Dondoor Ieka & Ors V. Ikyereve Tyo (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

In this case, the plaintiff (now the respondent) sued the three defendants (now the appellants) in the Grade II Area Court of Nyamtsor, sitting at Abwa, Benue State, claiming the ownership of a parcel of land on which the appellants were encroaching. He stated his case before the trial court concluding thus:-

“I am praying the court to declare me the owner of the land in dispute because it belongs to my fore-fathers. I also want the court to order the defendants and their agents to stop trespassing on the disputed land.”

The respondent’s case as gauged from the record is that his father was farming the land in dispute, sharing boundary with one Uta Agele at the southern part of the land and that the appellants were not sharing boundaries with his father. After his father’s death, his uncle, Iverper Anenge took possession of the land and was farming it. When Uta Agele left the disputed land to settle at the edge of Dura stream, the respondent came and settled at his ruin. As at 1995, the respondent had lived on the disputed land for 36 years and during this period, Gbo Asema, his uncle died and was buried on the disputed land.

Many relations of the respondent were buried there thereafter. These included his mother, two daughters, a son, a brother and a host of others. All these people were buried by the respondent on the disputed land. The appellant’s father was alive but he did not complain. It was in February, 1994 that the appellants came to construct a compound on the disputed land but the respondent refused.

On the part of the appellants, it is their case that the land in dispute was inherited from their father, leka. They farmed the land sharing boundaries with Shima Uba and Vembe Ayom at the eastern part of the land. They shared northern boundary with Yange Ugoh at achiha tree that is partly burnt. It was when their elder brother died in 1963 that their mother’s relations took them to Mbaade sub-kindred of Mbagen. They left the land under the care of one Ityoher Ugoh who gave the said land to Gbor Asema when the latter was appointed the kindred Head of Mbaakura in order to settle there. Gbor Asema is a relation of the respondent and he, it was who, asked the respondent to come and join him on the disputed land. According to the appellants, this arrangement was accepted by Ityoher Ugoh and the respondent came and settled on the disputed land in 1965. It was Ityoher Ugo who informed the appellants of this arrangement in 1965. He also told other settlers on the disputed land that the land belonged to the appellants and that no person should plant a tree on the land. Other people who had settled on the disputed land vacated the land leaving the respondent alone. When the 3rd appellant came unto the land in 1988 to settle, the respondent refused him entry. The 1st appellant also came in 1993 to dig a well at a place on the disputed land. He also sent one Nyamshar Agan to plant some palm trees but the respondent went and invited the elders telling them that he would leave the land for the appellants. When the 1st appellant came to build a compound on the disputed land, the respondent still told the elders and the District Head that he would vacate the land for the appellants. There were series of arbitration over the land and the respondent always indicated that he would leave the land for the appellants which he never did.

The respondent called two witnesses described in the records as PW2 and PW3 respectively. They will be referred to, by me as PW1 and PW2 respectively. The appellants called three witnesses as DW1, DW2 and DW3 respectively. No exhibits were tendered or admitted in evidence. At the end of the evidence, there was a visit to the locus-in-quo and judgment was delivered wherein the trial court alluded to the fact that the appellants had filed a counter-claim, claiming a declaration of title to the land in dispute and a perpetual restraint order. Throughout the appellants’ case, no mention was made of any counter-claim. The trial court concluded as follows:-

“Since the plaintiff (respondent) has radical title over the disputed land, we believe him that his land is as was shown at the locus. The claim of the plaintiff (respondent) succeeds in toto since he has proved his case on the balance of probability. The defendants’ (appellants’) counter-claim succeeds partly. The portion of land (sic) the plaintiff (respondent) is not disputing with his (sic) to our minds, is awarded to him (sic). That is from the locus (sic) bean tress on the Northern boundary following Upirkya stream to a road that starts from Tse-Ugoh to Anchiha Sokpo motorable road. The defendants (appellants) shall vacate the land for the plaintiff (respondent). The 1st defendant’s (1st appellant’s) compound be demolished after 30 days if there is no appeal.” (Brackets are by me).

The appellants were dissatisfied with this decision and appealed to the Customary Court of Appeal of Benue State. Three grounds of appeal were filed but by leave of the Customary Court of Appeal (now hereinafter referred to as “the lower court”), two additional grounds of appeal were filed. By yet another leave three further additional grounds of appeal were filed in that court. At the hearing of the appeal, the three original grounds of appeal were abandoned and struck out. That leaves the three additional grounds and the two further additional grounds of appeal to be argued by the appellants. These five grounds were treated as grounds one to five. These grounds shorn of their particulars are:-

1. The trial court erred in law by holding that the respondent acquired the disputed land by an absolute grant.
2. The trial court erred in law by basing its decision on an alleged customary arbitration.
3. The trial Area Court erred in Jaw when it held at page 26 of the printed record that the respondent succeeded in his claim since he “has proved his case on a balance of probability” and proceeded to declare title to the disputed land to him when he respondent) did not define the land he was claiming from appellants.
4. The Area court erred in law to have suo motu ordered the 1st defendant’s/appellant’s compound to be demolished when the respondent himself never prayed for its demolition.
5. The decision of the trial Area Court is against the weight of evidence.

The appeal was argued and dismissed on the 20th day of February, 1998. Being dissatisfied by this decision, the appellants have ex debito justitae further appealed to this court. The appellants filed their notice of appeal on the 9th day of March, 1998 consisting of only one ground of appeal. By the leave of the Court granted on the 1st day of November, 2000 the appellants were allowed to file and argue four additional grounds of appeal which were deemed filed and served on the same date. These additional grounds are reproduced hereunder:

1. The Customary Court of Appeal misdirected itself in law when it simply held that there was customary arbitration and parties submitted themselves to its decision without adverting its mind to the issues that arose out of it.

Particulars of Misdirection

(a) The issue(s) and arguments of parties on the customary arbitration went far beyond the mere fact of the existence or otherwise of customary arbitration and submission of parties to it or not.

(b) The learned Customary Court of Appeal failed to properly address the question of customary arbitration as canvassed before it with a view to resolving the issues arising or that arose from it.

2. The Customary Court of Appeal erred in law in holding that the respondent proved his root of title to the disputed land before the trial Area Court.

Particulars of Misdirection