Adamu Audu V. Philibus Shedrack & Anor (2016)
LawGlobal-Hub Lead Judgment Report
JOSEPH TINE TUR, J.C.A.
I tagged this determination ?Decision? by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a ?decision? to mean, ?in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?Ruling? is omitted in the definition of ?decision? under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that, ?When the nature of things changes, the rules of law must change too.?
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of
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change. The question under review is whether changed conditions may deprive a case of its law-quality
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag this determination an ?opinion? or a ?decision? as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
?I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case, reason and good sense go hand in hand with the strict construction.?
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word ?determination? at pages 243-244 as follows:
?We gave careful consideration to the argument of
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Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ?ruling or determination? of the High Court was a judicial ?decision? or ?determination? within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
?In this Section ?decision? means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this Sub-section, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.?
More light is thrown on the meaning of the words ?decision? and ?determination? in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It
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means ?a bringing or coming to an end? or ?the mental action of coming to a decision,? or ?the resolving of a question.?
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that:
?(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court consisting of more
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than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this Section, the Supreme Court; or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sit for that purpose.?
Section 318(1) of the Constitution (supra) defines a ?decision? to mean, ?in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?ruling? is omitted from the definition of ?decision?. I have decided to tag this determination ?Decision? as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.
The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of ?decisions? or ?opinions? Justices of the Supreme Court or the Court of Appeal renders which constitutes the ?determination? of these
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appellate Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.
I shall now consider this appeal on the merit.
The Grade 1 Area Court sitting in Bokkos, Bokkos Local Government Area of Plateau State determined that the land in dispute belonged to the defendant not the plaintiff. The plaintiff proceeded to the Customary Court of Appeal, Jos where the decision of the trial Court was set aside in his favour on 31st March, 2014. Aggrieved by that decision Adamu Audu whom I shall now call ?the appellant? filed a Notice of Appeal on 13th May, 2014. The respondents who were the plaintiffs in the trial Court at Bokkos had stated their complaint against the appellant at page 2B of the printed record to be as follows:
?Plaintiff ? Court: I am in Court because the defendant has encroached into my farmland I inherited from my father and the farm is situated at Ratip under Manjin Tangur at
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Bokkos L.G.A.
That is why I am in Court to make him to leave my farm for me.
Court ? Defendant: Have you heard the allegation made against you, do you agree or not?
Ans: I do not agree because the farm land belongs to me.?
The respondents and the appellant founded their claims to the disputed land on inheritance. Inheritance means ?1. Property received from an ancestor under the laws of intestacy? 2. Property that a person receives by bequest or devise.? See Black?s Law Dictionary, 9th edition, page 853. In that case, each claimant had to establish his root to his first ancestors and show how they first came to acquire the land in dispute and how the land devolved from generation to generation to the claimants to be entitled to the decision of the Court. See Igbojimadu vs. Ibeabuchi (1998) 1 NWLR (Pt. 533) 179 at 190-191; Ohiaeri vs. Akabeze (1992) 2 SCNJ (Pt.1) 76; Udeze vs. Chidebe (1990) 1 NWLR (Pt.125) 141 and Ogunlaye vs. Oni (1990) 4 SCNJ 65 at 92.
PW1 (Sale Randong) testified and was cross-examined by the learned Counsel to the respondents. The following answers were elicited from PW1 at page
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6 lines 20 to page 8 lines 1-9 of the printed record as follows:
?Court ? Defendant Counsel: Any cross-examination?
Ans: We have some.
Q1: It true that the plaintiff and the defendant are relatives?
Ans: Yes they related.
Q2: It is true that the defendant and the plaintiff have maternal relationship?
Ans: Yes it is true.
Q3: The woman husband was married from the family of the defendant to the plaintiff?
Ans: It is true.
Q4: Do you know the name of the defendant?s mother?
Ans: I know is Ulamweh.
Q5: Ulamweh is a sister to the defendant father Audu Randong.
Q6: Where did the plaintiff inherit the land in dispute?
Ans: From their father.
Q7: Do you know the history of the plaintiff family in it?s entirety?
Ans: I know it substantially but not all.
Q8: Will you be able to remember what you said before the District Head of Bokkos when you were called to testify over the land in dispute?
Ans: I will remember I told Saf that the plaintiff?s mother is from the defendant?s family.
Q9: Do you know the decision of the District Head of Bokkos
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over the subject matter?
Ans: No I do not know.
Q10: You said you once heard this farm was once before the Ward Head of Manjin?
Ans: Yes I said so but I do not know the outcome.
Q11: Was the matter was discharged by the Ward Head of Manjin before it come before the District Head of Bokkos, the father of the defendant ? cultivate the subject matter?
Ans: I do not know.
Q12: Did you testify in this matter before this Hon. Court before the former panel?
Ans: Yes I did.
Q13: Do you know if the father of the defendant cultivated the subject matter after the matter has been disposed off by the District Head of Bokkos?
Ans: I do not know.
Q14: You do not know founder of the subject matter?
Ans: I do not know.
Q15: That means you would know if the founder is from the plaintiff?s family or the defendant.
Ans: I do not know.
Plaintiff Counsel: I have a re-examination.
RXX: the relationship between the parties is that which can warrant inheritance of land between them?
Ans: No it is not that type.?
Bitrus Maren (PW2) testified at page 8 lines 20 to page 9 lines 1-4 of
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the printed record as follows:
?Ans: I am also known as Bitrus Maren Maleshesh. I know the parties in this suit even though it is now I know the defendant but I know his father Audu Randong. I also know why I am in Court, I am in Court to testify over the land in dispute which I know is situated at Ratip under Mper Manjim under Manjim Tangur of Bokkos L.G.A. I know the land in dispute belongs to the 1st plaintiff who got it from his father Shedrack and Shedrack got it from his father Kamo and Kamo from his father Mahwel and he is the founder of the subject matter I have my land sharing boundary with the land in dispute by the East part from the North is River by the South by West Sale Randong by the North here is a small River Dam which is belong Philibus and Musa Mashat. I know the history of subject matter because I have been seeing the plaintiff cultivating it
Under cross-examination, the following answers were elicited from PW2 at page 9 lines 21 to page 10 lines 1-18 of the printed record to wit:
?CROSS-EXAMINATION BY COUNSEL TO DEFENDANT
Q1: Do you know the history of the plaintiffs? family very
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well?
Ans: I do not know.
Q2: Do you know whether there is any relationship between the parties?
Ans: I do not know.
Q3: Will you agree with me that you said concerning the history of the land on dispute was mere here say?
Ans: Yes I was told by my father.
Q4: Where is your father?
Ans: He died when I was 15 years old.
Q5: When did your father told you the history of the subject matter?
Ans: I was 14 years old.
Q6: Did he tell you so that you can give evidence in Court?
Ans: He told me so that any time I was call upon to testify I will know what to say.
Q7: Did your father foresaw that there will be a problem in the future concerning the land in dispute?
Ans: Yes under probability.
Q8: The means there had been a pending problem over the land in dispute for a long time?
Ans: No there was none at that time.
Q9: Do you know how Sale Randong got his farmland were the founder?
Ans: I only see Sale Randong using the land.
Q10: What about Musa Mashat, how did he got his farm?
Ans: I do not know.?
The evidence of PW1 and PW2 is to be contrasted with that of
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Shedrack Kamo (PW3) who testified at page 11 lines 13-22 and page 12 lines 22 to page 14 lines 1-23 of the printed record as follows:
?Ans: I know them as well as the defendant and I also know the defendant?s father. I also know why they are in Court, it is for the issue of farmland which is situated at Ratip and there Gadina, Malmo, and a Dam it is at Ratip, Tangur Ward Village. The farm in issue belongs to 1st plaintiff because I was the one who gave him and I got the land from my father Kamo and my father Kamo from Mahwel and Mahwel was the 1st who cleared the subject matter, the 2nd plaintiff is my senior brother. I was the one who was cultivating before I gave to the 1st plaintiff. My self and my father cultivated the land in dispute when I was a small boy and I my self if cultivated for 40 years before I gave it to 1st plaintiff. The farm western shares common boundary with Mai-angwa Bitrus Bwai PWII and PW1 Sale Randong.
CROSS-EXAMINATION BY COUNSEL TO DEFENDANT
Q1: You said this issue reached some elders.
Ans: It is true.
Q2: Did the elders (Sarakuna) affirm the subject matter to the defendant?s father.<br< p=””
</br<
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Ans: No.
Q3: What was the decision before Sarkin Manjin?
Ans: I do not know how it ended there.
Q4: What is the decision of Sarkin Tangur.
Ans: The matter did not reach conclusion.
Q5: What happen before the District Head of Bokkos.
Ans: The District Head of Bokkos gave the subject matter to the defendant?s father.
Q6: Was it after the decision of District Head of Bokkos that the defendant?s father sent people to the subject matter?
Ans: The defendant encroached into the subject matter before the matter was reported the District Head of Bokkos.
Q7: Is true that there was a time when you had a misunderstanding over the subject matter between you and the 2nd plaintiff.
Ans: It is not true.
Q8: There was a time when the 2nd plaintiff sold a portion of the subject matter?
Ans: I was not aware.
Q9: You said you started cultivating since when you were a small boy which means you only saw your father cultivating.
Ans: It is true.
Q10: Is your mother?s name Ullamweh?
Ans: Yes.
Q11: Are you aware whether Ulamweh’s parents have a land in the disputed area?
Ans:
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No they do not have.
Q12: Your parents have no land in the disputed area apart from the one in dispute.
Ans: We have other lands there.
Q13: You are not aware whether your father was given the subject matter on trust to keep for the defendant?s father who was a small boy then.
Ans: I am not aware.
Q14: What is the relationship between your mother and the defendant?s father.
Ans: She is from the defendant?s father family.
Q15: Where you there when the issue was reported before the District Head of Bokkos.
Ans: I was not there and I do not know if the 2nd plaintiff was there.
Q16: Who told you about the issue before the Bokkos District Head.
Ans: I was told by the 1st plaintiff because I was sick at that time.
Q17: Did the 2nd plaintiff ever cultivate the subject matter?
Ans: Yes he did.
Q18: When the 2nd plaintiff was farming the subject matter you were not farming?
Ans: We cultivated the subject matter together.
Q19: Since the 2nd plaintiff is your senior it means he knows the history of the subject matter than you.
Ans: It is true.
Q20: If the 2nd
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plaintiff says the subject matter belongs to the defendants? father will you accept.
Ans: I will not accept.?
Musa Kamo (PW4) testified at pages 15 to 17 of the printed record. The witness testified under cross-examination at page 17 lines 16 to page 20 lines 1-6 of the printed record as follows:
?EXAMINATION BY DEFENDANT?S COUNSEL:
Q1: Are you Musa Randong.
Ans: I am.
Q2: Will you agree with me that where the subject matter situates the ward head knows all the owners of the land there at Ratip.
Ans: There is no Ward Head.
Q3: Is Ratip under Manjim.
Ans: Is under Manjim and Madaki is the head of Manjim.
Q4: The Madaki of Manjim knows the owners of the farm in his area?
Ans: Yes he knows.
Q5: Did this matter ever reported to Madaki Manjim and what was his decision?
Ans: He gave the subject matter to the defendant?s father.
Q6: It was yourself PWIII and the defendant?s father were before Madaki Manjim.
Ans: It is true.
Q7: Did this matter reached Saf Ron Kulere.
Ans: No.
Q8: Did you appear before the District Head of Bokkos.
Ans:
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No I have never appeared before him.
Q9: Did you know one Amande presently on the subject matter?
Ans: No.
Q10: You will be surprised if the Court moves for inspection and found Amande in the subject matter.
Ans: I will be surprised.
Q11: It is true you once sold part of the subject matter to some one?
Ans: It is not true.
Q12: Do you know Gubang.
Ans: I do not know him.
Q13: Do you know Jamok.
Ans: No.
Q14: Did your mother Ulamweh has brothers.
Ans: No she had no one.
Q15: What is the relationship between you and the defendant?s father?
Ans: I do not know.
Q16: Did you see your grand father from your mother.
Ans: No.
Q17: Initially you were alone using the subject matter.
Ans: I have been together with my younger brother PWIII and it was our father Kamo who partitioned the subject matter to us.
Q18: Is it true in Ron custom woman do not inherit any property and no brother will not give her any farm as loan?
Ans: I have never seen it.
Q19: Is it part of Ron custom also that if there is a dispute on a land the sold is exchanged.
Q20: The
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defendant?s father allowed Sale Datong and Rosha Mahiwel in to the subject matter after pronouncement of Madaki Manjim.
Ans: Yes it is true.
Q21: You came to Court after the District Head of Bokkos affirmed the decision of Madaki Manjim.
Ans: It is true.
Q22: And after that he sent people to work for him.
Ans: It is not true.
Q23: You affirmed before the chiefs that the subject matter belongs to defendant?s father?
Ans: It is not true.
Q24: You once brought N5,000.00 to defendant?s father and when could not see him you deposited to his wife to keep for him.
Ans: I never did that.
Q25: Are you aware that your uncle Gubang was the one who gave the subject matter to Ulamweh.
Ans: I do not know.
Q26: It is because you were a small boy by then.
Ans: I do not know any thing and it is not true.
Q27: You do not know the history of your mother Ulamweh.
Ans: I do not know.
Q28: Were you married before the death of your mother Ulamweh?
Ans: Yes I was married.
RXX: Between the case before Madaki Manjim and the encroachment of Sale Datong and Rotshak into the
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subject matter, which is there first?
Ans: It was after the encroachment that the case went to Madaki Manjim.?
From the evidence of the witnesses called by the respondents in the Grade 1 Area Court, Bokkos, it can be seen that ?The District Head of Bokkos gave the subject-matter to the deft?s father? (page 13 lines 5-6 per the evidence of PW3). The evidence of PW4 also is that, the District Head of Bokkos affirmed the decision of Madaki Manjin and PW4 answered that ?It is true. See page 19 lines 7-13 of the printed record.
Philibus Shedrack (1st plaintiff) testified in support of his claim to the land. When cross-examined by Counsel he answered at page 23 lines 1 to page 24 lines 1 of the printed record as follows:
?CROSS-EXAMINATION BY DEFENDANT?S COUNSEL
Q1: When the issue reached Madakin Manjin you were not present.
Ans: It is true.
Q2: You are not aware of what Madakin Manjim did?
Ans: I am aware.
Q3: You did not know what your parent said before Madakin Manjim.
Ans: I know because they told me.
Q4: Will you agree with me if I say
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Madakin Mangai knows the people who owns lands in that area?
Ans: I will not agree.
Q5: Were your present before the District Head of Bokkos when this matter reached his palace?
Ans: I was present with my parents.
Q6: When the District Head visited the subject matter did they ask the people who have land there the history of the subject matter?
Ans: No he did not.
Q7: Who and who were present during that inspection?
Ans: Myself, my father Musa Kamo Maiangwa a Bitrus, Sale Randong and the District Head of Bokkos, then his driver and one civil defence corps. The defendant?s father and his witnesses never came there.
Q8: Was you after the investigation that the District Head of Bokkos affirmed the subject matter to defendant father.
Ans: He gave him without investigation since he did not bring his witnesses.
Q9: All what you have told the Court over the subject is what you heard from your parents.
Ans: I saw it by myself.
Q10: Do you know the history of your grand mother?
Ans: I know and she had no brother or sister.
Q11: Do you know whether the 2nd plaintiff was at one time sold part
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of the subject matter?
Ans: I do not know.
Q12: When the defendant allowed the Sale Datong and Rotshak Mashawel was after the Madakin Manjin verdict.
Ans: It was after he gave the subject matter to the defendant?s father.
Q13: In Ron custom when do you share inheritance?
Ans: A father may share his farmland to his children by himself or to be shared after his death.
Q14: Do you know that there was a time when the 2nd plaintiff stopped your father from using the subject matter.
Ans: I am not aware of that.?
The evidence is unanimous that the dispute underwent traditional arbitration. Both the Madaki Manjin and the District Head found in favour of the defendant/appellant. Having heard evidence from the parties the Court of first instance considered the addresses of the learned Counsel before coming to the following conclusions at pages 46-48:
?After the perusal of the plaintiff?s case defendant visit to the locus in quo as well as the final written addresses of the parties this hours Court agreed with the submission of the learned Counsel to the plaintiff as it is the position of law that he
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who assert must prove and that the plaintiff should relied on the strength of his case and not the weakness of the defendant?s case. The Court agreed with the citation made by the plaintiffs on that in the case of Bassel vs. Pamor Nig. Ltd. (supra). See also Section 135 of Evidence Act as amended it was not in intention that the plaintiff are in possession but the defendant was able to established how they came into possession it was through the 2nd plaintiff mother Ulamweh a sister to the defendant?s father Ulamweh, the plaintiffs admitted that they are aware that Ulamweh used the land for a year before she die. It was also in evidence that in cross-examination that PW1 said he does not know the history of the disputed land and PWII under cross-examination that all what he told the Court was what he was told by his father. The 2nd plaintiff as well as the 1st plaintiff and even their Counsel remained mute when DW2 showed the Court the portion he purchase out of the disputed land from the 2nd plaintiff with the consent of the defendant?s father PWI in his evidence said the defendant is in possession or took over the land from his father 15
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years now while 1st plaintiff as PWIV said he is in possession for 20 years now. These contradiction are fundamental witness see the case of Osadim vs. Taiwo (2010) All FWLR (Pt.534) 147 at 150 ratio 8.
It is also in evidence that the defendant?s father was given the land in dispute before Madakin Manjin which PWIV surrendered the land to him after an arbitration and DWI the Madakin Manjin affirmed this position as his evidence without been contradicted by the plaintiffs the matter also reached Saf Bokkos who visited the subject matter and called boundary witnesses and after by finding he resolve the issue in favour of the defendant?s father it is the opinion of this Honourable Court here that since the parties voluntary submitted themselves to customary arbitration they are bound by it. As enshrined is Achor vs. Adotoh (2010) 6 NWLR (Pt.11) 537 at 549 ratio II.
Another issue is that DWII showed the Court part of the subject matter sold to him by the 2nd plaintiffs with the approved of the defendant?s father but nobody contradicted him can a person who agreed something belongs to someone be heard later on the day putting claim on
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the something again as it appeared in the case at hand where 2nd plaintiff as well as the 1st plaintiff were present during the inspection when DW2 showed the Court part of the land in dispute which he said the 2nd plaintiff sold to him with the approval of the defendant?s father his position clarified his earlier testimony when he was given evidence as DWII that the 2nd plaintiff told him that the and he intended to by does not belongs to him but his uncle (the defendant) father. Having said all that is supra this Court entered judgment in favour of the defendant at preponderance a him case the plaintiffs their agents any other person claiming through them should stay clear from the subject matter henceforth.?
?The Grade 1 Area Court, Bokkos dismissed the claims of the respondents but found in favour of the appellant. In allowing the appeal in favour of the respondents, the learned Judges of the Customary Court of Appeal held at pages 15-20 of the printed record as follows:
?We have thoroughly examined the entire record of appeal and find that apart from the respondent?s Counsel?s failure to make submission on
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traditional history, the trial Court also failed to consider the evidence of traditional history presented before it. Similarly, we find that the traditional history presented by the appellant at the trial Court was not shaken during cross-examination. In view of the lack of evidence of founder and the mode of founding of the land in dispute in the story of the respondent at the trial Court we find that the appellant?s traditional evidence/history is superior to that of the appellant, in that the appellant?s traditional evidence/traditional history contains all the requisite elements, namely, who founded the land; how it was founded and the intervening holders of the land down to the appellant. Other contentions of the respondent in the trial Court were that:
(i) That the Ngubang, an ancestor of the respondent had farmed the land.
(ii) That the appellants, progenitor came on the land through Ullamweh who farmed the land by the grace of the said Ngubang.
(iii) That the appellant and a member of his family had admitted before the ward head of Mamjim that the land belonged to the father of the defendant and had surrendered it to the
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defendant?s father.
(iv) That the appellants had told Jonathan Amande that the land in dispute belonged to the father of the defendant when the said Jonathan Amande purportedly bought a portion of the land from the appellant.
With respect to (1) above, the appellant and his witnesses stoutly denied the assertion that Ngubang ever farmed the land in dispute. The assertion remains an assertion which was not proved.
Similarly, with respect to (ii) above the appellant denied the alleged admission and surrender of the land in favour of the defendant?s father before the ward head of Mamjim (Yusufu Mangai). This is DW1 who testified that he knows the land in dispute, that Ngubang was in possession of the land in dispute since when the said Ngubang was a small boy and he (DW1) saw Ngubang farming the land. DW1 is also the person who purported to have conducted an arbitration after which he purportedly gave the land to the father of the respondent when the appellant surrendered it to the respondent?s father.
But in a surprising twist when cross-examined, he said he handed over the land to the defendant?s father without seeing
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it, he did not have any idea about the size of the land and that he would not be able to identify the land to the Court, nor could he know the demarcations of the land. We observe that DW1 has been shown to be an arbitrator in the attempted resolution of the dispute between the parties, but he turned out to be a witness against the appellant in the trial Court. It is certainly not in the interest of justice for DW1 to have played double roles in the dispute. Suffice it to say that we have already held that the arbitration was not binding, not conclusive and effectively repudiated by the appellant.
With regard to the purported sale of the portion of the land to Jonathan Amande, the appellant denied such sale. As submitted by learned appellants? Counsel, relying on Fatoki vs. Baruwa (supra), the sale was not established before the trial Court. That being so, and since the purported sale was the basis and occasion for the assertion that the appellant had purportedly told the said Jonathan Amande that the land belonged to the father of the respondent could not perforce be established and was not. The sale was the basis of the allegation and since the
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alleged sale was not proved, the allegation based on it was not proved also. In fact, the said Jonathan himself said he had no evidence of purchase of the land, he does not know owners of the lands surrounding the portion he alleged he had bought. (See page 30 of the record). From the foregoing we hold that the respondent?s contentions are not established. In its judgment, the trial Court recorded at pages 46-47 that:
?The Court agreed with the citation made by the plaintiffs that in the case of Bassel vs. Pamor Nig. Ltd. (supra), see also Section 135 of the Evidence Act as amended it was not in contention that the plaintiffs are in possession but the defendant was able to establish how they came into possession through the 2nd plaintiff mother Ullamweh a sister to the defendant?s father, the plaintiffs admitted that they were aware that Ullamweh used the land for a year before she die.?
We have gone through the record and find as true that the plaintiff did say that Ullamweh farmed the land once before her demise. They however never admitted that she farmed the land because the defendant?s ancestor ? Ngubang gave
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it to her. After all there is uncontroverted evidenced that the plaintiff?s family had other lands in the vicinity of the area in dispute and Ullamweh, being their wife could not have had any need to take land from Ngubang to farm. It was certainly speculative for the trial Court to conclude that merely because Ullamweh farmed the land in dispute then she must have got it from Ngubang, the defendant?s precursor. The appellant denied that neither Ngubang nor any member of his family ever farmed the land in dispute. As for the respondent some of his witnesses claimed Ngubang farmed the land, some said he never did. Their evidence is conflicting and either version must be rejected.
At page 48 the trial Court recorded ?The 2nd plaintiff as well as the 1st plaintiff and even their Counsel remained mute when DW2 showed the Court the portion he purchased out of the disputed land from the 2nd plaintiff with the consent of the defendant?s father.? Suffice it to say we have held that the sale or purchase was not proved. Therefore, this finding of the trial Court is inconsequential. At the same page 47 the trial Court said ?PW1
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in his evidence said the defendant is in possession or took over the land from his father 15 years now while the 1st plaintiff as PW4 said he is in possession for 20 years.? It then held that the contradiction is fundamental. But in fact, PW1 was talking about the plaintiff taking over from his own father. He was not talking about the defendant being in passion, (see page 6 of the trial record). The record does not contain what the trial Court attributes to PW4 either in his evidence in-chief or during cross-examination (see pages 15-20). The above finding of the trial Court is not based on the record. It is perverse and hereby set aside. We resolve issue two against the respondent.
In view of the foregoing, we are of the firm view that the trial Court was not justified in declaring title to the respondent but ought to have declared title in favour of the appellant in that he successfully and satisfactorily established his root of title, and as found by the trial Court itself, the appellant?s possession of the land in dispute was not in contention. Consequently, we set aside the verdict of the trial Court delivered on 27th May, 2013 and in its
29
place declare title to the disputed land in favour of the appellant, at whose suit the respondent was in Court. The respondent had not filed any counter-claim and could not have been given a declaration of title in his favour against the appellant who filed a suit seeking the remedy and as we have found, successfully established his claim. See Henkel Chemicals Nig. Ltd. vs. A.G. Ferero & Co. (2003) 4 NWLR (Pt. 810) 306 where it was held that payment of filing fees is a condition precedent to vesting of jurisdiction to grant a claim.?
The appellant filed a Notice of Appeal on 13th day of May, 2014 and a brief on 31st December, 2015. The following issues were formulated for determination:
?1. Whether or not the Lower Court was right when it assumed jurisdiction to hear and determine this case (Distilled from Ground 1).
2. Whether or not the Lower Court was right to have set aside the judgment of the trial Court on the ground that the trial Court having rejected the document purporting to convey the arbitral award to the defendants was wrong in finding that the parties to the dispute were bound by the Customary/Arbitration award in
30
favour of the defendant.?
The respondents filed a brief on 9th February, 2016 and distilled the following issues for determination:
?(i) Whether the Lower Court was right when in, setting aside the decision of the trial Court which was based on a rejected document.
(ii) Whether having found a purported award document rejected, the Lower Court was right to award the land in disputes to the respondents.
(iii) Whether the issue before the Lower Court was one for which it had jurisdiction.?
When the appeal came up for hearing on 4th May, 2016 learned Counsel adopted their respective briefs of argument.
In my humble opinion it is a party that is not satisfied with the decision of the Lower Court that usually appeals to this Court and ought to formulate issues for determination. The duty of the respondent is to show why the decision should be upheld by an order of dismissal. This is the intent and purposes of Order 18 Rules 3(1)-(4) and 4(1)-(2) of the Court of Appeal Rules, 2011 which provides as follows:
?2. The appellant shall within forty-five days of the receipt of the Record of Appeal from the Court
31
below file in the Court a written brief, being a succinct statement of his argument in appeal.
3(1) The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are, in the appellant?s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the document admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the point to be raised and the reasons upon which
32
the arguments is founded.
xxx
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent?s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent?s brief shall answer all material points of substance contained in the appellant?s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall Mutatis Mutandis, also conform to Rule 3(1), (2), (3), (4) and (5) of this Order.?
See also Adefulu vs. Oyesile (1989) 12 SCNJ 44 at 79; Njiba vs. L.G.C. (2010) 16 NWLR (Pt.1218) 166 at 192-193; Obi vs. INEC (2007) 11 NWLR (Pt.1046) 565 at 673-674 and Olaniyan vs. Adeniyi (2007) 3 NWLR (Pt.1020) 1 at 15.
I shall rely on the issues formulated by the learned Counsel to the appellant in this appeal.
The issues formulated are distilled from the following grounds of appeal to wit:
?1. The Lower Court erred in law when it assumed jurisdiction to hear and determine this case when it has no jurisdiction to do so which
33
error has caused a miscarriage of justice.
PARTICULARS OF ERROR:
(a) The Customary Court of Appeal of Plateau State has jurisdiction to hear appeals on matters involving matters of Customary law.
(b) The dispute in this case does not involve native law and custom of any tribe in Plateau State.
(c) The dispute involved is on declaration of title to land and it is on general law.
2. The trial Court erred in law when it held that ?the trial Court having rejected the document purporting to convey the arbitral award to the defendant was in our view, clearly wrong in finding that the parties to the dispute were bound by the Customary/Traditional arbitration/Customary award in favour of the defendant? which error occasioned a miscarriage of justice.
PARTICULARS OF ERROR:
(a) There are evidence from both parties that there was a customary arbitration and an award was made in favour of the appellant ? PW3, PW4, PW5, DW1 and DW4 testified to that effect.
(b) Proceedings of Customary arbitration are not admissible documents before a Court of law.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
(a) An order
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nullifying the entire proceedings and judgment of the Lower Court.
(b) An order restoring the judgment of the trial Area Court, Bokkos.?
The jurisdiction of the Grade 1 Area Court, Bokkos to entertain disputes affecting land is set out in Sections 18-21 of the Area Court Law of 1968 as follows:
?18. Every Area Court shall have jurisdiction and power to the extent set forth in the warrant establishing it, and subject to the provisions of this law and of the Criminal Procedure Code Law, in all civil and criminal cases in which all the particulars are subject to the jurisdiction of such Area Court.
18A. Notwithstanding anything contained in this Law and in the Criminal Procedure Code Law, an Upper Area Court and Area Court Grade 1 and II shall have power to try and to award the punishment prescribed for any offence under Sections 181, 287, 288, 347 and 319 of the Penal Code.
19(1) The place of trial of all criminal causes shall be determined in accordance with the provisions of the Criminal Code Law.
(2) All civil causes or matters other than land causes shall be tried and determined by an Area Court which has
35
jurisdiction over the area:-
(a) In which the defendant is ordinarily resident; or
(b) In which the defendant was at the time when the cause of action arose.
(3) Subject to the provisions of any written law, all land causes shall be tried and determined by an Area Court having jurisdiction over the area in which the land, which is the subject matter of the dispute, is situated and to the extent of the jurisdiction and power of such Court.
20(1) Subject to the provisions of this Law, and in particular of Section 21, an Area Court shall in civil causes and matters administer:-
(a) The Customary law prevailing in the area of the jurisdiction of the Court or binding between the parties.
(b) The provisions of any written law which the Court may be authorized to enforce by any order made under Section 24;
(c) The provisions of all rules and orders made under the Local Government Law or under any legislation repealed or superseded by that Law, and the provisions of all rules, order, and by-laws made by a Local Authority under any other written law, and in force in the area of the jurisdiction of the Court.
(2) Nothing
36
contained in this Section shall be deemed to authorize the application by an Area Court of any Customary law or part thereof in so far as it is repugnant to natural justice, equity or good conscience or incompatible either directly or by necessary implication with any written law for the time being in force.
(3) Nothing in this Section shall be deemed to preclude the application by an Area Court of any principle of English Law which the parties to any civil case agreed or intended or may be presumed to have agreed or intended should regulate their obligations in connection with the transaction which are in controversy before the Court.
21(1) In mixed civil causes, other than land causes, the Customary law to be applied by an Area Court shall be:-
(a) The particular Customary law which the parties agreed or intended, or may be presumed to have agreed or intended, should regulate their obligations in connection with the transactions which are in controversy before the Court;
(b) That combination of any two or more Customary laws which the parties agreed or intended, or may be presumed to have agreed or intended, should regulate their
37
obligations as aforesaid; or
(c) In the absence of any agreement or intention or presumption thereof:-
(i) The particular Customary law; or
(ii) Such combination of any two or more Customary laws, which it appears to the Court, ought, having regard to the nature of the transaction and to all the circumstances of the case, to regulate the obligations of the parties as aforesaid, but if, in the opinion of the Court, none of the paragraphs of this Sub-section is applicable to any particular matter in controversy, the Court shall be governed by the principles of natural justice, equity and good conscience.
(2) In land causes or matters the Customary law to be applied by an Area Court shall be the Customary law in force in relation to land where the land is situated:
Provided that no Customary law prohibiting, restricting or regulating the devolution on death to any particular class of persons of the right to occupy any land shall operate to deprive any person of any beneficial interest in such land (other than the right to occupy the same) or in the proceeds of sale thereof to which he may be entitled under the rules of inheritance of any
38
other Customary law.?
The farm in dispute ?is situated at Ratip under Manjin Tangur at Bokkos L.G.A.? See page 2B of the printed record lines 18-24. I may ask: Which Customary Law at Ratip under Manjin Tangur in Bokkos Local Government Area of Plateau State where the land in dispute is situate did the Grade 1 Area Court, Bokkos err to have applied in the determination of the dispute in favour of the appellant over which the Customary Court of Appeal assumed jurisdiction to entertain the appeal and reverse the decision of the trial Court? I see none. It is true that each contestant traced their respective roots of title to inheritance. But what Customary law did the Grade 1 Area Court, Bokkos rely upon to render decision in favour of the appellant on 2nd July, 2012? The Customary Law is not mentioned for the trial Court never indicated which Customary law governed the controversy in question, or under what Customary Law the Court found that the land in dispute belonged to the appellant. It is true that the Court of trial had mentioned Customary arbitration in its decision. But should that be elevated to Customary law? No.<br< p=””
</br<
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?Customary law? is therefore not the same as ?Customary arbitration?.
Customary law is defined in Black?s Law Dictionary, 9th edition, page 443 as follows:
?Customary law ? Law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws. Also termed consuetudinary law.
?In contrast with the statute, Customary law may be said to exemplify implicit law. Let us, therefore, describe Customary law in terms that will reveal to the maximum this quality of implicitness. A custom is not declared or enacted, but grows or develops through time. The date when it first came into full effect can usually be assigned only within broad limits. Though we may be able to describe in general the class of persons among whom the custom has come to prevail as a standard of conduct, it has no definite author, there is no person or defined human agency we can praise or blame for its being good or bad. There is no authoritative verbal declaration of the
40
terms of the custom; it expresses itself not in a succession of words, but in a course of conduct.? Lon L. Fuller, Anatomy of the Law, 71 (1968).?
In Zeidan vs. Khalil Mohssen (1973) 11 SC 1 appear the following findings and holdings of Elias, C.J.N. at page 19-22:
?The uncontradicted evidence throughout the whole case in the trial Court is that the Moslem law that is applicable is the same everywhere, whether in Lebanon or in Nigeria or elsewhere. Even in Absi vs. Absi the evidence is that the wife has one quarter, the same as in the present case. We are equally of the opinion that learned Counsel for the appellant is in error when he argued that Section 13 of the Mid-Western State High Court Law does not envisage any Customary law outside Nigeria, because under Section 17 of the Customary Courts Law of the Western State and the Mid-West Customary Courts Edict, only Nigerians are subject to customary law. We think that the lex situs governs the immovable property of a deceased intestate, and the lex situs means the law of Nigeria which embraces Customary law including the conflict rules between two systems of Customary law as laid
41
down in Section 20 of the Customary Courts Law which is a summary of the various previously existing decisions on internal conflicts of laws. We think that while ?parties? in Section 17 of the Customary Courts Law may apply only to Nigerians within the con of the Customary Courts Law, it does not follow that ?parties? can be so restricted within the con of the High Court Law since all persons in Nigeria, whether Nigerians or foreigners, are subject to the jurisdiction of every High Court in Nigeria. This point was confirmed in an appeal from Ghana to the West African Court of Appeal on an analogous provision of Section 15 of the Native Courts (Colony) Ordinance of the then Gold Coast in Mary Ekem vs. Ekua Nerba (1947) 12 WACA 258, at pp. 259-260:
?The learned Judge held that the lex situs applied, and that therefore the plaintiff could have no interest in her father?s property. His judgment was delivered prior to the date of the judgment of this Court in Ghamson vs. Wobill (1) in which it was held that, where a conflict of native Customary laws arises in a case, the question must be decided in accordance with
42
the provisions of Section 15 of the Native Courts (Colony) Ordinance, 1944. The learned Judge does not appear to have considered this Section. In the above cited case it was held that the law to be applied was not the lex situs. However, as some of the relevant facts in this case are different from those in Ghamson vs. Wobill it does not necessarily follow that the lex situs should not have applied in this case. As it is, although it is common ground that the deceased Johnson was a Nigerian it does not appear from the evidence to what part of Nigeria he belonged, and there is nothing to show what would be the nature of the law applicable, if some foreign law is binding on the parties within the meaning of proviso (b) to the said Section 15.?
If follows, therefore, that, having regards to our own built-in rules in Section 20 of the Customary Courts Law governing the choice of law in the application of the lex situs to the succession to the intestate estate of a deceased person in Warri, the applicable law is not the Administration of Estate Law (Cap.1), but the (Moslem) Customary Law of Lebanon which is the one binding between the parties (Section
43
20(3)(a)(i) of the Customary Courts Law). We are of the view that, in this con, Customary law is any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway. We are also of the view that anyone subject to any such law is excluded from the operation of Section 49 of the Administration of Estates Law (Cap.1) of Western Nigeria, 1959 applicable in the Mid-Western State of Nigeria.
For the foregoing reasons, the appeal fails and it is hereby dismissed.?
In Solomon vs. Botchway (1943) 9 WACA 127 Ga Native Law and Custom in Ghana was relied upon to lay claim to a deceased?s property. The West African Court of Appeal held at page 134 to 135 to wit:
?It has not been suggested to us in argument in the present case, nor does it appear from any of the cases cited to us that the custom makes any distinction between personal and real estate, though there is a distinction between ancestral and self-acquired property. Although in his order in the Cole case the Judge clearly used the expression
44
?personal estate? in its English legal meaning, i.e. as opposed to ?real estate?, we think it clear that when the Native Tribunal used the expression ?personal estate? in paragraph 6 of their Report they were using it not in that sense but as meaning self-acquired property as opposed to ancestral property. That the custom applies equally to realty as to personalty is shown by reference to the case of Lutterodt and Lutterodt vs. Solomon decided in the Ga mantse?s Tribunal on the 30th December, 1930, a case in which the Tribunal made an order in favour of children of a six-cloth marriage specifically in respect of realty. It is significant that the very first step the Tribunal took in the Cole case was to enquire as to the nature of the marriage between Cole?s parents. It is agreed that their enquiries established that it was six-cloth marriage. The ruling of the Tribunal applies only to such marriages.
The customs, then, being clear and settled, there ought to be no difficulty in deciding the present case, but unfortunately the plaintiffs? pleadings were so badly drawn that there is difficulty. It is
45
laid down by Rules 3 and 4 of Order 25 in Schedule III to the Courts Ordinance that every pleading shall contain a statement of all the materials facts on which the party pleading relies and that the facts shall be alleged positively, precisely and distinctly. Further, in the case of Bonsi vs. Adjena II (6 WACA 241) this Court said:-
?We cannot too strongly emphasize that where a party intends to set up and rely upon a Native Law and Custom it must be specifically alleged and pleaded.?
It was obviously incumbent upon the second plaintiff to plead that he and the other children were children of six-cloth marriages and that he relied upon the Accra custom applicable to the children of such marriages. He did neither ; instead he described himself and the other children merely as ?children?, and so far as appears on the face of the pleadings any custom which he relied would be a custom applicable to all children as such and not to a restricted class. In this connection we are of opinion that the learned trial Judge misdirected himself as to the onus of pleading and proof in that passage of his judgment which reads:-
?It
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may be added that the question whether the mothers of the late Vanderpuye?s eighteen children were married according to the six-cloth custom was not raised on the pleadings by the defendant; and indeed Mr. Bossman, Counsel for the defendant, never touched upon it.?
The onus was clearly upon the plaintiffs to plead and (unless admitted) to prove both the custom and facts which brought the children within the class to which the custom applies. Counsel for the respondents, however, alleges that the case was fought throughout in the Lower Court on the assumption that the children were children of six-cloth marriages and he points to a passage in the shorthand notes of his final address to confirm this. Counsel for the appellant denies this. We are of opinion that it is impossible for this Court, and was wrong for the Court below, to act upon mere assumption on such a vital point.?
In Bonsi vs. Adjena II (1940) 6 WACA 241 the West African Court of Appeal held at page 241 as follows:
?In this case, the learned Chief Justice in the Divisional Court held that the writ disclosed no cause of action and non-suited the plaintiff on
47
the pleadings without hearing evidence. The plaintiff now appeals to this Court contending that he ought at least to have been allowed to lead evidence to prove the Native Law and Custom upon which he desired to rely. But neither in his writ nor in Counsel?s opening did he allege any Native Law and Custom, and we cannot too strongly emphasize that where a party intends to set up and rely upon a Native Custom it must be specifically alleged and pleaded. In this case if the rather vague Native Law and Custom suggested to us were set down in black and white it is clear that it would be so palpably absurd as not to merit serious consideration.
We concur with the view of the learned Chief Justice that the writ disclosed no cause of action.
The appeal is dismissed with costs assessed at 17 13s.?
On the other hand ?customary arbitration? was defined in Onwusike vs. Onwusike (1962) 6 E.N.L.R. 10 at 14 where Betuel, P.J., held at page 14 as follows:
?This decision given by the elders, authorized by custom to settle such disputes, and exercising their Customary functions, as a result of the submission of the
48
parties to their jurisdiction, unless clearly wrong in principle, is binding on them.
The best evidence, although it was not recorded in writing, was given of it.
I apprehend that it would be contrary to commonsense to allow persons who have voluntarily submitted their dispute to an independent body of their own choosing, to render nugatory the decision arrived at, merely because it does not favour the interest they assert or in some other way is regarded by them as unsatisfactory.
It must be stated in all fairness to the plaintiff that he does not impugn the validity of their decision, he merely seeks to put a different complexion on it. Assampong vs. Anuaka (1932) 1 WACA 192, 195-197, 202-203, followed, applies and amplified in Aniekwe vs. Okeke 0/33/61 decision of Onitsha High Court Betuel, J., delivered at Onitsha on 7th December, 1961, unreported.?
In Aguocha vs. Ubiji (1975) 5 ECSLR 221 where Aniagolu, J., (as he then was) held at page 224 as follows:
?The Court had recently to deal with the question of arbitration under native law and custom where the parties voluntarily submitted their case to an arbitration in
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Ochulo Eze vs. Stephen Nwosu (Suit No. HU/9/71, unreported) decided on April 30, 1975. Supporting and following the decision of Betuel, J., in Owusike vs. Onwusike (1962) 6 E.N.L.R. 10, 14, this Court held in that case that where the parties have voluntarily submitted their case to an arbitration of their own choice, pledging themselves beforehand to be bound by their findings, unless some fundamental error was committed by them in their proceedings or that their decision is otherwise unsupportable on some valid ground, the parties would be bound by the decision and a party would not be allowed to scuttle out of it merely by reason that it did not favour him. It is worse where the decision has been accepted by the party only for him to later seek to jettison it. Spencer Bower on the doctrine of Res Judicata (First Edition at page 16) wrote that an arbitrator or arbitrators or other person or body of persons which may be vested with judicial authority to hear and determine a particular dispute or class of disputes:-
(a) By consent of the disputants,
(b) By an order of Court, or
(c) By a statute,
is a ?judicial Tribunal? and
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that the decision arrived at by the said arbitration or arbitrators or other person or body of persons is conclusive between the parties.?
In Njoku vs. Nnamani (1954) 14 WACA 357, the District Officer settled the boundary dispute between the parties. The argument was that he was not a judicial decision and cannot operate as an estoppel per rem judicatam. The West African Court of Appeal held at page 359 to page 360 per Verity, C.J., of Nigeria to wit:
?Now in the present case it is clear that a dispute had arisen between the two ?tribes? represented by the plaintiffs and defendants respectively as to the boundaries between their lands; that the District Officer decided this dispute and settle it by fixing the boundary; that this decision was reviewed by the President and by the Chief Commissioner (now lieutenant-Governor) at the instance of the present plaintiffs and in each case the boundary settled by the District Officer was affirmed.
It is this dispute that the plaintiffs sought to bring before the Supreme Court, for it is in my view beyond doubt that when a dispute arises between two tribes as to the boundary between
51
their communal lands and this boundary is settled under statutory authority, an attempt by either tribe to secure a declaration that their communal land lies the other side of the boundary so fixed raises in substance the identical issue as that which has been so settled. It is indeed the original dispute raised in another form.
It is difficult for me to conceive that the legislature intended to set up elaborate machinery for the settlement of such disputes if either party thereto, after having availed themselves of all means open to them under the Ordinance to secure a decision, were to be at liberty then to have recourse to the Courts in the hope of securing a judicial decision at variance with that solemnly recorded and registered by statutory authority.
Counsel for the appellants has contended that nevertheless the acts of the District Officer and, presumably, the Resident and Chief Commissioner, are administrative and not judicial and that, therefore, their decisions are not judicial decisions in judicial proceedings and cannot support a plea of res judicata. It would appear to follow from this contention that if the legislature intended that a
52
decision under this Ordinance should be a bar to subsequent proceedings in the Courts it would have so enacted in unmistakable terms.
In this connection, Mr. Ibekwe, for the appellants, drew a distinction between a judicial decision in judicial proceedings, and an administrative decision arrived at in accordance with judicial principles, basing his argument upon a statement in Spencer Bower on Res Judicata, a -book which I agree is entitled to respect. It is a nice distinction but I do not think that it avails in respect of the proceedings of a statutory authority set up for the purpose and with the plain intent of deciding disputes.
The short answer is, indeed, to be found in the words of the learned author of the work cited to us by Counsel, Spencer Bower on the Doctrine of Res Judicata (1st Edition) at page 16. ?Every domestic forum, that is to say:-
?Any arbitrator or arbitrators or other persons or body of persons? who may be vested with judicial authority to hear and determine a particular dispute or class of disputes by consent of the disputants or by an order of the Court or by a provision of a statute, is
53
undoubtedly a ?judicial Tribunal? and its awards are as conclusive and unimpeachable as the decisions of any of the constituted Courts of the realm.?
There is no doubt in my mind that a District Officer acting under Section 3 of the Inter-Tribal Boundary Settlement Ordinance is a person vested with judicial authority to hear and determine a class of disputes by the provision of a statute and that when so acting he is a judicial Tribunal and his decision, subject to the rights of review thereof provided by the statute, is conclusive upon the issue so determined by him.
There is equally no doubt in my mind that the plaintiffs in the present action are seeking to question a decision which is conclusive and that the learned Judge was right in holding that the matter being res judicata the Court was precluded from entertaining it.
In my opinion, the plaintiffs? action was rightly dismissed and I would dismiss the appeal also, with costs.?
District Heads are creatures of statutes. They are empowered to settle certain kinds of disputes example, land matters. They constitute judicial tribunals or bodies whose decisions
54
should be respected subject to the rights of review by competent Courts of record. The circumstances for interfering with decisions of native Tribunals or Customary Courts are set out by Webber, C.J. in Kwesi vs. Poku (1938) 4 WACA 210 at page 212-213 to wit:
?I agree with the decision of the Chief Commissioner. I recognize that he, sitting as an Appellate Court, was reversing the decision of the native Tribunal on a question of fact, and I recognize further that an Appellate Court is only at liberty to do this when it is satisfied that the decision of the trial Court is plainly wrong. But in this, case I think that the decision of the native Tribunal was plainly wrong. In the first place if, as the respondent contends, the boundary followed first the Agugu river, then its tributary the Kukra (i.e. from north to south) and then turned along a path (running from east to west), it is inconceivable, to my mind, that the Kukra stream would not have been mentioned as the boundary. Then, it appears that, whatever other boundary pillars may have been erected, those directed by Captain Armitage to be set up are, as one would imagine, at points where the
55
boundary turns off in a new direction, or leaves some natural feature. So we get a pillar at the junction of the Agugu river and the path to Meduma, which is also where the Kukra stream joins the Agugu. This would be the natural place for a pillar if the boundary leaves the river there and turns to the west along the path. But if the boundary continued on to the south along the Kukra stream there would have been no object in putting a pillar there; where the pillar would be wanted was where the boundary left the Kukra and followed the other path to Meduma. But no one says there is or ever was any pillar there. Finally the two witnesses who gave evidence before the native Tribunal in favour of the appellant?s case both said, not that the respondent was trying to indicate the wrong path of two as the boundary, but that the path from Jidiedema to Meduma was not the boundary. This evidence, in my opinion, ought not to have been acted upon because it is contrary to Captain Armitage?s demarcation which definitely states that this path, wherever it is, forms the boundary. It seems to me that this is a case which turns, not so much upon direct evidence, as
56
?upon inferences from facts which are not in doubt,? namely, the description of the boundary by Captain Armitage and the place where he directed the boundary post (at the place where the path crossed the Agugu to be erected; and in such a case ?the Appellate Court is in as good a position to decide as the trial Judge.? Powell vs. Streathan Manor Nursing Home, 1935 A.C. per Lord Wright at page 267).
I am therefore of opinion that the decision of the Chief Commissioner should be affirmed, with the addition to it of a declaration that the boundary between the lands of the appellants and those of the respondent follows the line marked yellow on the plan (Exhibit ?D?).?
?Where the parties are natives there is nothing that prevents them agreeing to have their disputes settled in accordance with native law and custom. This can be orally done by an arbitral body. See Oline & Ors. vs. Obodo & Ors. (1958) 3 FSC 84 at 86; Larbi & Ors. vs. Kwasi 13 WACA 81 affirmed by the Privy Council in Kwasi & Ors. vs. Larbi & Ors. 13 WACA 76. The purpose the parties went to the elders is the material consideration
57
or determination. See Inyang vs. Essien (1957) 2 FSC 39.
Section 282(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides as follows:
?282(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law.
(2) For the purpose of this Section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.?
None of the grounds of appeal argued before the Lower Court by the respondents? learned Counsel involved or raised questions of Customary Law of the locality where the land in dispute was situate hence this Court is vested with jurisdiction under Section 240 of the Constitution (supra) to hear and determine this appeal that has emanated from the Customary Court of Appeal by virtue of Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 altered as follows:
?240. Subject to the provisions of this Constitution, the Court of Appeal shall have
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jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly.?
I have arrived at this decision on the basis of a combined reading of the two issues formulated by the appellant for determination. I also rely on Nwaigwe & Ors. vs. Okere (2008) 13 NWLR (Pt.1105) 445 at 481; Nnadi vs. Njoku (2008) 15 NWLR (Pt.1110) 283 at 303-304 cited in the appellant?s brief of argument. I shall further cite Pam vs. Gwom (2000) 1 SCNJ 36; Golok vs. Diyalpwan (1990) 5 SCNJ 198; Usman vs. Umaru (1992) 7 SCNJ (Pt.11) 388; Magit vs. Dachen (1997) 9 NWLR (Pt. 519) 72 at 78. There is no substance in the argument by the learned Counsel in the respondents? brief that the Lower Court had jurisdiction to have entertained an appeal against the decision of the Grade 1 Area
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Court, Bokkos when none of the grounds of appeal involved questions of Customary law. See also Tiza vs. Begha (2005) 5 SCNJ 168 at 180 and Golok vs. Diyalpwan (1990) 5 SCNJ 198. The parties might have relied on inheritance or the custom prevailing in the locality to establish their respective claims. However an aggrieved party can only come before the Customary Court of Appeal where the grounds of appeal involved questions of Customary law.
The Supreme Court has held that it is not the duty of a Court exercising appellate jurisdiction to resolve conflicts in the evidence especially where the credibility of witnesses is involved or to make findings of facts. That is within the province of the Court of trial. See Okoye vs. Kpajie (1976) 6 SC 176. Findings of fact should be interfered with by an Appeal Court where they do not involve the credibility of the witnesses. Interference with the findings of fact may be justified where they are perverse, or unsound. But an appellate Court should look at the reasons that led the trial Court to arrive at her decision, the inferences and conclusions drawn from such evidence. See Balogun Akanji (1988) 2 SCNJ 104 at
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122; Obisanya vs. Nwoko (1974) 4 SC 153 and Ebba vs. Ogodo (1984) 4 SC 84.
My humble view is that the Customary Court of Appeal had no legal basis to have interfered with the decision of the Grade 1 Area Court, Bokkos. Neither should the Court have embarked on a voyage of resolving assumed conflicts in the evidence of the witnesses whom the Customary Court of Appeal did not see, nor observe their demeanor as they testified in support of their respective cases. See Barau vs. Board of Customs & Excise (1982) 2 NCR 1 where Fatayi-Williams, C.J.N. held at pages 21-23 to wit:
?In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of
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Appeal to substitute its own assessment of the respondent?s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this Court held (1968 NMLR at 95) that:-
?Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.?
Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an appeal Court in more detail as follows (1968 NMLR at 247):
?A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd. [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR 224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that
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where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial.? [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.
In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119):
?The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the
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views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.
That, if may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his “performance” on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when dealing only with the cold sullen print of the records before them decided to set aside the Chief Judge’s findings of fact. Like this Court in
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Balogun v Agboola (ibid.), I- ” have no hesitation in restoring the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.”
This appeal is allowed. The decision of the Customary Court of Appeal is set aside. That of the Grade 1, Area Court, Bokkos, Bokkos Local Government Area is restored and affirmed. I award N50,000.00 cost to the appellant against the respondents.
Other Citations: (2016)LCN/8814(CA)
