Abraham Sakari V. Bako Kunini & Anor (2000)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A

This is an appeal against a judgment of the High Court of Justice, Taraba State, holden at Jalingo in its appellate jurisdiction in Suit No. CGSJ/25A/90 wherein it unanimously dismissed with N100.00 costs the appeal of the appellant, which had gone to them on appeal against the concurrent findings of both the Area Court No.2, Jalingo, and the Upper Area Court, Jalingo, which had held that the fishing pond called “NYAWAU” belonged to the plaintiffs/respondents and not the defendant/appellant.

At the Area Court No. 2 Taraba State, sitting at Jalingo the plaintiffs (who are now the respondents) sued the defendant (who is now the appellant) claiming as follows:

“I am complaining against Abraham, claiming my fishing pond. The fishing pond we were using it together but there is a demarcation between us. There was a time when the deposed Emir of Muri Umaru Tukur told us he has transferred the pond to the Emirate Council for the purpose of fishing festival, so the defendant told me that he was going to Yola to employ a lawyer who will stand in for us to take back our pond, but later the defendant went and sold the pond to other people. From there, we came to Jalingo and told the Emir’s Secretary, Hamman Joda who told us to go and wait when the Jenjo people are already fishing in the pond. From there we went to Kunini and complained to Fafida who also told us to be patient until when the Emir come. Later the defendant sold it again the next season to the same people he sold to, during the last season, this time we went to Wakili Malle who was then in charge of all the affairs of Muri Emirate Council and complained to him but he told us that he has nothing to do with the problem. From there we went to court at Kunini and reported the matter. Already the defendant has taken away money from the people N1,000.00k so the court directed that we be given our share too, so, the people brought N800.00k to the court which was given to us, from there the court told us to manage our portion of the pond and the defendant also to take charge of his portion, but when we put our people to manage our portion the defendant went and drove them away, because of this, I went to court and complained and the court asked the defendant to withdraw his people. That is all my complaint.”

I must state right from the word go, that this case has been rather difficult to understand as there has been much incoherence, not only in the particulars of claim, but also the evidence of both the plaintiffs and the defendant. However, being a case that started from the Area Court, one has to give a lot of latitude, which one would not have given in a case that was tried in the High Court with pleadings. For a start, there was no Survey Plan filed in this case, as the fishing pond in dispute was not a private or man-made pond. Rather it was a natural pond that flowed not only through the village of the plaintiffs known as Kunini, but also to other villages, including that of the defendant known as the “Jenjos”. The fishing pond in dispute is therefore the area that passes through the territorial jurisdiction of the plaintiffs’ land that is now in dispute. According to the 1st plaintiff in one of his interlocutory remarks to the court “we sold the fishing rights for that year and not the water”. According to the evidence of the plaintiffs, when they first came to Kunini, they first met Munga people who migrated to the other side a long time ago. When these Munga people were leaving they requested a horse from our people in place of the pond, we came from Kwararafa.

Another aspect of the story as to how the plaintiffs came to be in possession of the fishing pond in dispute was given to the court by PW1 (Wakili Umar) as follows:

“We migrated to Numan because all we have had finished and later we decided to go to the Emir of Muri Mafindi. The Emir told us not to go back to Numan that he would give us a letter to Kunini to see Galadima who would give us a fishing pond, and to farm. We gave the letter to Galadims who called Dan-Iya and informed him of our arrival, then Dan-Iya and Haram went and showed us the farmland and fishing pond respectively then Haram showed us another pond again making two ponds. The Haram took us to the second pond and showed us a certain place where we can fish and not to fish in the other area because it belonged to the Jenjo people. That is all my statement.”

Cross-examined by the defendant as to the means by which they could identify the demarcation, the same PW1 answered as follows:

“There is an ant hill and from the South there is a small flow in of water into the pond.”

There was also the evidence that the boundary marks between the pond of the Kuninis (plaintiffs) and that of the Jenjos (defendant) was a palm tree on one side and an Anthill on the other. Three other witnesses also testified for the plaintiffs, (i.e PW1, 3 and 4) confirming that the fishing pond in dispute belonged to plaintiffs, and that they have never seen the defendant (the Jenjos) fishing in that area of the pond. There was also evidence by PW2 (Moh’d Jauro) to the effect that part of the fishes caught were usually sent to the Emir of Muri Mafindi.

On the other hand, the defendant opened his case with the evidence of one Jinna (DW1) whose evidence was a complete negation of all that the defendant stood for. According to the evidence of DW1 at p. 10 of the records.

“All I know is that it was the father of the defendant who gave the fishing pond to my grandfather who is also dead, so now I am the owner of the pond in dispute. I have never known any other person to own the pond apart from us …”

The defendant called a total of seven witnesses including himself and the sum total of their evidence was that they were the first settlers on the land in dispute. According to defendant himself, who testified as DW 7:

“All I know is that our parents told us that the first time they came to the area, there was nobody and they took possession of the water in dispute and shared it among the wards and they have a certain ritual called Danban and Zaitai and we were told that they started living there since 1900…” At the end of the evidence the trial court members went on inspection of the locus in quo on 4/9/89 to see things for themselves, in the presence of the parties and the defence counsel.