Tidi Yazza & Ors V. James Kwaga & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This Appeal challenges the decision/judgment of Honourable Justice A. B. Mubi of the High Court of Justice Adamawa State Holden at Mubi Judicial Division wherein this Lordship dismissed the plaintiffs (now Appellants’) suit against the Defendants/Respondents. The Appellants as plaintiffs had in their writ of Summons and Statement of Claim sought for the following reliefs against the Defendants, jointly and severally:-

1. A declaration that the Plaintiffs are entitled to all that piece of land lying and situate at Lughu Ward of Michika Town measuring about 150m x 150m and bounded by Vandi Tihale family on the south, by Ayuba Zirawaga and Ali Kwada family on the West, by the plaintiffs family house on the East and by Tizhe Tari Tia and Tizhe Pembi’s family on the North.
2. An order of perpetual injunction restraining the Defendants either by themselves servants, agents or privies from further trespassing into the Plaintiffs land aforesaid.
3. General damages in the sum of N200,000.00 against the 1st Defendant for trespass.
4. General damages in the sum of N300,000.00 against the 2nd and 3rd Defendants.
5. The cost of this suit”.

Pleadings were exchanged by the parties in the Lower Court and at the hearing of the case, the Plaintiffs/Appellants called four witnesses while the Defendants/Respondents called three as at July 2006. Henceforth, the case subsequently suffered series of adjournments because of the absence of parties and the respective required Counsel until three years later on the 31st March, 2009, when the Court suo motu adjourned same to the 14th of May, 2009, for judgment.

Subsequently, the learned Counsel to the Defendants then brought an Application on the 9th of April, 2009 to arrest the judgment which motion was dismissed for being alien to our jurisprudence. The learned trial judge then proceeded to deliver the judgment on the 16th day of September, 2009 dismissing the case of the Plaintiffs.

Piqued by the judgment, the Plaintiffs/Appellants (who shall henceforth be referred to as Appellants) on the 27th day of October, 2009, filed their Notice of Appeal dated 16th of October, 2009 with three Grounds. Upon transmission of the Record of Appeal hereto, the Appellants by a motion dated and filed on the 6th day of November, 2011 were granted leave to file their brief of argument out of time. Owing to the difficulties encountered in serving the Respondents with the Court processes, the Appellants were further granted leave to effect substituted service on the Respondents by pasting all the processes in the Appeal at the last known Address/abode of the 1st and 2nd Defendants/Respondents at Villegwa Village Area, Michika Local Government Area of Adamawa State.

Indeed up to the 9th day of May, 2013 when this Appeal was heard the Respondents have not filed their Respondents’ Brief culminating in our being obliged to accede to the application of learned Counsel to the Appellants to hear the Appeal solely on the Appellants’ Brief in line with Order 18 Rule 10(1) of the Court of Appeal Rules, 2011. It would be recalled that the name of the 3rd Respondent had been struck out on 28th day of September, 2012 following his demise.

Before proceeding to delve into the arguments of the respective learned Counsel on the Appeal, it is only appropriate at this juncture to have a brief a resume’ of the facts of the case as can be gleaned from the pleadings of the parties. The case of the Appellants who were fathers and his two sons in that they resided in their Tidi Yazza family compound Lughu ward of Michika Town. The three Respondents who are said to be of Kwaga clan of the Higgi people also resided in their compound around Michika Town.

According to the Appellants, their ancestors migrated from Ghye and settled at the present place called Lughu Ward of Michika Town and that the sons of Higgi who migrated from Ghye were three namely: – KWABE, KWAGA and KWACHE and they now constitute the main Higgi Clan in Michika Town. As regards their immigration routes and pattern, KWACHE migrated North-wards and settled in Sangere/Central Area of Michika Town, KWABE towards the south and settled in the present lughu Area of Michika Town while KWAGA migrated toward the West and settled in Villegwa and sparsely scattered thereabout.

The Appellants’ present settlement is said to be made up a large compound which has been develop over time as they inherited the land from their great grandfather YAZZA TSALA who founded and cultivated the area over 100 years ago as a settlement. Appellants gave their boundary neighbours as VANDI TIHALE FAMILY on the South, AYUBA ZIRAWAGA AND ALI KWADA FAMILY on the West, the Appellants houses and settlement on the East and TIZHE TARI TIA and TIZHE PEMBI’S FAMILY on the North adding that the land the subject matter of the dispute is 150m x 150m in dimension by approximation and forms part of the land described by the boundaries afore-stated.

Upon YAZZA TSALA founding and cultivating the land so described above, he was approached by his friend one TERI TUMBA for a plot of land to allow him settle temporarily within the area in despite to enable him undertake his hunting and farming ventures outside the land. As bosom friends, the Appellants’ grandfather obliged Teri Tumba and gave him a small piece of land upon which to build some huts. Before the Appellants’ grandfather died in 1932, he entered into an oath with his bossom friend (Teri Tumba) not to part with each other and for the Yazza Tsala family to always accommodate his (Teri Tumba’s) family members whenever the need arose. This development was communicated to the Appellants with specific instructions to adhere to the terms of the covenant.

Teri Tumba predeceased Yazza Tsala leaving behind an only son as Tumba’s successor (Vandi Tumba) who subsequently left Yazza Tsala family area to join his (Vandi’s people of KWAGA CLAN and settled in Villegwa and it was not until 1997 that the Appellants’ family became aware of that Vandi Tumba also died and left an only son (Sini Vandi). In keeping with the grand father’s covenant with Sini Vandi’s grand father, the Appellants invited Sini Vandi and intimated him of the oath between their grand fathers and sought from Sini Vandi whether he would want to settle with the Appellants an offer which Sini Vandi rejected on the ground that he was not aware of such an oath or bound by it.

In order to free themselves, from there grandfathers oath, the Appellants offered to pay Sini Vandi compensation for the land which he accepted and the Appellants became absolute owners of every piece of land within the Yazza Tsala family land. The Appellants pleaded the document evidencing the transaction between them and Sini Vandi and averred further that they have been in absolute control of every piece of land within the Yazza Tsala family land since 100 years before litigation and had developed same without any interference or any adhere claim until sometime in the year 2000 when the 1st Respondent trespassed into a portion of the land measuring 150m x 150m within their Appellants’ aforesaid family land and started cultivating same. When the 1st Respondent was confronted by the 1st Appellant to desist from further trespass, the 1st Respondent refused where upon the 2nd Appellant sued the 1st Respondent at the Upper Area Court, Michika in suit No.MCJ/CVF1/23/2000 over the 1st Respondent’s act of trespass.

At the Michika Area Court, the 1st Respondent admitted trespassing on the land but asserted that it was upon the permission of the 2nd and 3rd Respondents who claimed ownership of the land and when called, the 2nd and 3rd Respondents admitted the 1st Respondent’s assertion and further claimed that the piece of land in dispute belongs to them through inheritance. Hence the claim of the Appellants as contained in their Writ of Summons and Statement of Claim.

The Respondents case on the other hand as can be deduced from their Joint Statement of Defence after admitting paragraphs 1, 2, 3, and denying paragraphs 4 – 23, of the Appellants Statement of Claim; is that the 1st, 2nd and 3rd Appellants’ ancestors did not migrate from Ghye but from Yazza Village in Borno State and settled under the Defendants’ ancestors and were accommodated into the Respondents’ family. They averred that not all the three Clans of Kwabe, Kwaga and Kwache migrated from Ghye as Kwache and Kwaga first settled in Lughu thereby forming the present Lughu ward of Michika while the Kwabe clan from Yazza village of Borno State came and settled at Madzi thereby forming the present Madzi ward of Michika.