Akumba Adem V. Uchii Yakou & Ors (1997)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A
The appellant was the plaintiff at the Grade 1 Area Court of Gboko. He claimed from the respondents (as the defendants) for the ownership of a piece of land and damages for the oranges and locust beans on the said land. The parties are hereinafter described as ‘plaintiff’ and ‘defendants’ which is the description they bore before the trial court at Gboko. The trial court gave judgment in favour of the plaintiff on 15/7/87. The defendants appealed against the judgment of the trial court. The Oboko High Court (Coran Hwande and Onum JJ) in its appellate jurisdiction heard the appeal. On 2/4/93, in its judgment the lower court reversed the judgment of the Area Court and dismissed the plaintiff’s case.
The plaintiff has brought this appeal against the judgment of the lower court. The plaintiff filed eight grounds of appeal. In the appellant’s brief the issues for determination were identified as the following:
“1. Whether or not the lower court properly evaluated the evidence on record before it allowed the respondents’ appeal before it.
- Whether or not the lower court was right in placing reliance on Section 146 of the Evidence Act Cap 112 Laws of the Federation 1990.
- Whether or not the award of N600.00 (six hundred naira) as damages to the appellant was arbitrary.”
The respondents’ issue for determination was formulated thus:
“Whether the appellate High Court was wrong in the circumstances of the case to have interfered with the decision of the trial area court Gboko and was wrong to have come to the decision it took?”
On 12th June 1996, the respondents filed a notice of preliminary objection wherein they contended that the 2nd, 7th, 8th and 9th grounds of appeal were incompetent. The respondents in their brief raised arguments in support of their preliminary objection. The appellant did not file a reply brief. Neither did he in any way react to the notice of preliminary objection filed and the arguments canvassed in support thereof. The result is that I now consider the preliminary objection without the benefit of an input from the appellant. The grounds of appeal in respect of which objection has been filed are 2, 7, 8 and 9. They read thus:
“2. The High Court of Justice of Benue State sitting in Gboko in its appellate jurisdiction did not properly evaluate the evidence on record before it in arriving at its decision to dismiss plaintiff’s case.
- The High Court of Justice of Benue State holden in Gboko in its appellate jurisdiction, misdirected itself on the facts in holding that the decision of the trial Grade 1 Area Court Gboko, which it overturned, was not supported by the evidence and consequently in dismissing the case of the plaintiff before the trial Grade 1 Area Court, Gboko, and this occasioned a miscarriage of justice.
PARTICULARS OF MISDIRECTION
(a) Contrary to the decision of the appellate High Court there was evidence from the records as to the age of the trees planted by the plaintiff on the land, the subject of litigation;
(b) There were from the records, equally evidence as to:
(i) the length of time plaintiff developed the land;
(ii) where the defendants left the land to, and
(iii) the reasons for defendants leaving the land.
(c) The case for the plaintiff was based on inheritance.
- The appellant High Court of Benue State sitting at Gboko erred in law when it relied on Section 146 of the Evidence Act in holding that in the absence of any credible rebuttal evidence from the respondent, the proper order should have been one dismissing the claim for declaration of title before the trial court and this error in law has occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) The trial court did not find the respondents in possession throughout its judgment;
(b) The High Court of Benue State held that the appellant’s case as to his title over the disputed land was contradictory.
(c) Section 146 of the Evidence Act is inapplicable in trials before Area Courts, such as the trial Grade 1 Area Court G Gboko.
- The appellate High Court of Benue State sitting in Gboko misdirected itself on the facts in holding, that the award of N600.00 as damages in favour of the appellant was arbitrary.
WHEN:-
(a) Plaintiff’s claim of damages before, and award same to him by the trial Area Court, was not for trespass to land but specially for loss of orange fruit and locust bean seeds removed by the defendants, and not denied by the latter.
(b) Defendants before the trial Area Court neither counterclaimed for title to the land nor did they contest the issue of damages aforesaid.
(c) The award of six hundred naira (N600.00) against the defendants was not in excess of what was claimed by the plaintiff. And, this misdirection consequently affected the justice of the case and led to a grave miscarriage of justice”.
The respondents’ objection in relation to the 2nd ground of appeal is that the ground has not stated the nature of the complaint state i.e whether it was an error in law or a misdirection in law or on the facts as required by Order 3 Rule 2(2) of the Court of Appeal Rules. Further, the particulars of the complaint were not stated. I have read the 2nd ground of appeal closely. It seems to me that it is simply a complaint against the lower court as to the treatment that that court accorded to the evidence before the trial court. It is in every way the same as the omnibus ground of appeal. This no doubt explains the absence of any particulars thereunder. The ground of appeal is a duplication of the 1st ground of appeal. It is liable therefore to be struck out. It is accordingly struck out.
The objection to ground 7 is that the particulars thereunder are unrelated to anything in the judgment of the lower court. Further, it was complained that the particulars supplied under the 7th ground of appeal are unrelated to the principal complaint in the ground. A complaint that a court has misdirected itself on the facts is another way of saying that the court concerned has misconceived or misunderstood the facts relevant to the adjudication such that it can be concluded that when the court came to its decision, it did so upon facts other than those truly relevant to the adjudication.
Properly understood, the complaint in the 7th ground of appeal is that whereas there was evidence before the trial court as to:
(1) The age of the trees planted
(2) The length of time the plaintiff developed the land in dispute.
(3) The reasons why the defendants abandoned the land.
(4) The inheritance of the land in dispute from his father – the lower court erroneously held that there was no such evidence. If indeed the lower court had made the error complained of it would amount to a misdirection on the facts. It would mean that the lower court misconceived the nature of plaintiff’s case as put before the trial court. I am satisfied therefore that the 7th ground of appeal is competent and valid.
The objection to the 8th ground of appeal is that the particulars thereunder are not valid. It was argued that the fact that the lower court relied on Section 146 of the Evidence Act cannot be a valid complaint since even if the Evidence Act is not applicable in the Area court it is applicable in the lower court. With respect, this objection misconceived. The lower court which sat on appeal over the judgment of the trial area court should only have applied the same law which the Area court could have applied. Another way of putting it is that the lower court should not call in aid any law which is not applicable in the trial Area Court. The complaint in the 8th ground of appeal is that the lower court was in error of law to have applied an enactment that is not applicable in the trial court. It is in my view a competent ground of appeal.
The objection against the 9th ground of appeal is that the particulars of misdirection given thereunder have no nexus or relevance to the ground itself. The trial court awarded N600.00 damages to the plaintiff in these words:
“The defendants to refund court fees to the plaintiff and to pay three hundred Naira (N300.00) each for plotting (sic) oranges and locust beans N600.00”.
The lower court on the other hand believed that since the plaintiff had in its finding failed to establish his title to the land before the trial court, he was not entitled to an award of damages. The 9th ground of appeal is a complaint that the lower court was wrong to have reasoned that the award represented damages for trespass: and that title was not claimed by the defendants. I am not at this stage concerned with the question whether or not the ground of appeal as framed will succeed. The question now is – is it a competent ground of appeal? I answer the question in the affirmative, and overrule the objection in relation to the 9th ground of appeal.
The objections to the 7th, 8th and 9th grounds of appeal having failed, the issues for determination as framed by the appeal must survive in view of my earlier statement that the 2nd ground of appeal is merely a repetition of the 1st ground of appeal.
I shall now consider appellant’s issue No. 1. The claim of the plaintiff before the trial court was recorded in the proceedings thus:
“CAUSE OF ACTION: The plaintiff claims from the defendant a piece of land, oranges valued N2,100.00 and locust beans valued N100.00”.
The claim, viewed from the sophisticated eye of a lawyer would appear to be one in damages for trespass. It could also be one for declaration of title and a claim for damages in trespass. The defendants not only denied plaintiffs claim, they asserted before the trial court that the land belonged to them. Clearly therefore, title was put in issue see Pius Amakor v. Benedict Obiefuna (1974) 3 SC. 67.
At the trial, the plaintiff testified thus:
“The disputed land is my land because I inherited the land from my father. It was the brother of the three defendants, Nyagba who was returning from a sojourn. It was my two uncles Usu Haaga and Zer Anji who showed the defendants brother Nyagba where to settle. After the death of Nyagba his children left the settlement to their area Mbajen-Mbayion while the 1st defendant and the other two defendants went to Mbatierev, while they were returning the defendants left the old settlement of his brother, Nyagba and settled across a stream called Ahura in my area. The first defendant again left the place and settled on a ruin of my brother Gur. The three defendants stopped paying tax to my area but they are paying tax to Mbayen his area”.
A portion of plaintiff’s evidence under cross-examination by 1st defendant is eye opening. The question and answer read thus:
“1st defendant to plaintiff: Do you remember my grand fathers and my fathers died and were buried on the disputed land?
Plaintiff: Yes, your late fathers were buried on the disputed land but you left the old settlement to settle on my uncle’s old settlement”.
Under cross-examination by 3rd defendant, the plaintiff said he had planted oranges and malina on the disputed land.
The case made by the plaintiff as may be garnered from his testimony reproduced above is that the land in dispute had belonged to his family but that two of his uncles or near relations granted the land in dispute to the defendants’ predecessor in title, Nyagba. However, when Nyagba died, his descendants including the defendants abandoned the land granted to Nyagba. The went to settle somewhere across Ahura stream. They stopped paying tax to the tax collectors in the area where the land is situate. Instead they paid tax to their home tax collector at Mbajen. It is to be observed here that the plaintiff did not give evidence as to how the land in dispute came to belong to his family. Further the plaintiff admitted that the graves of defendant’s ancestors were on the land in dispute.
The 1st defendant’s testimony as to how the land came to be his own goes thus:
“The disputed land is for me because I inherited the land from my forefathers. Three of my fathers died and were buried in the disputed land. There are two old settlements of my father and grandfather with malina trees and vambe trees. The plaintiff destroyed some graves and left some of them. The plaintiff also destroyed some malina. The plaintiff is harvesting my locus bean on the land. The plaintiff is eating the mango fruits and destroyed some of them. The plaintiff seized my land with his brother, Techemba when I refused; the plaintiff came and sued me to this court”.
In its judgment the Area Court said:
“We confirmed the plaintiff’s evidence during our inspection of the disputed land. The plaintiff has been developing the disputed land for more than twenty-five years since the three defendants have been away and up till now they remain in their sub-kindred Mbayen which is across a stream called Ahura.
There are abundant evidence that the plaintiff’s malina forest is on the old settlement of the father of the 1st defendant but the three defendants have left the old settlement for many years and even when they returned the defendants went and settled on their grandfather’s old settlement in their sub-kindred Mbayen beyond and across Ahura stream. The three defendants know fully well that their father’s old settlement which is the disputed land is not their sub-kindred that is why they abandoned the disputed land. It is this year that the defendants have remembered to cross the Ahura stream to farm on their father’s old settlement which has been developed by the plaintiff. The defendants elder Iordye Akule Akutso admitted during cross-examination that there is nobody from the defendant sub-kindred Mbajen who settle near the disputed land and that both the defendants and their father’s senior son had left the disputed land to their area, Mbajen. We actually saw some graves on a small portion of the disputed land belonging to the relations of the defendant, yet the three defendants have left the disputed land for well over twenty-five years undeveloped and we confirmed that the disputed land is not in the area of the three defendants and that is why when they returned from a sojourn they went and settled on their grandfather’s land in their sub-kindred and this has been also confirmed by the defendants’ elder, Iordye who is the eldest person in the area.
Since the plaintiff has established a malina forest, an orchard, cultivated yam farm and pepper farm on the disputed land and the said land is within his sub-kindred being controlled by him and his family, it will be wrong for the three defendants to leave his area Mbajen across Ahura stream to farm in the plaintiff area sub-kindred Mbazam. We therefore disbelieve the evidence of the three defendants and their witnesses but we believe the evidence of the plaintiff and his witnesses as well as the evidence of defendants’ elder, Iordye. We therefore enter judgment in favour of the plaintiff against the three defendants”.
In the extract of the judgment of the Area court reproduced above, it is manifest that the Area Court accepted that the land in dispute was in the possession of the defendants grandfathers and that the settlements on the land including the graves belonged to the defendants relations. The Area court however gave the land to the plaintiff on the excuse that the defendants had abandoned the land for twenty-five years during which period the plaintiff had developed the land. The Area court also reasoned that the land was in the area of plaintiff’s sub-kindred of Mbazam whereas the defendants were from Mbajen sub-kindred across Ahura stream. The plaintiff had explained how the defendant’s grandfather had first come to settle on the land in dispute. The plaintiff did not call any evidence to the effect that in their neighbourhood, if any land owner abandoned a piece of land granted to him for a number of years, the land reverted to the family of the grantors. The plaintiff did not also lead evidence as to any limitations attached to the grant made to the grandfather of the defendants. How then could the land previously vested in the defendants’ grandfathers revert to the ownership of plaintiff’s family?
The lower court which heard the appeal from the judgment of the area court made this remark at page 65 of the record of proceedings:
“These findings to our minds are extraneous to the evidence before the court. It may be recalled, as we noted earlier in this judgment that the respondent had testified before the court that when the appellants returned from where they had sojourned, they left their father’s old settlement to occupy the respondent’s land across Ahura stream. He did not throughout his evidence claim that he took over the land because it was abandoned or that the appellant’s brother gave him the land. He only made this assertion while cross-examining the appellants and their witnesses. Be that as it may, he created an ambivalence in his evidence that put his root of title in serious doubt”.
Section 146 of the Evidence Act Cap 112 (supra) provides as follows:-
“146. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”
“Having conceded that the appellants were in prior possession by their deceased relations, the respondent had the responsibility of proving how they became divested of title and how it became vested in him. Evidence of the respondent in this regard were (sic) contradictory. We agree with appellants’ counsel that Section 146 of the Evidence Act (supra) ought to have been invoked to revise a presumption of ownership in the appellant and that in the absence of any credible rebuttal evidence from the respondent, the proper order should have been one dismissing the claim for declaration of title before the court.”
Before this court, appellant’s counsel has argued that the lower court was wrong to have invoked Section 146 of the Evidence Act in favour of the respondents before us. I agree that the lower court was in error to have invoked Section 146 of the Evidence Act. The provisions of the Evidence Act are generally not binding on Native Courts. However, it is not every mistake made by a court that will lead to a reversal of the judgment of the court concerned. Such will only be the case if the mistake made by the court has led to a miscarriage of justice. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 and Idundun v. Okumagba (1976) 9 -10 SC.227.
In the instant, appeal, it seems to me that the appellant before us failed woefully to show how the land which he himself admitted was previously vested in the defendants’ family reverted to his (appellant’s) family. The lower court should simply have held that the appellant had failed to establish his case before the Area Court without invoking Section 146 of the Evidence Act.
This appeal has no merit. It is dismissed with N1,250.00 costs in favour of the respondents against the appellant.
Other Citations: (1997)LCN/0323(CA)
