Garkuwa Shugabandaruzu Zhitsu Sossa V. Ibrahim Alhassan Zhitsu Fokpo (2000)

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MUSDAPHER, J.C.A. 

The plaintiff, Ibrahim Alhassan Zhitsu Fikpo sued in a representative capacity of his people of Fokpo, Shugaba Ndaruzu Zhitsu Sossa for himself and on behalf of Sossa village community, before the Upper Area Court No. 1 Minna, Hon. Baba Audu Mohammed, for the following amended reliefs:-

“1. A declaration of title to a piece of land known and called Fokpo land lying and situated between Mambe and Gbade land to the east, Nku land to the South and Elogi land to the North and Lugwa land to the West, more particularly Fadama land of Batazi Zown, Checepan, Ekowasa, Chikangi and Zabe. And land farm of Ningi, Bayanbe and Lukuwugongu together with all fishing ponds thereon.

2. An order of injunction restraining the defendant, his agents, privies, servants or anybody from Sossa village (whether in Sossa or outside Sossa village) from cultivating, farming or dealing with the said Fokpo land in any way that will change the character of the said land and the ponds belonging to the plaintiff that are situated on the said land.
3. Claim for the sum of N15,000.00 for trespass”.

The defendant denied the plaintiff’s claim and also filed a counter-claim praying for the following reliefs:-

1. A declaration of title to all piece or parcel of land lying and situated between Sossa village and Fokpo village including but not limited to the following, Zhidogi, Eko-Nupegi, Kogigi, Aducita, Edinsagi, Gbogbo, Etieyi, Egbagi, Douchi Kpeba, Edinadara and Ekosa-Chigi.
2. The defendant also seeks a declaration of title to these ponds, Lufuchegi and Eyi.
3. N30,000.00 as general damages.

The plaintiff also denied the counter-claim and the matter as aforesaid commenced before the Upper Area Court Minna constituted by the above mentioned single Judge on the 30/5/994. At the trial, the plaintiff called four witnesses in proof of this case against the defendant. At the close of the plaintiff’s case, the trial Judge called the defendants to lead evidence. It must also be mentioned at this stage that the trial Judge visited the disputed land twice and come to the conclusion that the parties were fighting over the same land. In any event, when the plaintiff closed its case on 6/3/96, the case was adjourned for the defence to open on 2/4/96. On the application of the learned counsel for the defendant, the case was on the 2/4/96 further adjourned to 15/4/96. On the 15/4/96, the defence counsel sent a letter for adjournment and the matter was further adjourned to 15/5/96 for defence. On 15/5/96 the defence counsel was in court and asked for a further adjournment. The trial court granted the application but as the LAST ADJOURNMENT to 12/6/96. On the 12/6/96, the defence called one witness and at the instance of the defence, the matter was again adjourned to 17/6/96 for continuation of defence. On the 17/6/96, the defence counsel did not appear but sent a letter claiming that he was indisposed and despite the opposition by the plaintiff’s counsel, the matter was again adjourned to the 21/6/96 for continuation of defence. 21/6/96 was a Public Holiday, the case was adjourned for the defence for last time on the 24/6/96, in the presence of the defence counsel, the matter at his instance was again adjourned to 26/6/96. On the 26/6/96, the learned counsel for the defendant yet failed to appear and the court granted the last adjournment. The court adjourned the matter to the 28/6/96 for the defence. The court also warned that if the defence counsel or the defendant fails to appear, it would close the defence. On the 28/6/96 the defence failed to appear in court. It is also evident from the record that the defendant only appeared in court at the beginning of the trial. The matter was again adjourned to the 1/7/96. When again the defence counsel and the defendant failed to appear, the trial Judge then closed the defence. The plaintiff’s counsel addressed the court.

In his judgment delivered on the 8/7/96, the Upper Area Court granted declaration of title of the land in dispute to the plaintiff only. The court refused to give any damages for trespass. The defendants were further allowed to remain on the land as customary tenants without the payment of tribute, but the consent of the plaintiff must be sought for any other use of the land by the defendant. Both the defendant and the plaintiff felt aggrieved with the decision of the Upper Area Court and filed an appeal and cross-appeal on a number of grounds to the High Court of Niger State on its appellate jurisdiction. At the hearing of the appeals before it, learned counsel addressed the Court. But before the judgment was delivered one of the two Judges who heard the appeal died and the remaining Judge read the judgment of the court. In the judgment, the defendant’s appeal was dismissed and the plaintiff’s cross-appeal was partially successful. The High Court sitting on appeal varied the order of the trial Upper Area Court. It held thus:

” (cross-appellant) (i.e. the plaintiff’s) rights over the land is still superior and paramount, (the rights) should however be exercised in accordance with the native law and custom prevailing in the area that is, by allotment of land in return for tributes from the appellant/cross respondent (i.e. the defendant)”.

The defendant felt unhappy with the judgment of the High Court sitting on appeal and has with the leave of the High Court appealed to this court. The original notice of appeal contained three grounds of appeal. It was with the leave of this court that the defendant was granted to raise and argue additional grounds of appeal on fresh points which were not raised or decided by the trial court. Leave was also granted by this court to further amend the notice of appeal. Five grounds of appeal were filed in the further amended notice of appeal. It is noteworthy just to say in passing that Grounds 1 and 2 are complaining about the same matter. They both complained against the competency and the jurisdiction of a single Judge of the Upper Area Court to adjudicate on the matter. It is not the number of grounds filed that determines the success of an appeal but the substance. Repetition of complaints in the grounds is unnecessary. In any events, two issues for determination have been formulated and submitted to this court for determination. Now in this appeal, the defendant shall be referred to as the appellant while the plaintiff shall be referred to as the respondent. As clearly indicated, both parties in compliance with the rules of court have filed and exchanged briefs. The issues formulated by the appellant are:-

”1. Whether the respondent had proved a positive titled to the land in dispute.

2. Whether the lower court’s decision can be sustained in law and in view also of the trial court’s lack of jurisdiction and breach of the appellant’s right of fair hearing”.

Issue No.1

It is conceded that an appellate court should not ordinarily tamper with the concurrent finding of facts of two lower courts. However, it is submitted by the appellant’s counsel, the appellate court may do so where there are special circumstances. Learned counsel referred to the case of Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101 at 112. It is submitted that the respondent has failed to prove title to the land in dispute as enunciated by the case of Idundun & others v. Okumagba (1976) 9-10 SC 227 at 248; Uzochuwku v. Eri (1997) 7 SCNJ 1 (1997)7 NWLR (Pt. 514) 535; Ugbuokwelu v. Meanafunkwa (1994) 5 SCNJ 24; (1994) 4 NWLR (Pt.341) 676. It is submitted that the appellant did not prove title by reference to any of the five ways recognised in the above cases. It is further submitted that there was no dispute whatever that the appellant and his people are in possession of the land. The learned trial Judge and the respondent both agree, therefore, there is a presumption in favour of the appellant’s title to the land. It is also argued that the identity of the land the respondent claimed declaration was not specific vide (1995) 12 SCNJ 79; Ojiako v. Ewuru (1995) 9 NWLR (Pt.420) 460; Obawale v. Coker (1994) 18B LRCN 169 at 200 (1994) 5 NWLR (pt. 345)416.

It is submitted that the assessment of the evidence by the trial court was full of contradiction such as to the identity, name and size of the area and was inadequate for the grant of title. See Nwoke v. Okere (1994) 17 LRCN 123 at 139-140(1994) 5 NWLR (pt. 343) 159.

For the respondent, it is submitted that the evidence led by the respondents entitled them to a declaration. They adduced evidence from the communities they share common boundaries who testified as to their ownership of the identified land. That is, the land on which the appellant’s people are settled, the farmland cultivated by them and the ponds in which they fish. PW1 testified that the Sossa people are customary tenants of the respondent and that the Sossa people pay tributes to the respondents PW2, PW3 and PW4 all corroborated the testimony of PW1. DW1 who gave evidence in defence only heard from his grand father that the land belonged to Sossa people. It is submitted that the learned trial Judge properly appraised and evaluated the evidence before him, before he came to the conclusion that the respondent’s people were entitled to a grant of title.

It is submitted that on the balance of probabilities the respondents have proved their case. The complaints of the appellant are petty and trivial. There were no material contradictions as to create any doubt in the mind of the trial court.