Kuna Dogo V. Yaya Adamu (1997)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
At the Gombe Civil Area Court, the present respondent was the plaintiff and the appellant the defendant. I shall hereinafter refer to the parties by their description at the trial court.
The claims of the parties are encapsulated in the statements appearing hereunder which each of the parties made at the commencement of the suit. The plaintiff said:
“I, Yaya Adamu, I’m suing Kuna Dogo on a land dispute of which I cleared the land for at least 11 years working on the place, by then Kuna Dogo gifted the land to Yerima Dogo and he said I have to keep away from the said land, so because of this reason I want the court to took (sic) back my land.
The defendant on the other hand said:
“This land is owned by me not owned by Yaya Adamu because I am the one who borrowed it to him after they had a fight with his father”.
My understanding of the plaintiff’s statement reproduced above is that the plaintiff claimed to have been in possession of the land for 11 years. The defendant then purported to make a gift of the land in plaintiff’s possession to one Yerima Dogo. The plaintiff therefore sued claiming possession of the land.
The defendant’s reaction is that the land in dispute belonged to him.
Now at the trial before Gombe Civil Area Court, the parties called witnesses.
At the witnesses called by the plaintiff testified to the effect that the plaintiff had been in possession of the land for 11 years. They did not give evidence as to how the plaintiff derived his possession of the land. They said the plaintiff cleared the land of bush. Was the land a virgin forest such that it can be said that the plaintiff became its owner by first clearing it?
The defendant’s witnesses all testified that the defendant had been in possession of the land for 33 years. They said further that it was the defendant who permitted the plaintiff to farm on the land. There was also no evidence from the defendant as to the origin of his title.
The Gombe Civil Area Court in its “Finding of the Court” said inter alia:
“Even if it was confirmed that you spend 11 years in possession of the farm it does not showed (sic) that you are the owner of the place because you are related with Kuna Dogo and the 3 (three) witnesses called by Kuna Dogo, they were all elders and they know the origin of the place and they showed the farm-land before the court at the time the court visited the farm, so because of this, the court will not considered (sic) the statement made by your witnesses because they are all youth and they don’t know the origin of the farm”.
The plaintiff who lost before the Gombe Civil Area Court brought an appeal against the Judgment before the Upper Area Court, Gombe. The Upper Area Court, Gombe in its judgment on 5-6-90 set aside the judgment of the Gombe Civil Area Court and ordered a retrial. It however held that the defendant was the owner of the land. The defendant appealed against the judgment of the Upper Area Court. The plaintiff also cross-appealed. The appeal was heard by the Bauchi State High Court (hereinafter called the Lower Court) in its appellate jurisdiction.
The lower court in its judgment delivered on 27-7-92 concluded thus:
“It is trite law that he who asserts must prove; the respondent had before the lower court called witnesses who had proved his claim and the trial court should have found for him in the absence of any other equally creditable testimony. The testimony adduced by the applicant (sic) was based on hearsay and therefore not an (sic) creditable as that adduced by the respondent.
We therefore find no merit in the appeal and accordingly dismiss it.
On the other hand we allow the cross appeal as we are convinced by the submission made by the respondent’s counsel and agree with him that we can interfere with the findings of the trial court for the reasons he advanced and accordingly we (?) power under See. 59(1) (a) of the Area Courts Edict and reverse its judgments based on evidence adduced before it and confirm title of the land on the respondent with N50.00 cost to the applicant (?)”.
The defendant has brought this appeal before this court on five grounds of appeal. It is not necessary that I set out the grounds of appeal. The issues for determination distilled from the grounds of appeal are appropriate and read thus:
“3.0(1) Whether the High Court was right in reversing the judgment of the trial Area Court and the entering judgment for the respondent after setting aside the order of retrial made by the Upper Area Court, when the respondent as plaintiff failed to prove his case at the trial Area Court against the compelling proof of title and interest or the land in dispute by the appellant as counter-claimed?
3.0(2) Whether the High Court’s order of setting aside the judgment of the trial Area Court in favour of the appellant and that of the Upper Area Court for retrial were not erroneous in law in view of the respondent’s failure to prove his claims against the appellant and the incompetent cross-appeal purportedly argued before the High Court.
3.0(3) Whether High Court on appeal was right in law in not dismissing the respondent as plaintiff’s case as held by the trial Area Court, and right in setting aside the order of retrial made by the Upper Area Court and entering judgment for the plaintiff/respondent who failed to prove his case at the trial court?
3.0(4) Whether the respondent as plaintiff proved his case, title and interest as defendant at the lower court as held by the High Court on appeal?”
The respondent in his brief formulated the issues differently thus:
“(i) Whether the Bauchi State High Court which sat as an appeal (?) right (?) was when it reversed the judgment of the trial Area Court and found for the respondent in view of the inadmissible evidence of the appellant in defence of the claim against him at the trial Area Court and whether it can interfere with the findings of the trial Area Court which are perverse.
(ii) Whether the respondent is entitled to cross-appeal against the decision of the Upper Area Court Gombe as a party to the matter and consequently whether the cross-appeal before the Bauchi State High Court which sat in its appellate jurisdiction is competent or incompetent.”
A perusal of the issues for determination formulated by both counsel easily reveals that counsel had not given a close attention to the preparation and typing of the papers placed before the court. It has been very difficult making a meaning out of some of the issues for determination by the appellant (i.e. the defendant) and the first issue for determination formulated by the plaintiff. Counsel who does not vet the papers emanating from their chambers to ensure that what is finally produced for the court’s use makes a sense and represents what counsel had intended makes the work of the court needlessly more onerous than it should be.
When the grounds of appeal are considered against the records of the lower court, it seems to me that the true issue for determination is “whether or not the lower court was right in its conclusion that the respondent (i.e. the plaintiff) before the trial court had given satisfactory evidence in proof of the claim he made before the trial court”.
I observed earlier that the sum total of the plaintiff’s claim before the trial court was that he had been on the land in dispute for 11 years before the defendant came to interrupt his possession when the defendant purported to make a gift of the land to one Yerima Dogo. The plaintiff did not call any evidence as to the origin of his title. The plaintiff did not call any evidence that the defendant physically came on the land in a trespassory manner. In a way therefore the claim of the plaintiff is more like a claim of ownership of the land in dispute than one in trespass.
The law is settled that an original trespasser in exclusive possession can maintain an action in trespass against a later trespasser whose possession whether taken by force or not would be clearly adverse to that of the original trespasser. See Asher v. Whitlock (1865) LR 1QB 1 and Pius Amako v. Obiefuna (1974) 3 SC 67 at 77. In effect, the plaintiff would be able to maintain an action in trespass against the whole world except the true owner.
In Amako v. Obiefuna (supra) at p. 78 the Supreme Court said Inter alia:
“Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, or he has the right to such possession of the land in dispute. But once a defendant claims to be the owner of the land in dispute, title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant”.
The defence of the defendant in the case on hand is that he is the owner of the land and that he had himself lent the land to the plaintiff. The defendant claimed that he had possessed the land for 33 years. The trial court which saw and heard the witnesses testify held that the witnesses called by the defendant were elderly and more likely to know the history of the land as against the witnesses called by the plaintiff whom the trial court described as ‘youths’ who would not know the origins of the land. The trial court went further to say that during the inspection of the land in dispute the defence witnesses demonstrated their knowledge of the matter upon which they testified when they showed the boundaries of the land in dispute. The trial courts said on the point:
“… and the 3 (three) witnesses called by Kuna Dogo they were all elders and they knew the origin of the place and showed the farmland before the court at the time the court visited the farm …”
This was the trial court’s way of saying that it preferred and accepted the evidence of the defence witnesses as against those of the plaintiffs. With respect to the contention that the witnesses of the defendant had testified that they were not physically present when the defendant’ lent out the land to the plaintiff hut were told later, I am in agreement that whatever the witnesses were told by the defendant or anyone else in the absence of the plaintiff would in the circumstances amount to hearsay, But this aspect becomes insignificant once the trial court had accepted the defence evidence that the defendant had been on the land for 33 years. The inference to be drawn from the evidence that the defendant had been on the land for 33 years is that the plaintiff derived his possession from the defendant either forcibly or by some agreement. Whichever was the case; this would defeat the case of the plaintiff.
In Emarieru v. Ovirie (1977) 2 SC 31 at 42 -43, the Supreme Court per Udo Udoma J.S.C. observed:
“Suffice it to say that in our view the Customary Court showed proper and sufficient appreciation of the issues in controversy between the parties, which issues may accurately be described as peculiarly within its knowledge, and its judgment in such matters should not have been disturbed. Indeed that was the view long ago expressed by the Privy Council in Abakah Nthah v. Bennieh 2 WACA 1 when their Lordships said at page 3:
“It appears to their Lordships that decisions of Native Tribunals on such matters which are peculiarly within their knowledge, arrived at after fair hearing of relevant evidence, should not be disturbed without very clear proof that they are wrong”.
The lower court agreed with the submission of the plaintiff’s counsel that the trial court was in error to have rejected the evidence of some of the plaintiff’s witnesses because they were youths. Generally speaking, it may be an unwise course for a court to use disparity in the ages of witnesses as a guide to their credit worthiness but it seems to me that the circumstances of a particular case may dictate the necessity to consider the age of a particular witness against when the events upon which he testified occurred. For instance a thirty year old witness who testified on an event that happened twenty-five years ago when he was a toddler cannot be really achieved. The trial court had out of native commonsense reasoned that the elderly witnesses coiled by the defendants were likely to be more creditworthy in their evidence as to the origins of the possession ascribed to the parties in respect of the land in dispute since the possessions started some years back.
The conclusion of the lower court that the witnesses called by the plaintiff had proved plaintiffs claim was a usurpation of a function which belongs to a trial court. The evidence given by plaintiff’s witnesses could only have established the claim of the plaintiff if the trial court had found the evidence credible and acceptable. Once the trial court had rejected the evidence, it was an error on the part of the lower court to have substituted its view of the evidence for that of the trial court which heard and saw the witnesses testify: See Balogun & Ors. V Agboola (1974)1 All NLR (Part. II) 66 at 73; Chief Victor Woluchem & Ors. v. Chief Simon Gudi (1981)5 SC 291 at 326.
The Upper Area Court, Gombe was similarly in error to have ordered a retrial of the case on a ground I have found difficult to decipher from the records. In the view of the Upper Area Court, the trial court had not fully considered the case of the parties. The Upper Area Court said:
“… I have read the record of proceedings of the lower court and I heard from the appellant and the respondent witnesses and to the unsatisfactory statement according to my own understanding. I have observed that the statement is not fully considered, the reason is that the appellant is saying he cleared the place for 11 years the same with the statement made by the witnesses the court has said nothing on what the respondent answered, only the court has explained that Kuna Dogo owned the land for the past 33 years as the witnesses but not the one who had been sued and lending the farm does not show the remaining years or who is in possession at the remaining years and the appellant is saying 11 years so because of this the case should be re-trial (sic) …”.
I think the Upper Area Court in the above passage was saying that the defendant had not come forward to testify how and in what manner he lent his farm to the plaintiff and that the evidence that the defendant had been in possession for 33 years came from the witnesses called by the defendant and not the defendant himself. My answer is that a defendant is not always obliged to testify in a case brought against him. The plaintiff’s case may be so weak such that the need to call on the defendant to testify or call witnesses may not arise. Further the witnesses called by a defendant may give evidence credible enough as to release the defendant from the necessity to testify. In the instant case, the trial court had accepted the case of the defendant and rejected that of the plaintiff. The matter in my view must end there.
In the final conclusion, I allow this appeal. The judgments of the High Court of Bauchi State (given in its appellate jurisdiction on 27-7-92 and that of the Gombe Upper Area Court given on 5-6-90 are set aside. The judgment of the Gombe Civil Area Court given on 28-3-90 is restored. There shall be N500.00 costs to the defendant/appellant.
Other Citations: (1997)LCN/0324(CA)
