour of the defendant/appellant in respect of their counter claim; and this led to the miscarriage of justice to the appellant.”

Later, the parties filed and exchanged their respective briefs of argument in accordance with the rules of this court. The learned counsel who appeared for the parties adopted and placed reliance on their respective briefs namely, the Appellant’ brief, the respondent’s brief and the appellant’s reply brief. In the Appellant’ brief, the following are the issues identified for the determination of the appeal. Issue 1 (Ground 2) “Whether the Court of Appeal was right in affirming the decision of the trial Area court, Gboko when the Respondent as plaintiff failed to identify clearly by evidence the land claimed.” Issue 2 (Ground 3) “Whether the Court of Appeal was right in law in affirming the judgment of the trial Upper Area court, Gboko when the Respondent failed to proof (sic) his instrument of title to the said land.” Issue 3 (Ground 4) “Whether the Court of Appeal was right in law in setting aside judgment of Gboko High Court on the ground that the High Court had clearly usurped the function of the trial court by ascribing credibility to the evidence of witness.” Issue 4 (Ground 5) “Whether the Court of Appeal was right in law in setting aside the judgment of the Gboko High court when there was sufficient and unchallenged evidence in support of the Appellants’ counter claim.” For the Respondent, three issues were set out for determination in this appeal in the Respondent’s brief. They are as follows: 1. Whether the Plaintiff/Respondent proved his case at the trial court on the balance and preponderance of evidence and whether the Court of Appeal was right in affirming the position of the trial Court on the evidence so adduced. 2. Whether the Court of Appeal was right in the exercise of this power under Section 16, Court of Appeal Act (1976) when it re-evaluated the evidence of the Printed Record. 3. Whether the issue of counter claim was applied (sic) before the Appellate High Court, Gboko or the Court of Appeal. Though the issues framed by the Respondent are also worthy and deserve to be considered in the determination of this appeal, I will, however, in this judgment focus upon the issues raised in the Appellant’s brief for the determination of this appeal. Before considering the argument of counsel, a resume of the case presented by the parties at the trial would be given. Beginning with the Respondent, who was the plaintiff at the trial, he gave evidence that the land, which is in dispute, is situate and lying at Mbaadeda in Yandev. He claimed that he was living one side of Umatyough stream while the Appellants were living on the other side of the said stream. That stream, he alleged was their common boundary. This stream flows South to North. Looking at the stream from the direction of its flow, he stated that his compound is on the west of the stream, and the Defendants are on the east side of the stream. He also added that in the North, the disputed land stops at a natural gutter. And on its southern side, it shares a common boundary with Ioryen Atiker who is in the same area with the Respondent. In support of his contention that the land belonged to him, the Respondent stated that he inherited the land from his father.

He stated further that the old settlement of his father is still on the land. But he had moved a little bit further from that old settlement of his father. The Respondent added that he has been farming yam, rice and cassava. And that indeed, the old heaps or yam and or ridges for cassava etc., are still on the land. As he had always been in full possession of the land, the Respondent claimed that before they started to encroach on this land, the Appellants used to obtain permission from him to farm on the land. However three years before he instituted this action, the Respondents who are from Mbaakumba started to encroach on the land without obtaining his permission. He therefore claimed that he warned them several times to quit the land, moreso when he noticed that they started to mould blocks on the disputed land, though they never got to the stage of building houses on it. When he was cross-examined, Respondent admitted that Aga Bahi was his father, he also admitted Achagh Aga was his brother. He further admitted that when his father Aga died, Achagh inherited the disputed land. And that at his death, he the Respondent inherited the land. The only witness called by the Respondent was Tijimie Adabom, from Mbaadeba. This witness stated that he knew the parties. He then added that the land was inherited by the Respondent from his father. He claimed that the Respondent planted bananas on the land before the Respondents entered into the disputed land. PAGE| 4 For the Appellants, Tyogbide Akulaku, a farmer, was the principal witness. He stated that the land in dispute is not situated in Mbaadeba but in Mbaakumba and claimed that they farmed and shared common boundary with the Respondent. And at its Northern end of the disputed land, their land stops at Unyakum stream. Appellants claimed that they also farm there and share common boundary with Mbamkor people. In the South, the land extends to the farmland of Mdeda people, where they share common boundary with Iorye Antura at Hon on the road from Ugba to Aparmunbu. The land which he claimed starts from the east extends to the road from Gboko to Apeinumbe. It is then claimed by the Appellants that the Respondent trespassed into their land at the west of the disputed land where he built his compound. He also planted oranges on it and had also given a portion of the land to his brother who has also planted oranges and built his compound thereon. The Appellants, also, by virtue of the evidence of DW1, Tyoghide Akulaku, gave traditional evidence to prove their claim to the disputed land. In this respect, evidence was given that the land belonged to their forefathers, and that their ancestor, Akem Igia was the first man to settle on the land. After his death, his son Swende took over the land. After Swende’s death, Amune took over. He was described as a very big man in his days and also the family head at the time. The witness continue by saying that when the Tombo people were going with Achagh Aga, their maternal relation, Akume received him and showed him a place to settle.

It is claimed that Achagh Aga is the brother of the Respondent as he was present when Achagh was received by Akune and showed a place to settle. When cross-examined, DW1 admitted that the Respondent planted malina trees in his compound about ten years old. And he further admitted that apart from the Respondent, there were no other persons from Mbaadeba on this disputed land. Before the judge of the Upper Area Court delivered his judgment, he visited the locus – in – quo. And in the presence of the parties and their lawyers, evidence was taken from witnesses with regard to the area visited by the court. The court then made observations during the visit to the locus-in-quo. They read thus: “1st observation by Court: The malina trees claimed by Defendant are about eight years old.” Before the 2nd observation was made, the following evidence given by the Respondent and DW1 were recorded thus: “P1: The compound belongs to kembo Indev. He was placed here by his age-mate. He is from Mbaakumba, but he is settling on the land of Mbaadeba. He is paying tax to Mbaakumba. Def: This is my compound across Unyatyum stream at the East. This is another one across the stream at the West. Observation: The two compounds are outside the land claimed by the Plaintiff.” And after receiving evidence from the Respondent and DW1 with regard to the location of the land in dispute and who was in possession of the land, the Court made the following observation: “The disputed land is partly farmland and two compounds of the plaintiff and his relations. The plaintiff’s compounds an old compound (sic). It has three groves one is cemented. The defendants have yam farms on the north of this land. The defendants have planted malina trees along a line from East to West about 50 meters (sic) away from the plaintiff’s boundary at the North.” The judge of the Upper Area Court, as previously observed, delivered his judgment wherein he upheld the claims of the Respondent, and dismissed the counter-claims of the appellants to this appeal. The Appellants who lost, and as earlier mentioned, then appealed to the Gboko High Court, sitting in its Appellate Jurisdiction. As they succeeded in that Court, there was a further appeal by the Respondent in this appeal to the Court below. The present Appellants have now appealed to this Court. In upholding the appeal of the Respondents in this appeal, the Court below formed the view that the Gboko High Court wrongly set aside the judgment of the Upper Area Court Judge. It is against that judgment that the Appellants have now appealed. The issues raised upon the grounds of appeal filed have been set out above. They will now be considered. However, though as earlier noted, four issues were identified for the determination of this appeal, the merit of this appeal depends principally on whether the Court below was wrong to have held that there were no contradictions in the evidence led by the Respondent in support of his claim to the land, and secondly whether the identity of the disputed land was duly established by the Respondent.

I will consider first the question as to whether the identity of the land was duly proved. The learned counsel for the Appellants examined this question by referring to the general principle pertaining to declaration of title to land. It is, as he argued, well settled that before a declaration of title to land can be granted, the finding of the court has to pass the acid test. This acid test which has also been well settled is whether the land, the subject of the declaration can be ascertained with “definitive certainty”. See Arabe v. Asanlu (1980) 5-7 S.C. 78; Epi v. Aigbedion (1972) 10 S.C. 53. The learned counsel for the Appellants then referred to the evidence on record for the Respondent to argue that the Respondent failed to pass this acid test. It is submitted further that the Court of Appeal failed to properly consider the Respondent’s evidence in chief and under cross examination, and also the evidence of the Respondent’s witness which lacked clarity and precision as to the area claimed by the Respondent as the land in dispute. It is therefore submitted for the Appellants that the Respondent failed to discharge the burden on him to prove with certainty the identity of the land that formed the basis of his action.

In his reply to this issue, learned counsel for the Respondent in the Respondent’s brief considered together the argument with regard to the identity of the land, with whether the Respondent established his root of title to the disputed land. Though it is his submission that the questions raised be resolved in favour of the Respondent, I will consider first the question as to whether the identity of the disputed land was proved with certainty to justify the claim of the Respondent. In asking for the resolution of this question in favour of the Respondent learned counsel for the respondent referred first to the various pieces of evidence given by the Respondent and his witness. Then he argued that the pieces of evidence so given by the Respondent and his witness in support of the case for the Respondent are not contradictory and inconsistent with each other.

Then he submitted that the Upper Area judge arrived at the right conclusion in upholding the claims of the Respondent. And then went on to argue that it was the Gboko High Court, sitting on appeal that fell into error in reversing the judgment of the Upper Area Court. He concluded his argument by contending that the Court below was right to have reversed the judgment of the High Court sitting in its appellate jurisdiction and restored that of the Upper Area Court. I have earlier in this judgment set out the relevant parts of the evidence of the witnesses to this appeal. In view of the contention made by learned counsel to the parties I will now set down the findings made by the Upper Area Court Judge, in the course of his visit to the locus-in-quo with regard to the identity of the land. In the course of his judgment, the Upper Area Court then said at page 55, thus: “At the end of their evidence, the Court visited the disputed land for inspection. The court was taken round the disputed land by both parties. The land is bounded at the East by Unyatyu stream in the West by the motorable road Yandev to Buruku road to Apemumbu. In the South from Malina and nune tree on Apemumbu road down east to Unyatyu stream. In the North the land extends by inheritance, by grant or by sale.” And at page 57, he also made the following findings, which read:- “At the locus; the Court was only shown the compounds of the plaintiff and his relation on the disputed land. The compounds of the defendants are across the Unyatyun stream. I find the natural boundary between the Plaintiff’s farms and defendants farm is at Unyatyun at the East. The 1st defendant stated that when trouble started over this land between him and Ikume Iyongo the elders came and created a demarcation between them at Nune tree at the North. They were all satisfied. This is the nune tree the plaintiff showed at the West near the road to Apemumbu down East to Unyatyun to be boundary with the defendants. I find that this is their natural boundary at Nune tree flowing a gutter down to Unyatyum stream. At the West the land is bounded by the road to Apeinumbu. In the South the boundary is at Malina and nune tree near Apeinumbu road down east to Unyatyum stream.

I find that the plaintiff’s father got this disputed land by settlement and the plaintiff inherited it from him after his death.” It would appear from the above passages from the judgment of the Upper Area Court, that the identity of the land in dispute was carefully set down having regard to the evidence led before the court during the trial and also during the visit of the Court to the locus-in-quo. But the High Court sitting in its appellate jurisdiction considered that the contradiction in the evidence of the Respondent and his witness did not support the above findings of the Upper Area Court. The High Court therefore in its judgment held that if the trial court had properly adverted its mind to the unchallenged evidence of the 1st Appellant which was adopted by all the other witnesses for the Appellants, it should have come to the conclusion that the Appellants proved their counterclaim by preponderance of evidence. In this appeal, it is still the contention of the Appellants that the evidence of the Respondent and his witness are conflicting and contradictory. It is therefore necessary to now consider whether that contention of the Appellant is sustainable havng regard to the judgment of the Court below.

It is after the judgment of the Court below has been considered that the question as to whether the identity of the land was properly established at the trial by the Upper Area Court judge would be determined. The Court below as I have already stated, set aside the judgment of the High Court. The reasoning of the Court below per the judgment delivered by Oguntade JCA that led to the reversal of the judgment of the High Court deserves to be set down in this judgment as the alleged contradictions in the evidence of the Respondent and his witness were carefully analysed in the course of the judgment. The relevant portion of which reads:- “We notice that at page 22 of the record, the trial court without considering these contradictions concluded that the respondent established his root through traditional history just like the appellants. With this erroneous approach, the court concluded at page 22 that there was a conflict of traditional evidence between the parties and proceed to embark on what is called test by acts of ownership. Incidentally, the plaintiff’s compound, malina trees, mangoes which the court said were evidence of numerous and positive acts of plaintiff’s exclusive possession over the land from time immemorial were not mentioned in the plaintiff’s evidence. He made some efforts to identify new features at the locus-in-quo but the 1st defendant joined issues on the features. The parties were said to be present at the locus but only the 1st defendant is seen to have participated in the proceedings threat. At best the court found that both parties exercised possessory rights over the land.

We do not consider that the respondent proved any superior right to entitle him to a declaration of title over the land.” In the passage reproduced above, the Court below made three observations about the judgment of the Upper Area Court:- (1) That the contradictions in the case of the plaintiff were not considered. PAGE| 6 (2) That the Upper Area Court adopted an erroneous approach by deciding to test the evidence of traditional history against the recent acts of possession of parties. (3) That the plaintiff in his evidence did not mention his compound, malina trees and mangoes which the Upper Area Court later described as evidence of “numerous and positive acts” of plaintiff’s exclusive possession.’ With respect to the lower court, I do not agree with it in its critical views about the judgment of the Upper Area court. The contradiction which the lower court referred to were: (1) Plaintiff said he had no crop on the land while his witness P.W.1 said the plaintiff had bananas on the land. (2) When plaintiff said that the boundary between his land and the defendant’s was a stream and later again that the boundary was a natural gutter. (3) When plaintiff said that the defendant’s people were not on the West side of Untyugh stream which P.W.1 said that defendants’ people are on both sides of the stream. (4) Plaintiff said he inherited the land from his father. He later said that he inherited the land from Achagh.(5) There was no evidence of any relationship between Achagh and plaintiff’s father.’ Now, the plaintiff in his evidence in chief said:- ‘I have been farming yam, rice on this land. My old heaps and ridges for cassava on it.’ Under cross-examination, plaintiff said:- ‘Now, I have bamous (?) and my old soyabean farm on the land. I have no crops on the land.’ And in his evidence in chief said:- ‘The plaintiff had planted bananas on the land before the defendants came to farm on the land? Can the evidence of P.W.1 that plaintiff had bananas on the land be regarded as a contradiction of plaintiff’s evidence that he had not crops on the land? I think not. One would need to know whether the plaintiff, a farmer regarded bananas as crops to determine whether or not there was a contradiction. In any case plaintiff had said he had yam and rice on the farm. Are these crops or not? Clearly therefore there was no contradiction between the evidence of plaintiff and PW1 on the point.’ The Court below when dealing with whether the Upper Area Court correctly decided whether the Respondent established his right to the land, then considered the traditional evidence of the parties in that respect. The Court below then considered whether the High Court was right to have interfered with the conclusions and findings of the Upper Area Court upon the evidence before it. I would again set down the reasoning and observation of the Court below on the matters raised above. “As to the boundary of the plaintiff with the defendants, the plaintiff testified thus:- “I (sic) border with the defendants at the north at the natural gutter. Unyatyough runs beyond the natural gutter. I have boundary with the defendants at this natural gutter. The defendants have both farm land on both side of Unyatyough beyond the gutter. I produced earlier in this judgment a rought (sic) sketch of the land in dispute. This is in accordance with the evidence of the plaintiff. The sketch reveals that the plaintiff’s land borders the defendants on the north beyond the natural gutter and on the East across Unyatyough stream.

The defendants land extends northward across the natural gutter on the east of the stream and westward to the north of plaintiff’s land. It is only if one does not attempt to follow plaintiff’s evidence that one sees a contradiction on the point. The same explanation can be found for the evidence of the plaintiff when he said that the defendants Mbaakumba people did not cross the Unyatyough to farm on the Mbaakumba people did not cross the Unyatyough to farm on the west of the stream. PW1 later said that the Mbaakumba people were on both sides of Unyatyough stream. Obviously if one bears in mind that the plaintiff said he had a boundary with the defendant’s people to the north across the natural gutter, it would be easy to understand PW1’s evidence that the defendants’ people were on both sides of the stream. The presence of defendants’ people was only across the stream to north of plaintiff’s land. The evidence that plaintiff inherited the land from his father and later Achagh was seen as a contradiction. It was also said that the plaintiff did not establish his relationship with Achagh’. At page 13 and 14 of the record of proceedings under cross-examination, the plaintiff testified: ‘Aga Baki is my father. He had no wife by name Wanye. I knew Achagh Aga. He is my brother when Aga died, Achagh inherited the disputed land. Aga was on the other side of Umanyaugh stream with the plaintiff before he moved over to my stream. Achagh’s mother hails from Tombo. I inherited land in disputed from Achagh’. PAGE| 7 The above piece of evidence shows that both plaintiff and Achagh Aga were sons of Aga Baki. After Aga Baki died, plaintiff’s elder brother Achagh Aga inherited the land. When Achagh Aga died plaintiff inherited the land. The plaintiff was therefore correct to have said that he inherited the land from both his father Aga Baki and Achagh Aga his brother who had inherited the land before him. Did the Upper Area Court adopt the wrong approach in the treatment it accorded the evidence on traditional history? In Kojo II v. Bonsie (1957) 1 N.L.R. 1223 at 1226 Lord Denning explaining the best approach when dealing with evidence of traditional history said: ‘Witnesses of the utmost veracity may speak honestly but erroneously of what took place a hundred years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the fact in recent years as established by evidence and by seeing which of the two competing histories is more probable. This is how the native court approached the matter and their Lordships think they were right. The dictum above was given a trial interpretation by the Supreme Court in the case of Alade v. Awo (1975) S.C. 215 at 223. In the instant case, the Upper Area Court at 57 said concerning the evidence of traditional history given by parties:- ‘From these testimonies, I find that the traditional evidence by both parties conflict. The trite law is that where the parties evidence as to ownership conflict, the court is to test their evidence with acts of ownership.

This court should make reference to factual uses of the land. See the case of Are v. Ipaye (1990) 2 NLR (pt.132) page 299 at 311.’ ‘After saying the above, the Upper Area Court then proceeded to consider the evidence available as to acts of possession in recent years by the parties. On this scene the Area Court decided in favour of the plaintiff. It is my firm view that the Upper Area Court followed the right approach. Again the lower court opined that the plaintiff did not mention his compound, malina trees and mangoes in his evidence but that the Upper Area Court later described the presence of these as evidence of numerous and positive acts’ of plaintiff’s exclusive possession. At page 52 of the record, the Upper Area Court at the visit to the locus-in-quo recorded that the plaintiff said. “P1 – The compound belongs to Atoo Karse. My brother, he built the compound four years ago. This is my compound. It is an old compound. My land extends to this malina tree at the west along the road from Yandev to Apeinumbu. The boundary extends from this nune tree at the west to the east to another Nune tree down to Unyatyum stream. I am from Mbaakumba.’ ‘Unless the lower court had it in mind that the evidence given by parties at the locus was not to be regarded as part of the evidence before the Upper Area Court, it is difficult to understand why the lower court, held that the plaintiff had not testified as to his compound and malina trees. And in any case, the practice of visiting land in dispute which is very much in use in native courts adjudicatory system would be meaningless if native courts could not later make use in their judgments the observations they made on their visit to the locus.’

At page 79 in its judgment, the lower court concluded thus:- “Rather we see the plaintiff admitting at page 9 lines 1-2 that he inherited the land from Achagh. If the trial court had properly adverted its mind to the unchallenged evidence of 1st defendant which was adopted by all the defendants. It should have come to the conclusion that the defendants proved their counterclaim by preponderance of evidence. With respect to the lower court, it had clearly usurped the function of the trial court by ascribing credibility to the evidence of witnesses who it had not seen testify and whose evidence the trial court had implicity rejected.” As I have already said above, the court below then quite properly reversed the judgment of the High Court for the reasons inter alia above. I find myself in entire agreement for the raison d’etre for doing so. By reversing the judgment of the High Court, the Court below therefore upheld the findings of the Upper Area Court and left undisturbed the evidence of the Respondent and his witness. It is evident from a careful perusal of the above passage that the Court below did not find the alleged contradictions in the evidence of the Respondent and his witness. The Court below therefore held that the High Court was wrong to have reversed the judgment of the Upper Area court.

SC. 70/1997