Awua Adu V. Targbanger Mon (1998)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The appellant was the plaintiff at the Grade 1 Area Court of Katsina-Ala, Benue State where he claimed against two defendants of whom the present respondent was the second for declaration of title and an injunction in respect of a farmland. The parties testified before the Area Court and called witnesses. At the close of evidence, the Area Court inspected the land in dispute. Parties counsel addressed the court. On 25/4/94, the Area Court in its judgment made a declaration of title as claimed in favour of the appellant. The respondents were restrained from further trespassing on the land with effect from 31/7/94.

The 2nd defendant before the Area Court (and now the respondent) brought an appeal against the judgment of the Area Court before the High Court. The High Court in its judgment given on 20/6/95 did not interfere with the order for declaration of title made in favour of the present appellant (hereinafter referred to as the plaintiff). It however set aside the order that the respondent (hereinafter referred to as the defendant) should vacate the land.

The plaintiff has brought this appeal before this court on seven grounds of appeal as set out in the Notice of Appeal filed on 14/12/95. The plaintiff sought and obtained the leave of this court to appeal on 7/12/95. Time to appeal was also extended. The issues for determination in this appeal were set out thus in the brief of argument filed by the appellant.

“(1) Before setting aside the decision of the Area Court, did the High Court take into cognisance the fact that this being a decision of an Area Court, it had to examine the entire evidence to determine the real cause of action? .

(2) The Area Court having found that original title vests in the plaintiff/appellant and having made an order for ejectment/or forfeiture was the High Court right to have on the facts of this case set aside that order?”

The respondent formulated the issues for determination thus:

“(i) Whether having found that the respondent was an absolute grantee, it was competent for the trial court to have made an order of forfeiture and whether the court below was not right to have reversed the said order of forfeiture.

(2) Whether having failed to file a cross appeal or a respondents notice urging the court below to set aside the findings of the trial court contained on page 32 lines 2-23 or to confirm the judgment of the trial court on other grounds, it is now open for the appellant to challenge the said finding before the Court of Appeal.

(3) Whether the Court of Appeal can validly interfere with the priminary by the court below without a proper appeal before it and without a good cause shown.”

It is helpful to begin a consideration of the issues formulated for determination by an examination of the case put before the court of trial by the parties. In his evidence the plaintiff testified thus:

“The land is mine because I inherited it from my forefathers. My fathers who first settled on the land in dispute was Gbaaodo who farming (sic) thereon. Gbaaondo and Agbile took over the land. Agbile body was on this land when Gbannondo came there to settle…

The defendant is not my blood relation. I know Agbatyo Nor. He is the son of our daughter who delivered him at Usambe and we brought him back and kept him on the land in dispute. The defendant now claims this land on the ground that Abatyo is his brother.

Under cross-examination, the plaintiff said:

The graves of the defendant’s ancestors are not around my compound but his relations graves are there on my land for not too long, just four years ago. The relations of the defendants rested on my land while returning from sojourn at Shitle, died and were buried on my land.”

P.W.1 testified concerning how Abatyo came to be on plaintiffs land thus:

“Abatyo was born by our daughter at Usambe. Abatyo ran to us when he had a problem. We kept Abatyo at Mbanyam. Tsuuage kept Abatyo on Daakseer’s desolate compound. Tsuuage and Daakseer are the children of Gbaoodo. Abatyo’s brother named Girgi upon return from sojourn from Turan with his son Akuraga met Abatyo where he was settled. Abatyo died and kept Girgi on the land. Abatyo is buried where he was settled.”

P. W.2 also testified on the point thus:

“The defendant was not around but has come to the land under the auspices of Abatyo.”

The case made by the plaintiff and his witnesses in the extracts of their evidence reproduced above was that the land in dispute was settled upon by Gbaoodo, the plaintiff’s ancestor and that the land has descended in plaintiff’s family through plaintiff’s forefather to the plaintiff. A woman from plaintiff’s family was given out in marriage to a native of Usambe. The woman gave birth to Abatyo. Abatyo was allowed to settle on the land in dispute. The plaintiff claimed that the defendant was now basing his claim of ownership of the land in dispute through Abatyo. The plaintiff and his witnesses did not say that the land in dispute was granted absolutely to Abatyo. The plaintiff said: “We brought him back and kept him on our land.” P.W.1 said: Abatyo ran to us when he had a problem. We kept Abatyo at Mbanyam.”

The 2nd defendant on the other hand traced his title this way:

“I am not on the plaintiff’s land. The land in dispute belongs to me because I inherited it from my father, Nor Abojo inherited it from Nor. Igirgi inherited it from Abojo. From Igirgi it devolved on Akurage and finally me. Akuraga is my brother.”

It is apparent from the evidence of the 2nd defendant reproduced above that he did not base his claim of ownership on a grant from plaintiff’s family.

In its judgment, the Area Court held at page 32 of the record thus:

“For these reasons and for the fact that he, plaintiff proved his root of title by first settlement whereas the defendant did not state how he acquired his interest, we are inclined to believe the traditional history of the plaintiff and disbelieve that of the defendant intoto. The plaintiff is therefore granted title to the land he described.

The plaintiff’s have not qualified the grant they made to Abotyo Nor. We therefore hold that it was an outright grant. We believe the prosecution that the defendant lays claim to the land because he is related to Abotyo Nor. Abotyo is the son of Nor, the defendant traced his roots to Nor, the defendant Can therefore inherit Abotyo Nor and he has done so, we so hold. Suffice it to say that defendant is a successor of Abotyo Nor who was grantee of the plaintiff. The defendant has however misbelieved (misbehaved?) by challenging the title of his overlord and the consequence is forefeiture of the land and we so order. The defendant shall vacate the land by 31st-7-94 and should discontinue farming on the land henceforth as his claim has failed.”

One thing is remarkable about the passage reproduced above. The trial court held that the grant made by the plaintiffs family to Abotyo Nor was an outright grant. The trial court then went on to say that the defendant had misbehaved by challenging the title of his overlord. When the passage is read carefully against the background of the fact that the expressions under quote “outright grant” and misbehaviour by “challenging the title of his overlord” appear in the same paragraph, it is obvious that what the trial court must be understood to have said notwithstanding the use of the expression ‘outright’ is that the grant to Aboyto Nor was one in perpetuity subject only to good behaviour. The trial court could not in the context be taken to mean that the land was an absolute out and out gift to Abatyo Nor from plaintiff’s family. In any case the plaintiff and his witnesses never testified that a gift of the land in dispute was made to Abatyo Nor.

The lower court in its judgment said on the point:

“The trial court found as a fact that the land was originally granted by the plaintiff’s relation to the appellant’s lather. The court however, ordered forfeiture of the land on the ground that the appellant had asserted title to the land. The appellant was dissatisfied and has appealed to this court. Before us Mr. Tsobaza, learned counsel to the appellant has submitted that the trial court was in error when after finding that the grant to the appellant’s predessor was an outright gift, still went ahead to order forfeiture of the land as of the relationship that existed between the appellant and the respondent was that of landlord and tenant. We considered this point so weighty that we called upon Mr. Asemakaha learned counsel for the respondent to reply on that point alone. He was rightly in our view unable to offer any cogent reply. We are of the view that the point raised by Mr. Tsobaza is well-taken.

Having made an outright give sic, the reversionary title in the land was passed to the appellant’s predessor in title. There was nothing left in the respondent’s relation which could revert to them. The appeal succeeds on that ground and it is hereby allowed.”

With respect to their Lordships of the lower court. I think they were in error to have accepted that an outright grant with a qualification that the grantee must not misbehave as stated in the judgment of the Area Court, was the same thing as an outright gift without any reversionary interest in the grantor’s family. I think that the lower court ought to have read the expression ‘outright grant’ along with the qualification stated in the judgment of the trial court.

It is apposite here to mention that when dealing with matters of definition in relation to customary land tenure, a court cannot be too strict as one would while dealing with matters under English Law for instance. Our customary law developed independent of English words and phraseologies and attempts to classify them along the straight-jackets of the English language or sophisticated legal concepts always lead to injustice. It is much better to first understand the factual situations being given in evidence before attempting to classify them along the more well-known concepts. In customary land tenure, English words are merely a vehicle for conveying the concepts of our people in their inter-relationships in land matters.

In the instant case, if the lower court had read thoroughly the evidence in respect of which the trial court employed the use of the words ‘outright grant’ it would have discovered that the better approach was to read the words along with the qualification stated in the judgment of the trial court, that the grant was subject to good behaviour.

Further, I have always taken the view that a dispute is only settled when it is well-settled along the well established principles of justice and fairness. In this case, both parties traced their titles to different roots. The defendant claimed all through-out the hearing that he was the absolute owner of the land. It was the plaintiff who explained that the defendant came on the land through Abotyo Nor who was a son to a woman from plaintiffs family. The trial court found for the plaintiff and made a declaration to that effect. It pronounced that the defendant was a grantee of the land from the plaintiffs family. The lower court by stating that the plaintiff’s family had lost a reversion of the interest in the land was unwarily pronouncing that the plaintiffs family had made an absolute gift of the land to defendant’s predecessors, a point in respect of which neither the plaintiff nor the defendant testified. The outright grant of land is never to be presumed. It requires the clearest evidence. Kalu Obas; & ors v. Okereke Oti & anor (1967) NMLR 74.At the trial court defendant did not ask for a relief against forfeiture. He sought and lost the case on the basis that he was the absolute owner. It was a winner-take-all affair. To have allowed the defendant who did not acknowledge the overlordship of the plaintiff to remain on the land was to lave parties to resume their dispute in some other forms at a future date.

In the final conclusions, this appeal is allowed. The judgment of the lower appellate court is set aside and the judgment of the trial Area Court is restored. The appellant is entitled to costs in the lower court and this court which I fix at N500.00 and N750.00 respectively.

Other Citations: (1998)LCN/0436(CA)