Dali Ufayo V. Dalyop Datiri (2007)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

 Daylop Datiri the initial respondent before this court initiated this action in Suit No. CV 160/93 as plaintiff before the Grade One Area Court Barkin Ladi on 19/4/93 wherein he claimed against the appellant/defendant as follows:-

“I suit the defendant claiming my farmland from him because I borrowed him a farmland to farm and is now about 23 years, and since he is enjoying my farmland, he has never given me anything according to our custom i.e. Berom and it happened that in 1987 I had a problem and I went to him and borrowed the sum of N200.00k and after six months he came to me in my house and he demanded a receipt from me and I asked him receipt for what. And he replied me that I should give him a receipt on that farmland I borrowed him because of the N200.00k he borrowed me and told him that I was not going to give him any receipt at all because I did not sell that farm for him, therefore he should wait I will refund his money the sum of N200.00k, from there he left my house, after that I look for him money the sum of N200.00k and I took the money to him but he refused to receive the money as a result of this, I went and inform his hardo by name Dachatu and he sent for him and he came and when his hardo asked him he told the hardo that he bought the farmland from me and I told the hardo that I did not sale any farm to the defendant at all. From there the defendant went and reported me to our village head of Jol, and I went and the village head asked me, whether I sold the farmland to the defendant and I told him, no, from there the village head advised the defendant if its true he bought a farmland from me then he can go and sue me in Court but he told the village head that he will never reported me in court. That is why I decided to sue him. He should leave my farmland for me and let him collect his credit the sum of N200.00k that is all.” (sic).

The defendant denied the claim. When the plaintiff was asked to adduce evidence in support of his claim by the trial court he said he had no witnesses of the transaction. On the other hand the defendant testified and called 2 witnesses to show that the farmland was sold to him by the plaintiff for the sum of N200.00k and gave commission of N5 to the witnesses who witnessed the transaction about 10 years ago and had since been in possession and farming the farmland. In a considered judgment delivered by the trial court on the 15/7/93, the Court dismissed the claim of the plaintiff in its entirety.

Dissatisfied the plaintiff appealed to the Customary Court of Appeal, Jos on one Original ground of appeal but with the leave of the Court granted on 8/6/94 filed 3 additional grounds of appeal. The Customary Court of Appeal, Jos, which will henceforth be referred to as the lower court, on hearing the appeal allowed it and conferred title of the farmland on the plaintiff/appellant before it on the ground that the respondent failed to adduce evidence in support of the customary sale which ought to have been witnessed by a ward head.

The defendant/respondent being dissatisfied with the decision of the lower court has now appealed to this Court on five grounds of appeal.

Parties filed and exchanged their respective briefs in this appeal and from the five grounds of appeal filed the appellant has distilled these issues:-

1. Was the CCA right in holding that the burden of proof shifted to the appellant to show that the respondent had been divested of his title, when the latter had not discharged the burden on him as a plaintiff to show that the sum of N200 he received from the farmer was a loan and not money for the sale of the land in dispute.

2. Assuming and not conceding that the burden of proof had shifted to the appellant was the CCA light in holding that none of the appellant’s witnesses witnessed the sale transaction, and therefore the appellant had not discharged his burden?

3. Was the CCA right in taking a judicial notice of the purported custom of the people of Plateau State that in a customary sale transaction, a ward head must witness the transaction to give it legality without evidence of notorious application of same?

4. Assuming and not conceding that the CCA was right in taking judicial notice as it did, was it not sufficient that the respondent, been (sic) the ward head of the area in dispute was a patty to the transaction?

The respondent in his brief of argument deemed filed by this court on the 2/11/06 raised these issues:-

1. Whether the six grounds of appeal filed by the appellant in this appeal are competent ground and if the ground of appeal are incompetent whether the notice of appeal is valid.

2. Having regard to the claims of the parties at the trial Court whom does the onus lie on to prove sale.