3PLR – JATAU V. DUNG

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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JATAU

V.

DUNG

COURT OF APPEAL

CA/J/82/88

TUESDAY, 28TH JULY, 1992.

(1994)

3PLR/1994/57  (CA)

 

 

OTHER CITATIONS

[1993] 3 NWLR (PT. 283) 558

 

BEFORE THEIR LORDSHIPS:

SAM SALITH AIKAWA, J.C.A. (Presided)

ALOYSIUS IYORGYER KATSINA-ALU, J.C.A.

OBINNAYA ANUNOBI OKEZIE, J.C.A. (Read the Leading Judgment)

 

REPRESENTATION

Onyeka A Onyeka ESQ – for the Appellant

M.A. Tende – for the Respondent

 

MAIN ISSUES

Customary law – Proof has to be proved by calling witnesses who have a personal knowledge of the particular customary law and it is only when a custom becomes notorious as a result of frequent proof in courts that judicial notice of such custom without further proof is taken.

PRACTICE AND PROCEDURE – EVIDENCE- Judicial notice of customary law

MAIN JUDGEMENT

Delivering the Leading Judgement Okezie JCA

The appellant in this court was the plaintiff in the Grade One Court Bukuru, Plateau Sate of Nigeria. His claim was for the declaration of title to a piece or parcel of land, which he claimed was a loan to the defendant’s father. The defendant is the respondent in this court. The claim before the trial court by the appellant is stated as follows:-

“I Dung Jatau Gyel do hereby sued Pam Dung because he seized my farm land his father Jatau come and beg my father and built a house, later he want to buy the next of the farm. My father refused later one of the company came and made some work even it has been paid compensation to the owners of the farm, his father sued to my father to come, they wrote my name his father said if he want make quarrel until his death, because the farm land is ours, the company has paid to me since last 20 years ago, then they vacate from the said house, his father was dead, I want use the farmland he used. Therefore I have filled a case against him”.

At the trial the appellant called one witness who testified on his behalf. Both Damu (PW1) gave evidence in support of the appellant’s claim. He said that he shared a common boundary with the appellant and he described the boundary features, He did not know whether the respondent had a farm or not. There was evidence that a company excavated the land and paid compensation to the appellant for 20 years. He was told by his father that the farm land belonged to the appellant. That in substance was the evidence tendered by the appellant before the respondent testified and called three witnesses.

The respondent gave evidence that the land devolved on him from his father. He was farming on the land for 50 years and no one disturbed him until last year, when the appellant started laying claim to the ownership of the land in dispute. The appellant wanted to farm on it, but he refused. Hence this action. He called three witnesses in support of his case that the land belonged to him. Jatau Bai (D W 1) did not know whether the land in dispute belonged to the respondent as it had taken many years. Danboyi Pwol (D W 2) testified that the respondent told him he had a farm but he did not know the actual owner. Cham Davor (D W 3) confirmed he did not know how both parties came into possession of the land in dispute. That was the case for the respondent.

The evidence of the appellant and his witness was not challenged by the respondent. The respondent had no question. The respondent did not categorically if at all deny the payment of compensation to the appellant except that the respondent asserted that his father was not alive at the time.

After the court had heard the evidence of the parties and the witnesses on oath and then it proceeded to visit the locus in quo. Questions wee put to both the appellant and the respondent and one such question produced a desired effect on the final decision reached was this:

“Ct …….As we have discovered the farm was in the side of the farm, and all the witness have not corroborated, therefore we have to apply an oath to plaintiff to add with the witness or rather if he refused the defendant should take an oath to add with his witnesses and take the possession of the farm”.

The plaintiff/appellant agreed to take the oath which was administered to him. The court in its judgment reviewed the whole evidence and finally concluded thus:

“This is a civil case the claim which is farm land situated at Gyel Miango filed by Dung Jatau against Dung Pam, according to the plaintiff Dung Jatau said the farm land belonged to his father some years ago was lent to the father of defendant he was farming it, according to him there’s a time when the tin miners came to the place and used the land he is the person who was paid the compensation, by then the defendant was there, if the place belonged to him he could have talked.

After we have all explanations, we have asked the plaintiff to produce a witness, he produced one witness who testified that he knows the farm land in question belong to the plaintiff because he has a farm near him at the western part of the farm.

From there the defendant explained himself and later his 3 defendant farming but they are not sure the ownership of the farm.

For this regard the evidence of the plaintiff has more weight, the evidence of the defendant because all the witnesses of the defendant none saw him farm, they do not know how he managed to have a farm. The witness of the plaintiff confirm that the farm belong to the plaintiff. Therefore we have applied an oath to see that or what he said is the truth. dung Jatau has taken an oath with Holy Bible because is a Christian.

And confirm the farm belongs to him case for the plaintiff”.

Aggrieved by the decision of the trial court, the respondent appealed to the Customary Court of Appeal Jos. That court reversed the judgment of the trial court and held thus:

“It is our candid view that had the trial area court Bukuru adverted its mind to the real point in issue vis a vis borrowing of the disputed father, it would have found for the appellant. We do hold that based on the evidence adduced in the court below, the plaintiff/respondent could not have proved the alleged borrowing hence his action ought to have been dismissed”.

Again dissatisfied by the decision of the Customary Court of Appeal, the respondent who lost appealed to this court, the following grounds of appeal were canvassed by the appellant’s counsel:

(1)     The judgment is unreasonable and against the weight of evidence

(2)     The learned appeal Judge erred or misdirected himself in law and/or fact when he held that Section 145 of the Evidence Act applied

PARTICULARS OF ERROR/MISDIRECTION

The learned appeal Judge found

“that the appellant’s father stayed on the land for about a period of 25 years before leaving it for the appellant on death”.

This is disclosed on page 1 of the record when the trial court asked the plaintiff:

“Ct: How long has he stayed in the farm?

Ans:          About 25 years ago”

The Honourable Court did not proceed further to find out that plaintiff further answered the court’s question in the following words.

Ans: He did not vacate until after his father died”

At the time parties went to court, the defendant was no longer in physical possession of the farm in dispute. therefore section 145 of the Evidence Act was inapplicable. This misdirection or error occasioned a miscarriage of justice.

(3)     In the alternative – the learned appeal Judge erred and misdirected himself in law when he stated on the issue of possession whom the burden of proof lay.

PARTICULARS OF ERROR & MISDIRECTION

(a)     The appeal court Judge simply stated the position of the law as follows:-

“Pam Dung the appellant was in possession hence the burden of proof was on Dung Jatau”

This statement of the law is vague in extreme.

(b)     Assuming that the appeal Judge meant that the burden of proof lay upon Dung Jatau (the then respondent) to prove that Pam Dung (the appellant) was in possession then this could be a manifest misdirection of the law – having regard to Section 145 of the Evidence act.

(c)     Assuming that the appeal Judge meant that the burden to prove that Pam Dung (the party alleged to be in possession) is not the owner – then this burden has been adequately proved – by evidence before the court. This misdirection occasioned a miscarriage of justice.

(4)     The learned appeal Judge erred and misdirected himself in law when they held that the respondent in his (Dung Jatau) had not proved the facts asserted by him according to Section 134(1) of the Evidence Act.

PARTICULARS

(a)     The learned appeal Judge approached the onus of proof under section 134(1) (aforesaid) upon a narrowing alone. And on the issue of borrowing the learned Judge did not consider all e relevant evidence given by respondent and his only witness.

(b)     Furthermore and/or in the alternative the appeal court Judge did not address his mind to the standard of proof required in a civil matter (i.e notwithstanding the onus of proof) which is on the preponderance of probability. He did not (having established the onus of proof) then proceed to CONSIDER and WEIGH the evidence of both parties on the imaginary scale before giving his judgment. This failure, misdirection and error occasioned a miscarriage of Justice.

  1. The learned appeal Judge erred and misdirected himself in law and fact when he accepted the question of oath taking by the plaintiff in the lower court as a basis for his judgment.

PARTICULARS OF ERROR/MISDIRECTION

(a)     The issue of oath being taken by any party, being a matter of law, was not raised as a ground of appeal. No application was made nor given to raise and argue it as a ground of appeal at any stage. The then respondent or his counsel wee therefore not given the opportunity of knowing in advance about it. This occasioned miscarriage of justice.

(b)     In the alternative the appeal court should not have attached such onerous weight upon the oath as the Lower Court had properly evaluated the evidence of the parties and found out which was more preponderant before considering the issue of oath, AND besides, it would have still come to the same decision (without the oath).

(6)     The learned appeal court Judge erred in law and in fact when he gave judgment in favour of the (then) appellant or defendant (in lower court).

PARTICULARS

(a)     The appeal Judge ignored and did not attach the proper weight to the evidence of the plaintiff in the lower court and his only witness that he was paid compensation by a Tin Company. This evidence was confirmed by the defendant Pam Dung (during cross examination) and one of his witnesses Damboyi Dwol.

(b)     The appeal court failed to consider the conspicuous contradictions and uselessness of the evidence of the (then) appellant as were given at the lower court.

  1. The learned appeal court Judge attacked the judgment of the lower court without considering it (or properly considering it) with the entire evidence. There was also no clear proof that the hearing of the lower court was manifestly wrong so as to disturb it.

In the appellant’s brief filed the issues for determination in this appeal were state d to be the following:

(i)      Whether the learned Judge of the lower court made a correct appraisal of the evidence before it in coming to the finding that defendant” (i.e. respondent) was in (sole) possession of the land in dispute.

(ii)     Whether Section 145 of Evidence Act is applicable if respondent was not in sole possession (but in joint possession of the land with appellant).

(iii)    Whether the learned Judge made a correct approach to and evaluation of the evidence led by the parties by finding that proof of payment of compensation was most vital and that it was not proved.

(iv)    Whether the learned Judge was correct in allowing the issue of oath taking to be argued and prominence attached thereon when the issue was not raised as any ground of appeal.

(v)     Whether on the whole the evidence before the court wee properly evaluated.

In the Respondents brief only one issue was filed for determination:

  1. Whether the appellant established his claim under native law and Custom before the trial Court as to entitle him to the judgment set aside by the Customary Court of Appeal.

Taking into account the issue properly formulated and the argument of counsel for the respondent, I believe the one issue will suffice for the determination of the appeal.

The main complaints of the appellant’s counsel are that whereas the respondent by his late father was in possession of part of the land in dispute for 25 years, he later abandoned the same and vacated the house built thereon after the death of the respondent’s father, He contended that the appellant had prior possession of the disputed land before part of it was lent to the respondent’s father. The appellant had shown sufficient and numerous acts of ownership by receipt of compensation and lending. See Mogaji v Cadbury Nig Ltd; (1985) 2 NWLR (pt 7) 393. He further contended that the evidence of borrowing of the land by the respondent’s father was proved on the balance of probability. He urged the court to allow the appeal.

The learned counsel for the respondent in reply submitted that the appellant was claiming from the respondent a piece of land which the appellant claimed was given to the respondent’s father as gift. He contended whether the appellant was able to establish this before the trial court as to entitle him to judgment. He further submitted that the appellant must prove the existence of the fact which be asserts. Learned counsel adopted the reasoning in the judgment of the Customary Court of Appeal. He argued that gift under native law and custom could be reversible of permanent as it was normally done in the presence of witnesses. He finally submitted that the oath administered on the appellant cannot be sufficient proof of his claim as oath taking is not a requirement of adjudication under the Area Court Civil Procedure Rules 1972. He urged this court to affirm the judgment of the Customary Court of Appeal and dismiss the appeal.

I must say straight away that the claim before the trial court was based on “Loan” and not “Gift” of the land in dispute as erroneously argued by counsel for the respondent in his brief of argument. After reviewing the entire evidence of the parties and their witnesses, the trial court was quite aware of the weakness of the appellant’s case but instead of dismissing the appellant’s claim it decided to swear the respondent on oath and awarded the land to him. Indeed the trail court made the finding that:

“As we have discovered the farm, was in the side of the farm, and all the witnesses have not corroborated, therefore we have to apply an oath to plaintiff to add with his witness or rather if he refused the defendant should take an oath, to add with his witnesses and took the possession of the farm.

Ct – PI       “Dung Jatau I will take the oath”

Ct – PI       “Was taken an oath to add with his witness and the farm is belong to him.

The Customary Court of Appeal, reversing the decision of the trial area court held the view that:

“We find as a fact that the defendant/appellant was in possession of the land in dispute. We also find that the appellant’s father stayed on the land for about a period of 25 years before leaving it for the appellant on death. This is disclosed on page 1 of the record when the trial court asked the plaintiff

Ct – PI When your father lend his father have see the boundary of the farm

Ans:          It has been gave the portion and we are doing the other side

Ct:  How long has he stay into the farm

Ans  About 25 years ago

According to the plaintiff/respondent, within the disputed land was defendant/ appellant’s father’s house with permission of his father. That when the appellant’s father died he, the appellant, abandoned the house. The respondent wanted then to take possession and control of the land but the appellant would not allow him.

Section 145 of the Evidence Law provides:

“145 when the question is whether any person is owner of anything of which he is shown to be in possession the burden of proving that he is not the owner is on the person who affirms that he is not the owner”.

Pam Dung was in possession hence the burden of proof was on Dung Jagau: Oyeyiola v Adeoti (1973) NMLR 103. In this case in hand, Dung Jatau alleges that it was his own father who borrowed the disputed land to the respondent’s father

So it was for him to prove the borrowing:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

S.134 (1) Evidence Law.

To prove the assertion of borrowing, the respondent called witnesses in person of Dot Dumu. As contended by the learned counsel for the appellant, this witness said nothing about the purported loan of the disputed land by the respondent’s father to the appellant’s father. All he said was that the land belonged to the respondent because he shared boundary with him: That there was time some compensation was paid to the respondent on the disputed land. We hold the view that the question of compensation if proved could link the respondent with ownership of the land. But this was denied by the appellant and there was no material evidence to the payment of compensation except mere assertion by the plaintiff/respondent and his witnesses…………………………………………………………………………………………….

We find that the trial area court Bukuru was not satisfied with the overall evidence adduced by the plaintiff and his witness that it had to resort to oath taking in order to find for the plaintiff. We share the same view with learned counsel from both sides that the plaintiff could not succeed on oath but on preponderance of evidence. Consequently, it was wrong for the trial court to have resorted to administration of oath in order to arrive at a just decision…”

It is obvious from the brief that counsel for the appellant did not make any submission on the issue of the loan of the piece of land in dispute to the respondent’s father based on native law and customs. There was no evidence before the trial court to establish the appellant’s claim of the alleged loan, the nature of the transaction or evidence of any customary law that governed the transaction so as to aid the court in determining if the appellant or his father reserved the right to revoke the loan.

As is the case with all customary law it has to be proved by calling witnesses who have personal knowledge of the particular customary law and it is only when a custom becomes notorious as a result of request proof in courts that judicial notice of such custom without further proof is taken: Larinde v Afiko & anor 6 WACA p 108 at P 110 Chiga v Umaru (1986) 3 NWLR (pt 29) 460 p 466.

It is the contention of learned counsel for the appellant that the trial court was in error to have allowed the issue of oath to be raised and argued without leave of the court. The issue of oath was raised for the first time in the trial court by the court itself. The appellant was asked to take the oath. He agreed and it was administered to him. The Customary Court to Appeal rightly observed that the court resorted to oath taking in order to find for the respondent. It is well established, that principle of law that he who asserts must prove and this can be done by calling witness. The contending parties must establish their respective cases by adducing credible evidence at the trial to enable the court to decide the case one way or the order. The oath administered to the appellant cannot be sufficient proof of his claim as oath taking is not a requirement of adjudication: See Chiga v Umaru

(Supra)

Under Order XIV Rules 6 to 10 of the Area Courts (Civil Procedure) Rules 1972.

The Rules provide:

  1. When the defendant does not admit liability the plaintiff shall open his case and produce his evidence.
  2. At the end of the evidence for the plaintiff the court shall consider whether any case has been made out for the defendant to answer, and if no case has been made out judgment shall be entered for the defendant.
  3. (1) If there is a case for the defendant to answer the court shall call on him to make his defence.

(2)  A defendant shall be entitled:

(a)   to give evidence;

(b)   to call witnesses; and

(c)   to address the court at the conclusion of the evidence for the defence.

  1. If anything contained in the proceeding rules of this order shall conflict with the native law and custom applicable to the case under consideration the said native law and custom shall prevail.
  2. When the cases for both sides have been closed the court shall consider the whole matter and give its decision which shall be put in the form of an order in accordance with Order 14″

Certainly, these rules made no provision for administering oaths in exchange to the evaluation of evidence of the parties by the court before reaching a conclusion in the matter.

In the instant case the trial area court gave judgment in favour of the appellant because he took the oath after the trial Judge asked him to do so. This is a second reason why the judgment of the trial court cannot stand. The appeal is dismissed and the judgment of the trial court is set aside. The judgment of the Customary Court of Appeal affirmed. The appellant’s claim against the respondent do stand dismissed. The respondent is awarded costs in this court assessed at N400.00 and in the court below at N300.00

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