Garkuwa Shugabandaruzu Zhitsu Sossa V. Ibrahim Alhassan Zhitsu Fokpo (2000)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A. 

The plaintiff, Ibrahim Alhassan Zhitsu Fikpo sued in a representative capacity of his people of Fokpo, Shugaba Ndaruzu Zhitsu Sossa for himself and on behalf of Sossa village community, before the Upper Area Court No. 1 Minna, Hon. Baba Audu Mohammed, for the following amended reliefs:-

“1. A declaration of title to a piece of land known and called Fokpo land lying and situated between Mambe and Gbade land to the east, Nku land to the South and Elogi land to the North and Lugwa land to the West, more particularly Fadama land of Batazi Zown, Checepan, Ekowasa, Chikangi and Zabe. And land farm of Ningi, Bayanbe and Lukuwugongu together with all fishing ponds thereon.

2. An order of injunction restraining the defendant, his agents, privies, servants or anybody from Sossa village (whether in Sossa or outside Sossa village) from cultivating, farming or dealing with the said Fokpo land in any way that will change the character of the said land and the ponds belonging to the plaintiff that are situated on the said land.
3. Claim for the sum of N15,000.00 for trespass”.

The defendant denied the plaintiff’s claim and also filed a counter-claim praying for the following reliefs:-

1. A declaration of title to all piece or parcel of land lying and situated between Sossa village and Fokpo village including but not limited to the following, Zhidogi, Eko-Nupegi, Kogigi, Aducita, Edinsagi, Gbogbo, Etieyi, Egbagi, Douchi Kpeba, Edinadara and Ekosa-Chigi.
2. The defendant also seeks a declaration of title to these ponds, Lufuchegi and Eyi.
3. N30,000.00 as general damages.

The plaintiff also denied the counter-claim and the matter as aforesaid commenced before the Upper Area Court Minna constituted by the above mentioned single Judge on the 30/5/994. At the trial, the plaintiff called four witnesses in proof of this case against the defendant. At the close of the plaintiff’s case, the trial Judge called the defendants to lead evidence. It must also be mentioned at this stage that the trial Judge visited the disputed land twice and come to the conclusion that the parties were fighting over the same land. In any event, when the plaintiff closed its case on 6/3/96, the case was adjourned for the defence to open on 2/4/96. On the application of the learned counsel for the defendant, the case was on the 2/4/96 further adjourned to 15/4/96. On the 15/4/96, the defence counsel sent a letter for adjournment and the matter was further adjourned to 15/5/96 for defence. On 15/5/96 the defence counsel was in court and asked for a further adjournment. The trial court granted the application but as the LAST ADJOURNMENT to 12/6/96. On the 12/6/96, the defence called one witness and at the instance of the defence, the matter was again adjourned to 17/6/96 for continuation of defence. On the 17/6/96, the defence counsel did not appear but sent a letter claiming that he was indisposed and despite the opposition by the plaintiff’s counsel, the matter was again adjourned to the 21/6/96 for continuation of defence. 21/6/96 was a Public Holiday, the case was adjourned for the defence for last time on the 24/6/96, in the presence of the defence counsel, the matter at his instance was again adjourned to 26/6/96. On the 26/6/96, the learned counsel for the defendant yet failed to appear and the court granted the last adjournment. The court adjourned the matter to the 28/6/96 for the defence. The court also warned that if the defence counsel or the defendant fails to appear, it would close the defence. On the 28/6/96 the defence failed to appear in court. It is also evident from the record that the defendant only appeared in court at the beginning of the trial. The matter was again adjourned to the 1/7/96. When again the defence counsel and the defendant failed to appear, the trial Judge then closed the defence. The plaintiff’s counsel addressed the court.

In his judgment delivered on the 8/7/96, the Upper Area Court granted declaration of title of the land in dispute to the plaintiff only. The court refused to give any damages for trespass. The defendants were further allowed to remain on the land as customary tenants without the payment of tribute, but the consent of the plaintiff must be sought for any other use of the land by the defendant. Both the defendant and the plaintiff felt aggrieved with the decision of the Upper Area Court and filed an appeal and cross-appeal on a number of grounds to the High Court of Niger State on its appellate jurisdiction. At the hearing of the appeals before it, learned counsel addressed the Court. But before the judgment was delivered one of the two Judges who heard the appeal died and the remaining Judge read the judgment of the court. In the judgment, the defendant’s appeal was dismissed and the plaintiff’s cross-appeal was partially successful. The High Court sitting on appeal varied the order of the trial Upper Area Court. It held thus:

” (cross-appellant) (i.e. the plaintiff’s) rights over the land is still superior and paramount, (the rights) should however be exercised in accordance with the native law and custom prevailing in the area that is, by allotment of land in return for tributes from the appellant/cross respondent (i.e. the defendant)”.

The defendant felt unhappy with the judgment of the High Court sitting on appeal and has with the leave of the High Court appealed to this court. The original notice of appeal contained three grounds of appeal. It was with the leave of this court that the defendant was granted to raise and argue additional grounds of appeal on fresh points which were not raised or decided by the trial court. Leave was also granted by this court to further amend the notice of appeal. Five grounds of appeal were filed in the further amended notice of appeal. It is noteworthy just to say in passing that Grounds 1 and 2 are complaining about the same matter. They both complained against the competency and the jurisdiction of a single Judge of the Upper Area Court to adjudicate on the matter. It is not the number of grounds filed that determines the success of an appeal but the substance. Repetition of complaints in the grounds is unnecessary. In any events, two issues for determination have been formulated and submitted to this court for determination. Now in this appeal, the defendant shall be referred to as the appellant while the plaintiff shall be referred to as the respondent. As clearly indicated, both parties in compliance with the rules of court have filed and exchanged briefs. The issues formulated by the appellant are:-

”1. Whether the respondent had proved a positive titled to the land in dispute.

2. Whether the lower court’s decision can be sustained in law and in view also of the trial court’s lack of jurisdiction and breach of the appellant’s right of fair hearing”.

Issue No.1

It is conceded that an appellate court should not ordinarily tamper with the concurrent finding of facts of two lower courts. However, it is submitted by the appellant’s counsel, the appellate court may do so where there are special circumstances. Learned counsel referred to the case of Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101 at 112. It is submitted that the respondent has failed to prove title to the land in dispute as enunciated by the case of Idundun & others v. Okumagba (1976) 9-10 SC 227 at 248; Uzochuwku v. Eri (1997) 7 SCNJ 1 (1997)7 NWLR (Pt. 514) 535; Ugbuokwelu v. Meanafunkwa (1994) 5 SCNJ 24; (1994) 4 NWLR (Pt.341) 676. It is submitted that the appellant did not prove title by reference to any of the five ways recognised in the above cases. It is further submitted that there was no dispute whatever that the appellant and his people are in possession of the land. The learned trial Judge and the respondent both agree, therefore, there is a presumption in favour of the appellant’s title to the land. It is also argued that the identity of the land the respondent claimed declaration was not specific vide (1995) 12 SCNJ 79; Ojiako v. Ewuru (1995) 9 NWLR (Pt.420) 460; Obawale v. Coker (1994) 18B LRCN 169 at 200 (1994) 5 NWLR (pt. 345)416.

It is submitted that the assessment of the evidence by the trial court was full of contradiction such as to the identity, name and size of the area and was inadequate for the grant of title. See Nwoke v. Okere (1994) 17 LRCN 123 at 139-140(1994) 5 NWLR (pt. 343) 159.

For the respondent, it is submitted that the evidence led by the respondents entitled them to a declaration. They adduced evidence from the communities they share common boundaries who testified as to their ownership of the identified land. That is, the land on which the appellant’s people are settled, the farmland cultivated by them and the ponds in which they fish. PW1 testified that the Sossa people are customary tenants of the respondent and that the Sossa people pay tributes to the respondents PW2, PW3 and PW4 all corroborated the testimony of PW1. DW1 who gave evidence in defence only heard from his grand father that the land belonged to Sossa people. It is submitted that the learned trial Judge properly appraised and evaluated the evidence before him, before he came to the conclusion that the respondent’s people were entitled to a grant of title.

It is submitted that on the balance of probabilities the respondents have proved their case. The complaints of the appellant are petty and trivial. There were no material contradictions as to create any doubt in the mind of the trial court.

It is now trite law, that an appellate court will not disturb concurrent findings of fact by the court below unless there is substantial error apparent on the record of proceedings. It is also misleading for a counsel to attack concurrent findings of facts in a ground of appeal (such as grounds 4 and 5 in the instant case) as ‘errors in law’. See Ibodo v. Enarofia (1980) 5/7 SC 42; Chinwemdu v. Mbamali (1980) 3/4 SC 31. Concurrent findings of fact by a trial court and an appeal court should not be disturbed by a further appellate court, where such findings are supported by evidence. Such findings may however be reversed by a further appellate court if there is some miscarriage of justice and violation of some principle of law or procedure. The violation of some principle of law or procedure must be such an erroneous proposition of the law that if that proposition be corrected the findings cannot stand.

The respondent gave evidence of traditional ownership of the land in dispute. They led evidence which the learned trial Judge accepted, that the respondents allowed the appellants to live on the land in dispute and pay tributes to the respondents of the fishing ponds and of economic trees. There is no doubt from the evidence adduced by the respondents that the appellants are in possession of part of the land in dispute. Possession is clearly the essence of customary tenancy, the fact that the appellants are in possession under customary law does not conclusively show that they are absolute owners of the land they possess. See Isiba v. Hanson (1967) 1 All NLR 8. Once it is established that a plaintiff owns the piece of land in dispute, the onus now shifts on the defendant to prove that he has a better title.

In the instant case, both sides claim to be owners of the land by settlement. Each of them therefore has the onus of establishing the facts by evidence. The respondents led evidence which is accepted by both the trial court and the High Court sitting on appeal, that the appellants are their customary tenants and they even pay tributes to the respondents on the fishing ponds and the economic trees. In my view, the respondents have discharged the burden placed upon them, while the appellant failed to adduce any evidence. I am in agreement with the two lower courts that on the evidence adduced, the discretion exercised in favour of respondents in granting them the declaration is fully justified. See Jules v. Ajani (1980) 5/7 SC 96. The respondents in my view have proved ownership by one of the ways stated in the Idundun’s case supra by traditional evidence. There is no apparent error in the findings, the alleged contradictions on the evidence led by the respondents are not material nor did they lead to any miscarriage of justice. There is no dispute as to the identity of the land in question and there was sufficient evidence that the appellants are the customary tenants of the respondent. These are all concurrent findings of fact of the two lower courts. There is nothing shown by the appellant to enable this court to disturb the findings. See John Andy Sons Co. Ltd v. N.C.R.I. (1997) 3 NWLR (Pt.491) 1, Amuda v. Adelodun (1997) NWLR (Pt.506) 480.

The identity of the land in dispute has never been in question, both parties have known the land, the trial court visited the land twice, the identity of the land under these circumstance needs no formal proof, even if the sketch map attached to the pleadings is discarded. See Akinlerinwa v. Oladunjoye (2000) 6 NWLR (pt.659) 92.

It has been held that when traditional history of ownership of land is established and is found to be cogent and not in serious conflict with that of the other side, when accepted by the court can support a claim for declaration of title to land. See Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177. In that case, it was held that evidence of traditional history is acceptable and admissible even if given by the members of the community or of the neighbouring community who share common boundary with the claimants.

Looking at the appellant’s complaints from all corners on the issue of proof appears to me to be a non-starter, which is why I have to resolve the first issue against the appellant.

Issue No.2

The learned counsel for the appellant submits that by virtue of S.4 (b) of the Area Court Law of Niger State, Upper Area Court can only be constituted if it had at least two Judges of that court sitting. The issue raises the competence or the jurisdiction of the court to adjudicate on the matter and is so fundamental that it can be raised at any stage and it is an issue that cannot be waived. See Ishola v. Ajiboye (1994) 19 LRCN 35 (1994) 6 NWLR (Pt. 352) 506. It is submitted that since the trial court had no jurisdiction, the High Court sitting on appeal acted in gross error to have affirmed the decision.

It is further submitted that the appellant was not given fair hearing on the matter, when his case was closed by trial court without serving on the appellant’s counsel hearing notice. The procedure adopted by the trial court was contrary to Order 9 rule 3(1), (2) and (3) of the Area Court Rules. Learned counsel referred to the case of Salu v. Egeibon (1994) 18B LRCH 241 (1994) 6 NWLR (pt.348) 23. It is further submitted that the trial court had failed to be properly guided by the rules of court in its discretion to refuse adjournment and close the case of the appellant. The decision was contrary to S.33 of the 1979 Constitution. This court is therefore urged to declare the trial a nullity and set aside the decision of the High Court affirming it.

For the respondent it is argued that the issue of jurisdiction should have been argued first since it would have ended the matter if dealt with at first. In fact, it is the first issue the respondent identified. It is submitted that the appellant relies on S.4(1) of the Area Courts Law Cap. 8 Laws of Niger State. But the learned counsel argued that the present law came into existence or force on the 10/10/95. See NSLN No. 14 of 1996. It is submitted that the Legal Notice is a subsidiary legislation. See section 74(1) of the Evidence Act Cap 112 LFN 1990 and hearing started in May 1995 which means that the suit was commenced and started before the coming into force of the legal notice on the 10/10/95. It is submitted that the position of the law before the coming into effect of the legal notice was the Area Court Edict of 1967 which provided for a single Upper Area Court.

It is submitted further that by the provisions of S. 6(1)(e) and 2 of the Interpretation Act Cap. 192 LFN, 1990 the repeal or amendment of law will not affect any legal proceedings already commenced and the proceedings may continue as if the enactment has not been amended or repealed. See Onyema v. Oputa (1987) 3 NWLR (pt. 60) 259.

On the question of denial of fair hearing, it is submitted that the record of proceedings reveal otherwise. It is submitted that in all, the appellant asked for ten adjournments to produce defence to the action and prove the counter-claim. The defence counsel was in court on the 8th adjournment the 24/6/96. He applied for adjournment and was granted adjournment to 26/6/96. He failed to turn up in court on the 26/6/96 but sent someone with a letter saying that he was indisposed. The matter was again adjourned. The appellant’s counsel had the duty to find out the next adjourned date. He did not, he failed to appear. It is finally submitted that the defence was given ample opportunity to produce evidence in defence of the respondent’s claim and proof of their counter-claim. The appellant’s counsel was warned on several occasions for delaying tactics by the trial court. It is submitted that the trial Judge had exercised his discretion judiciously and judicially in refusing further adjournment.

Now, there is doubt that by the Legal Notice No. 14 of 1996 published in December 1996, the Revised Edict of the Laws of Niger State 1989 came into force on the 10/10/95. The present suit was filed in 1994 and the hearing began before a single Judge before the commencement of the Revised Edition of the laws. Before the 10/10/95, the Upper Area Court in Niger State is constituted by a single Judge or a Judge with members. There is no dispute whatever that when the case was filed and commenced a single Judge had the competence and jurisdiction to adjudicate on the matter under the provisions of the Area Court Edict of 1967. It has been held that Area Courts are the products of statutory enactments. Therefore their composition, the limits or extent of their jurisdiction must of necessity involve the interpretation and the application of the enabling law or the instrument establishing them. See Wuyep v. Wuyep (1997) 10 NWLR (Pt. 523). Where a court has no jurisdiction to entertain a matter, the court cannot for any reason even if in the interest of justice assume jurisdiction. See Ajayi v. Mil. Adm. Ondo State (1997) 5 NWLR (Pt. 504) 237. A court is said to be competent to adjudicate on a matter when:

1. It is properly constituted as regards the number and qualifications of the members.
2. The subject matter of the case is within its jurisdiction.
3. The case comes before court initiated by due process of law.

See Adeigbe v. Kushimo (1965) 1 All NLR 248: Madukolu v. Nkemdilim 1 (1962) All NLR (Pt. 4) 587 (1962) 2 SCNLR 341. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is intrinsic to the adjudication. Clearly, if in the instant case the current law applied, the court then was not properly constituted and how well the trial was conducted it amounts to an exercise in futility.

The action was filed in 1994 and the trial commenced and the respondent as the plaintiff closed its case and thereafter the appellant began requesting for his numerous adjournments. Now what is the effect of the amendment of the law to the existing suit? It is now settled law that it is cannon of construction that the repeal or amendment of law does not affect any act or powers exercised under it before the repeal or amendment. This is also statutorily recognised in section 1(1)(b) of the Interpretation Act Cap. 112 LFN 1990. see Umeji v. A.G. Imo State (1995) 4 NWLR (Pt. 391) 552, Okafor v. Onianwa (1964) 1 All NLR 348. It is a fundamental rule of our jurisprudence that no statute shall be construed with retrospective effect unless the intention to do so is manifestly clear in the language of the statute. In the instant case, the intention of the retrospective operation of the amendment cannot be read in the revised Edition of the laws of Niger State.

The Supreme Court held that by virtue of Section 6(1) (b) of the Interpretation Act, the repeal of an enactment shall not affect the previous operation of the enactment. See Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668. The law applicable to a cause or matter and therefore the jurisdiction and competence of the court is determined by the existing law or the law prevailing at the time the suit was filed and not by the change of the existing law. It is immaterial that during the trial the law has been repealed. See Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292. On this point, I am of the firm view, that the amendment made on the composition of the court did not oust the competence of the single Upper Area Court Judge to continue and finish with the matter already filed before him. I see no merit on this complaint. The last point is the question whether in the trial before the Upper Area Court; there was a breach of fair hearing as guaranteed by the Constitution. The appellant maintained that he was not given a fair hearing in that when the matter was adjourned from the 28/6/96 to 1st day of July, 1996, he was not informed. I have above in this judgment comprehensively showed the conduct of the defence counsel and the appellant who did not even care to attend the trial. Now on the 26/6/96, the appellant’s counsel wrote to the court to adjourn the matter to a date convenient to the court. The court adjourned the matter to the 1st of July, despite the earlier statements and warnings of the court due to the persistent absence of the defence counsel and the appellant in court. The facts as narrated above did not fall foul with the provisions of Order 9 Rule 3 of the Area Court Rules as argued by the appellant’s counsel. In my view, an adjournment would amount to a breach of fair hearing against the respondent, if the learned trial Judge again adjourned the matter for the defence on 1st July, 1996. See Egwu v. Uniport (1995) 8 NWLR (Pt. 414) 419. There is no doubt that it is a basic principle of the law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard and canvass the point he relies on before any adverse decision is taken against him with regard to such rights and obligations. If no such full opportunity is given, it could not be said that the trial was conducted fairly. See Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401. The question of whether any trial court should grant an application for adjournment on the application of either of the parties before the court is a matter within the exclusive discretion of the trial court and the exercise of such discretion should always depend on the circumstances of each case. The court when considering the application must decide on the competing issues of doing justice and of speedily determining issue before it. See Solanke v. Ajibola (1968) 1 All NLR 46, International Insurance Group Ltd. v. Alao (1990) 3 NWLR (Pt. 141) 773. In the instant case, the defence counsel simply failed to appear in court to defend the action after he was granted at his request of nine adjournments for one reason or the other. There is clearly an inexcusable delay amounting to an abuse of the process of the court on the part of the appellant before the trial court. The decision of the lower court to continue with the matter in absence of the defence counsel and the defendant under the circumstances of this case clearly, in my view, did not amount to breach of fair hearing. The appellant was given every opportunity to ventilate his defence and claims but he persistently refused to appear in court to take the opportunity given. The appellant clearly has himself to blame. See Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628. See also Shell Pet Dev. Co. (Nig) Ltd. v. Udi (1996) 6 NWLR (Pt. 455) 483. Applying the above principles, I am bound to resolve the second issue against the appellant. In the result, the appeal is doomed to fail and I accordingly dismiss it. I affirm the decision of the lower court which partially varied the decision of the trial court. The respondent is entitled to costs which I assess at N3,500.00 only.

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Other Citations: (2000)LCN/0816(CA)