Audu Maisamari & Ors v. Sabulu Giwa (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED DANJUMA, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Gombe State High Court of Justice delivered by Hon. Justice H. S. Mohammed and Hon. Justice D. S. Sikkam on 4th October, 2022 in appeal No: GM/14A/2020, wherein the said court affirmed the decision of the Upper Area Court, BamBam. Dissatisfied with the judgment of the lower court, the appellants appealed to this court.

Statement of relevant facts

The claim of the respondent as plaintiff before the trial Upper Area Court, Bambam, was for declaration of title to portions of land which he allegedly purchased in 1979 from one Yolibwa and has been in possession for forty (40) years until sometime in 2019 when the appellants, then defendants at the trial court, began to lay claim over the land in dispute to being a communal land.

The respondent was plaintiff before the trial court presented 3 witnesses, while the appellants as defendants presented seven (7) witnesses, all of who confirmed that there was a sale of land to the respondent by the said Yolibwa, only disputing the year of the sale and the lack of authority by the respondents vendor to carry out the sale.

At the conclusion of the hearing, judgment was entered in favour of the respondent as plaintiff. The appellants being dissatisfied with the decision of the trial Upper Area Court, Bambam, appealed to the Gombe State High Court of Justice sitting on appeals which court confirmed the judgment of the trial court, hence the instant appeal to this court.

The respondent also filed a notice of preliminary objection contending that the appeal is incompetent thereby depriving this court of the jurisdiction to entertain it.

Issues for determination

In their amended brief of argument dated 28th September, 2023 and filed 6th October, 2023, the appellants through their counsel Mr. H. I. Yerima, Esq., raised the following issues for determination:

1. Whether considering the communal land holding of the land in dispute and particularly the evidence of Audu Maisamari, the 7th defence witness, the purported sale of the farmland to the respondent is not, ab-initio, void? (Distilled from ground 1).
2. Whether the lower court was wrong in law to have applied the limitation law in this matter that had to do with customary land holding? (Distilled from ground 2).
3. Whether or not the lower court was right in holding that the trial court properly evaluated the evidence when the respondent failed to prove the root of his title and that of his vendor? (Distilled from grounds 3 and 4).

On issue one submitted for determination, learned counsel to the appellants Mr. H. I. Yerima, Esq., stated that the respondent as plaintiff at the trial court, claimed that he bought the farmland, subject matter of this appeal, from one Yolibwa and thus the onus is on him to prove to the satisfaction of the court the root of title of Yolibwa. Counsel to the appellant contended that the three (3) witnesses called by the respondent at the trial court failed to prove the root of title of Yolibwa as none of them established by evidence how he got the land.

It was submitted that the evidence of Audu Maisamari clearly established those who cleared the farmland as members of the Lobwati Clan and how the land was lastly entrusted to Yolibwa.

That it follows, the land in issue, being a family land, no one has personal capacity to sell the land. That the law is settled that where the head of the family purports to sell family property in his personal capacity as the beneficial owner, such transaction is void ab-initio. Counsel to the appellants cited the case of Odekilekun v. Hassan (1997) 54 LRCN 2819, to ground his submission.

Learned counsel to the appellants submitted that the evidence of the respondents witnesses alleged that Yolibwa sold the land as his personal property but failed to establish how Yolibwa acquire the land. That there is evidence that the family land was entrusted to him and the fact that he purported to have sold the family land as his property renders the sale null and void and the purchaser acquire no title. Reliance was placed on the case of Ojo v. Kamalu (2006) 6 WRN 110; (2006) 136 LRCN 1130.

Further, counsel to the appellants submitted for the appellants that the two lower courts did not appreciate the facts and evidence in this case when they held that the respondent proved his case. That here, there is violation of the principle of law dealing with the disposition of family property which has occasioned miscarriage of justice to the appellants.