Yakubu Tella & Anor V. Mr. Enock B. Daniel (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: (Delivering the Leading Judgment)

This matter emanated from the Upper Customary Court, Kafachan sitting in its original jurisdiction. The case was filed by the Respondent, as plaintiff against the first Appellant, as defendant, as a complaint of criminal trespass and mischief committed by the cutting of economic trees on his farmland situate at Abet in Zongon Kataf Local Government Area which constituted an offence under the provisions of sections 342 and 326 of the Penal Code and the Respondent claimed for the sum of N100,000.00 as damages.

After hearing the Respondent state his claim, as plaintiff, and the first Appellant’s response, as defendant, and wherein the first Appellant raised the issue of the ownership of the said farmland, the Upper Customary Court converted the case to a civil claim. The Court said thus:

“This case is therefore turned to civil matter since it is a land dispute and claim for compensation of N100,000. Plaintiff filed this case claiming his inherited land which he inherited from his father and is also claiming an inherited land for the family which situate at Abet of Zongon Kataf LGA which defendant entered thereon on 14th of January 2003 and cleared part and cut some of the economic trees. In the plaintiff’s statement of claim, he is claiming thus:

1. His farmland should be given to him
2. To pay him compensation of N100,000 for wrongful entry or criminal trespass to land.
3. That the defendant or anybody else should be restrained from carrying or doing any job on the land until final determination of the matter.” (See pages 4 to 5 of the records)

The matter was set down for hearing on these claims. The first Appellant applied that the trial Court visit the locus in quo and the request was granted. The Upper Customary Court visited the locus in quo on the 6th of February, 2003 (the report of the visit is contained on pages 5 to 10 of the records). When the matter came up before the Upper Area Court on the 13th of March, 2003, the first Appellant applied that he be allowed to defend the matter in a representative capacity, for himself and on behalf of the Basa family, and the application was granted. The second Appellant thereafter applied to be joined as the second defendant in the matter and his application was also granted.

The matter proceeded to trial and during which the parties called witnesses in proof of their respective cases. At the conclusion of trial and after hearing closing arguments, the Upper Customary Court in a one paged judgment found for the Appellants. The Respondent was dissatisfied with the judgment and he appealed to the Customary Court of Appeal sitting in Kaduna on five grounds; namely that:

i. The decision was against the weight of evidence.

ii. The trial Court erred in law to have declared title of the said land containing six houses of the Respondent’s family to the Appellants when same is the subject of an irrevocable customary grant.

iii. The trial Court erred in law when it failed to make findings on the acceptable native law and custom governing the subject matter and the parties and thereby occasioned a miscarriage of justice by its failure to award damages.

iv. The trial Court erred in law when it resolved to partition the land containing the Respondent’s family houses and covered all by investments between both parties when there was no counterclaim filed before it.

v. The trial Court erred in law to have heard and/or conducted substantially its proceedings in Hausa language.

The Customary Court of Appeal heard arguments of the Counsel to the parties on the appeal and, in a considered judgment delivered on the 9th of July, 2004, it allowed the appeal of the Respondent on the first, second and third grounds of appeal while it dismissed the appeal on the fourth and fifth grounds of appeal. The Customary Court of Appeal set aside the judgment of the Upper Customary Court and it entered judgment for the Respondent as the customary owner of the land in dispute in the matter and remitted the case to the Upper Customary Court for a determination of the amount of compensation that was due to the Respondent from the Appellants.

The Appellants were not happy with the judgment and they caused an appeal to be filed against it to this Court by a notice of appeal dated the 9th of August, 2004 and containing nine grounds of appeal.

In compliance with the Rules of this Court, the Appellants filed a brief of arguments dated the 23rd of November, 2006 and it consisted of nine pages. The Appellants’ brief of arguments was deemed proper on the 14th of March, 2007. The Respondent’s brief of arguments consisting of ten pages is dated the 24th of January, 2011, and it was deemed properly filed on the 25th of January, 2011. At the hearing of the appeal on the 11th of April, 2013, Counsel to the Appellants and to the Respondent relied on and adopted their respective briefs of arguments.