Requirements of the Law for Traditional Evidence to be Satisfactorily Proved

CASE TITLE:  FADA & ORS v. ASKA & ORS (2024) LPELR-62737(CA)

JUDGMENT DATE: 6TH AUGUST, 2024

PRACTICE AREA: LAND LAW

LEAD JUDGMENT: JAMES GAMBO ABUNDAGA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Land Law.

FACTS:

This is an appeal against the judgment of High Court of Kaduna State sitting at Saminaka, delivered on 14/5/2018 by Hon. Justice N.U. Sadiq.

Both the appellants/defendants and respondents laid claim to a parcel of land located at Amburga Village in Damau town of Kabau Local Government of Kaduna State. The respondents claim to be entitled to the land through inheritance from their great-grandfather and that they had exercised numerous acts of ownership on the land. The appellants, on the other hand, claimed to be entitled to the same parcel of land through inheritance. In addition, they claimed that respondents brought one Y’au Falgore and/or one other person who laid claim to the ownership of the land against the appellants. The respondents and the said Yau Falgore took the matter for adjudication before the district head of Dama’u. Before the district head, the claimants (the respondents) and Yau Falgore declared that they had no legal or equitable interest in the said land and thus retracted their claim to the ownership of the land. Prepremised on the foregoing, the district head advised the appellants to distribute the land according to Islamic law and it was accordingly distributed between the heirs of Mallaim Zakari, Mallam Suleiman and Mallam Salisu. It was their case that sometime in 2013, the 1st plaintiff (1st respondent) returned to the district head of Damau and claimed ownership of the same land by virtue of inheritance. It was also pleaded by the appellants that after the distribution, a case was filed at Upper Sharia Court 1 (USC1) GRA Zaria. Case No. 254/2013, book 6, pages 144, was thus pleaded, upon which a writ of possession was accordingly issued.

​It was further pleaded that the 3rd plaintiff sued the 2nd and 3rd defendants for trespass and mischief on the said land. The case, it was alleged, was struck out for want of jurisdiction. Not satisfied with the striking out of their case of trespass and mischief, the plaintiffs filed an appeal at Sharia Court of Appeal Kaduna, whose appeal was pending when the plaintiffs instituted the instant suit.

The appellants also claimed that the description of the land claimed by the plaintiffs/respondents is not the same with the land the plaintiffs are disputing in this suit. Pleadings were exchanged, and the matter proceeded to trial after the pretrial conference. The plaintiffs and defendants both called witnesses and tendered documents; thereafter, judgment was entered in part for the plaintiffs/respondents.

Dissatisfied with the judgment of the trial Court, the appellant appealed against the same.

ISSUES FOR DETERMINATION:

The Court adopted the issues formulated by the appellant in the determination of the appeal, thus:

(1) “Whether the trial court was right to have exercised jurisdiction on the case, particularly in view of the fact that the land in issue has been shared by a competent Upper Sharia Court No. 1 Zaria, which the respondents had appealed against to the Sharia Court of Appeal of Kaduna State via Exhibits E1 & E2, whose appeal is still pending at the Sharia Court of Appeal when this case was filed and heard.

(2) Whether the Respondents were entitled to judgment of the lower Court in view of the fact that there was no evidence to support their claim before the lower Court, such that their case ought to have been dismissed.”

DECISION/HELD:

In the final analysis, the appeal succeeded and the judgment of the trial Court was set aside.

RATIOS:

• ACTION- COMMENCEMENT OF ACTION- Whether the existence of a criminal action will be a bar to a subsequent institution of a civil suit against the same party
• ACTION- PLEADINGS: Effect of uncontroverted assertion in pleadings
• EVIDENCE- ESTOPPEL PER REM JUDICATAM/RES JUDICATA- Conditions for a successful plea of estoppel per rem judicatam
• EVIDENCE- PROOF OF TITLE TO LAND- Ways by which ownership/title to land may be proved; whether a plaintiff/claimant needs to prove all five ways
• EVIDENCE- TRADITIONAL EVIDENCE/HISTORY- Requirements of the law for traditional evidence to be satisfactorily proved
• EVIDENCE- TRADITIONAL EVIDENCE/HISTORY- How the Court will treat conflicting evidence of traditional history and whether court can rely on acts of ownership and possession upon failure of proof of traditional evidence as root of title
• EVIDENCE- TRADITIONAL EVIDENCE/HISTORY- The rule in Kojo II v. Bonsie and instances where the rule will not be applicable
• EVIDENCE- TRADITIONAL EVIDENCE/HISTORY- Effect of failure to prove traditional evidence/history
• EVIDENCE- TRADITIONAL EVIDENCE/HISTORY- Duty of a party relying on traditional history
• EVIDENCE- TRADITIONAL EVIDENCE/HISTORY- Whether acts of long possession can be considered where proof of title by traditional evidence fails
• LAND LAW- TITLE TO LAND- Duty of a plaintiff claiming title to land

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