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.

The plaintiffs had no counsel. At the locus, the plaintiffs showed the court the palm tree and the anthill which they said were the boundary marks that demarcated plaintiffs’ fishing pond from that of the defendant. The defendant on the other hand showed no boundary marks, but contended that the anthill shown by the plaintiffs was a mere heap of sand placed there by human beings, while the palm tree shown was a wild palm tree that grew there normally like others that grew near the place.

At the end of the inspection, the court members came back and ultimately made the following findings and gave judgment in favour of the plaintiffs as follows:

“That the Muri Emirate is the controller of the whole area within the Emirate and as such we are aware of the owner of the water (at Kunini) in dispute. The fact that the Emir of Muri from Mafindi up to Umar used to send people to Kunini for the use of the water in dispute through Galadima to Ardido Haram and Sarkin Ruwa confirms that the subject matter in question, the Nyawwal belongs to the plaintiffs. If this water had been the property of the defendant, the Emir would have been directing the fisherman to Ubandoma at Jen and not through Galadima to Ardido Haram at Kunini. That the body of the water, Nyawal, is situated entirely within the jurisdiction of the Kunini district.

That the body of the water, Nyawal, is laying from Numan through Kunini to Lau and to our understaning at any point the water reaches a village, historically, it belongs to the people within the location. Hence, at Kunini Benbal, Nyawwal, where the subject matter is located and that historical back-ground has also revealed that the people at Kunini were the people who used to fish at the water and that the present dispute arises as the result of the defendant selling the water to some other people without the consent of the Kuninis, the plaintiffs. We therefore agree with the statement of the plaintiffs that they purchased this water, the Nyawwal, from the Munga people because from the evidence before us the Jenjo claimed to come in company of the Munga people who sold the water to the plaintiffs and specifically told the plaintiffs not to interfere with the water belonging to the defendant and also show the demarcation between the two waters, we are satisfied with the explanation of the demarcation given to us in court by the plaintiffs and their witnesses because we found the description to be correct as told to us in court. When we visited the locus in quo, the palm tree and the anthill at the other side of the water are there exactly as described. The claim of the defendant that the palm tree was not planted is therefore unacceptable to us and also that that the anthill is a pack of sand is also not acceptable to us because up to the time we visited the site the hill is still there without grasses and does not look like man made something.”

“Judgment

In view of the above, we are satisfied that the water in dispute (Nyawwal) is the property of the plaintiffs Bako and Bawuro all of Kunini because they have established their title of the water before this court because of this, therefore, we order the defendant to leave the water for the plaintiffs immediately and in addition he will refund to the plaintiffs all their process fees in court.”

The defendant being dissatisfied with above judgment first appealed to the Upper Area Court at Jalingo, and lost. From there he appealed again to the High Court of Taraba State of Nigeria, holden at Jalingo in its appellate jurisdiction and lost again. He has now appealed further to this court on four original grounds which without their particulars read as follows:

“Grounds of Appeal

1. The High Court of Justice erred in law and fact, when it changed the cause of action.
2. The High Court of Justice Jalingo misdirected itself in law and fact, when it held that the respondents are members of Kunini community and can sue as individuals of that community.
3. The High Court of Justice Jalingo erred in law and facts when it held the pond to be under the control of Muri Emirate Council.
4. The High court of Justice Jalingo erred in law and fact when it held that there is nothing wrong with the decision of the Upper Area Court.

Briefs of argument were later filed and exchanged, and issues for determination formulated. The defendant who will hereinafter be referred to as the appellant formulated as many as seven issues for determination from only four grounds. The said issues read as follows:

“Issues for Determination

2.1 Whether the High Court was right when it held that the issue involved is not that of title to the fishing pond but that the respondents were merely asserting their right of fishing in the disputed pond, and then affirming the decision of the Upper Area Court Jalingo which affirmed the decision of the Trial Area Court that, held that, the respondents established their title of water in dispute-as shown on page 31, lines 17-20 of the compiled records?

2.2 Whether the lower court was right to suo motu change the cause of action of the respondents on appeal and then proceeded to enter judgment for the respondents?

2.3 Whether the respondents are competent to initiate the proceeding culminating to this appeal claiming ownership of the fishing pond in view of the finding of the lower court that from the provisions of the Legal Notice No.3 of 1989 applicable in Taraba State, the only competent authority to bring an action against someone who is already in possession of a pond or who has a right of interference in such ponds is the State Government?

2.4 Whether the lower court was right in law when it affirmed the decision of the Upper Area Court Jalingo in view of the fact that the respondents are not competent to initiate the proceedings by virtue of the provision of Legal Notice No. 3 of 1989 applicable in Taraba State?

2.5 Whether the lower court was right in law when it affirmed the decision of the Upper Area Court on the ground that the fact that the Emirs of Muri from Mafindi up to Umar used to send people to Kunini for use of the water in dispute confirmed that the subject matter in question, the ‘Nyawwal’ belongs to the plaintiffs? See page 65 lines (6) – (10) of the compiled records,

2.6 Whether the lower court was right when it held that the fishing pond in dispute was under the control of the Muri Emirate Council? See pages (64) -(65) line (34) and (10 -(6) respectively of the compiled records,

2.7 Whether the respondents (as plaintiffs) had established their title as claimed in accordance with the provision of our laws to warrant the confirmation or affirmation of the decision of the Trial Area Court and the Upper Area Court Jalingo by the lower court?”

In response to the above, the plaintiffs who will hereinafter be referred to as respondents formulated four issues as follows:

“3.01 whether the High Court sitting on appeal on the judgment of the Upper Area Court, Jalingo changed the cause of action or nature of the claim and assuming without conceding that they did, whether the appellant suffered any damage and, or a miscarriage of justice by such alleged change.

3.02 Whether the respondents as plaintiff and member of the Kunini Community has locus standi to institute the action.

3.03 Whether the respondents had established their ownership of the disputed pond,

3.04 Whether the pond in dispute is under the control of the Muri Emirate Council.”

Having set out all the issues formulated as above, I must now observe that it is our first law on brief writing that an issue formulated for determination must arise and be founded on one of the grounds of appeal filed. If it does not so arise it becomes irrelevant and must be struck out. If it was only one issue that was formulated, and that issue did not arise from any of the grounds of appeal filed, then the entire appeal becomes incompetent and must be struck out. See Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157 and Momodu v. Momoh (1991) NWLR (Pt. 169) 608 at 620-621; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514, and Labiyi v. Anretiola Ors, (1992) 8 NWLR (Pt.258) 139.

As already set out above, there are four grounds of appeal and seven issues for determination formulated by the appellant. Under our law, the number of issues should either be the same as the number of grounds of appeal or fewer, in that one issue can be formulated from one, two or more grounds. It is undesirable that, issues should be more than grounds, which would mean that a ground of appeal was being split into two or more. With these rules in mind, I have looked again at the grounds of appeal, and find that the first ground dealt with issue of change of cause of action by the High Court; Ground 2, dealt with the issue of locus standi, Ground 3 dealt with representative capacity of the respondents; and Ground 4 was the omnibus ground complaining of whether the High Court rightly upheld the decision of the Upper Area Court. How come then that there are seven issues instead of four in appellant’s brief? A critical study of the issues in appellant’s brief reveals the following anomalies:

Two issues (i.e. 1 & 2 are formulated from ground 1, on whether the High Court rightly changed the cause of action of respondents. Issue No. 2 is therefore hereby struck out leaving issue 1. Also three issues (i.e. 3, 4 and 6) are formulated on locus standi instead of one. Issues 3 & 6 are therefore hereby struck out leaving issue No. 4. Also, two issues are formulated from the omnibus ground (i.e issues 5 & 7.) Issue No. 5 is therefore hereby struck out leaving Issue 7 as the only omnibus issue from Ground 4.

Having finished with the question whether an issue for determination arose from a ground of appeal filed or not, I now go to another legal objection, namely whether a point of law or an issue raised on appeal was canvassed at the court below or not. The law is that an appellant will not be allowed to raise for the first time in an appellate court, a point of law or issue which was not canvassed at the trial court for the trial Judge to rule on, or pronounce upon; unless with leave of the appellate court. In the instant case there was no question of whether the respondents had “locus standi” or not. It was only just being raised in this court for the first time. The same goes for the question whether Mari Emirate Council controlled the pond in question. At the trial court the question before the court was simply which of the two parties gave a better and more credible traditional evidence, as there were no documents or questions of law involved. The question of who had more acts of ownership or possession was also involved. These were all questions raised in the 1st ground of appeal as to whether the trial Judge of the appellate High Court changed respondents’ cause of action or not. This strictly is a new matter, which I will however consider as issue of jurisdiction seems to be involved, albeit obliquely.

On the whole therefore, grounds 2 and 3 of this appeal are hereby struck out as they raise new issues that were not canvassed at the trial court and or which no leave was obtained form this court. That leaves us with only two issues to consider in this appeal as follows: namely issue No. 1 and 7 in appellants’ brief:

“Issues for Determination

2.1 Whether the High Court was right when it held that the issue involved is not that of title to the fishing pond but that the respondents were merely asserting their right of fishing in the disputed pond, and then affirming the decision of the Upper Area Court Jalingo which affirmed the decision of the trial court that held that the respondents established their title of the water in dispute as shown on page 31 lines 17-20 of the compiled recorder?

2.7 whether the respondents (as plaintiffs) had established their title as claimed in accordance with the provisions of our laws to warrant the confirmation or affirmation of the decision of the Trial Area Court and the Upper Area Court Jalingo by the lower court?”

The main complaint of the appellant was against a passage of the High Court’s Judgment which appeared at p. 71 of the records as follows:

“We wish to point out clearly here that the issue involved is not that of title. We have already pointed this elsewhere in this judgment. The respondents are merely asserting their right of fishing in the disputed pond the right which the appellant attempted to usurp by unilaterally selling out fishing rights in the pond…”

Appellant then pointed out that such a holding by the appellate High Court, Jalingo was in conflict with the claim of the respondent’s which was clearly for ownership or title to the fishing pond. He then submitted that such holding by the learned justices of the appellate High Court gave rise to a gross miscarriage of justice.

In reply to the above, the respondents’ counsel first reproduced the claim of the respondents as they appear at p.1 of the records and then submitted that the said holding of the High Court merely summarised the basis of the complaint of the respondents and did not change any cause of action. It was also argued that it was not possible to resolve respondents’ issue without going into the question of title. Finally on this issue, it was submitted that “whether the claim was for title or for violation of possessory right there was no judgment in favour of the appellant in respect of either by the Area Court 2 or the Upper Area Court which was reversed by the High Court sitting on appeal to necessitate the ground and or the issue arising for determination. This court was therefore urged to dismiss this ground of appeal.

I have carefully considered the two arguments canvassed above, and quite clearly cannot see in what way or ways the learned Justice of the appellate High Court changed Respondents’ “Cause of Action”. The cause of action which the respondents brought to court remained the same from start of the action to the end. In my view, the High Court Judges were merely interpreting or construing the claim of the respondents, which was formulated in a rather unusual way. I must say that the particulars of claim in this case which was also reproduced in the introductory paragraph of this judgment was an essay, rather than a brief statement of one’s complaints. According to the decided cases cause of action simply means; “The factual situation which if substantiated entitles the plaintiff to a remedy against the defendant.”

Sanda v. Kukawa Local Govt. (1991) 2 NWLR (pt. 174) 379 SC.; B. R. T.C. v. Egbuonu (1991) 2 NWLR (Pt.171) 81 at 84: Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 at 682.

On the whole therefore, since the verdict of the court was not altered in any respect against the appellant, I cannot see how the appellant suffered any miscarriage of justice or prejudice. It is my view that the expression “possessory right to the fishing” asserting right of fishing in the disputed pond meant the same thing as “title to fishing pond”.

In effect therefore, Issue No.1 must be resolved in favour of respondents, namely that the appellant High Court Judges did not change any cause of action, and no miscarriage of justice was occasioned by the construction or meaning of respondents’ claim given by the appellate High Court Judges.

Re Issue No.7

“Whether the respondents as (plaintiffs) had established their title as claimed in accordance with provision of our laws to warrant the confirmation of affirmation of the decision of the trial court and the Upper Area Court Jalingo by the lower court.”

Under this issue, it was contended on behalf of the appellant that the evidence of respondents’ case were contradictory. Also the evidence of respondents witnesses showed that title to the disputed fish ponds belonged to the Kuninis as a Community and not to the two respondents as individuals. He therefore urged us to allow the appeal of the appellant.

In reply to the above, it was submitted that the respondents adduced evidence which was accepted not only by the trial Area Court but also by both the Upper Area Court and Appellate High Court all at Jalingo. This was even conceded by the appellant that the concurrent findings of facts should, not ordinarily be disturbed except where exceptional circumstances are shown. The cases of Layinka v. Gegele (1993) 3 NWLR (pt. 283) 518 SC at 522 and NIDB v. De Easy Life Electronics (1999) 4 NWLR (Pt. 597) 8 CA, were cited and relied on.

I have carefully considered the two arguments canvassed above, and find that the case at the Trial Area Court II, Jalingo was fought mainly on facts, with little or no law on either side. Only traditional evidence or history was relied upon. The court later visited the disputed fishing pond in question and saw the boundary marks exactly as they were indicated in evidence of respondents in court. The appellant on the other hand neither described the boundaries of the pond, nor gave any marks or demarcation. The court also virtually took judicial notice of the fact that the Emir always sent people who wanted fish to the respondents. In the court’s view the Emir would not have been doing that if the respondents were not the people in lawful control of the fishing pond in dispute. They therefore gave judgment in favour of the respondents, it is our law that an appellate court which did not have the advantage of seeing and hearing the parties and their witnesses in the witness box should be reluctant to interfere with a decision of a trial court founded on fact, unless such was perverse, unreasonable and not supported by evidence. After going through the entire record of proceedings I cannot see any holding of the Trial Area Court II, Jalingo that could be said to have been perverse, unreasonable or not supported by evidence. Also the court visited the locus in quo and saw what they were talking about. It is my view therefore that, the decision of the trial Court was rightly upheld by both Upper Area Court and the appellate High Court both of Jalingo. (see the cases of Kodilinye v. Odu, (1935) 2 WACA 336; Kuma v. Kuma (1938) 5 WACA 4; Ebba v Ogodo (1984) 1 SCNLR 372. It is also now well established as a principle of our law, that the Supreme Court will not disturb a concurrent finding of two lower courts, unless a substantial error apparent on the face of the record is shown. See Sobakin v. State (1981) 5 SC 75; Okonwo v. Okagbue (1994) 9 NWLR (Pt. 368) 301 at 322 B-C). In the instant case what we have is the concurrent finding of three lower court.

In view of the foregoing, I have no hesitation in holding that the traditional evidence of the respondents at the Trial Court completely overwhelmed those of the appellant, and were rightly accepted. This appeal therefore fails and is hereby dismissed with costs of N4,000.00 (four thousand naira) in favour of respondents.

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Other Citations: (2000)LCN/0876(CA)