Court holds Customary Law cannot be cloaked with the borrowed robes of Common Law

“Clothing customary law with the borrowed robes of common law and statutory law will rob it of its core essence…”, held an upper Customary court in Gwantu, Kaduna State.

Adding that so doing will rob it of its core essence, His worship Emmanuel J. Samaila, Esq. on Tuesday, 30^th April, 2024, further stated that “the peculiarities of customary law cannot be overemphasized.”

In the course of determining the issue of title to land and proof, His worship said: “Two prominent and distinct features of customary law are its flexibility and uncodified nature. While its flexibility depicts its susceptibility to change, its uncodified nature suits the lives of the people who are governed by it.

“Any violation of these features will rob customary law of its uniqueness and erode its peculiarity.

“If the practice of referencing a general position of customary law, which is developed from a dispute involving people from a particular tribe in a particular community in a particular location, is applied in a dispute involving a different set of litigants from a different ethnic group in a different location, this will lead to an unintentional and undesirable crystallization of customary law.

“Clothing customary law with the borrowed robes of common law and statutory law will rob it of its core essence, obliterate its uniqueness and erode its significance as a source of law for a people from a particular ethnic group in a particular community at a particular time.”

Below is the full text of the Judgment.

IN THE UPPER CUSTOMARY COURT OF KADUNA STATE

IN THE KAFANCHAN JUDICIAL DIVISION

HOLDEN AT GWANTU

THIS TUESDAY, 30^TH APRIL, 2024

UCCG/CV/21/2023

BEFORE:

HIS WORSHIP EMMANUEL J. SAMAILA, ESQ. – JUDGE

1. YAKUBU S. GIMBA – MEMBER

BETWEEN

OGAH JATAU – PLAINTIFF

AND

1. TANKO WAKILI – DEFENDANTS
2. JOSHUA AMOS

JUDGMENT

[1] The plaintiff’s claim against the defendants is for the declaration of title to a farmland situate at Ungwan Doka, Sanga which he inherited from his father. The defendants counterclaimed title to the same land. The plaintiff testified as PW1 and called Julius Danladi as PW2. He tendered three documents which were admitted in evidence as Exhibits 1A & B and 2. In their defence and proof of their counterclaim, the 1^st defendant was their lone witness as DW1. After the close of the parties’ case, the disputed land was visited and the parties’ counsel, Mamman Audu, Esq. and I.B. Yakubu, Esq., addressed the Court.

[2] The gravamen of the plaintiff’s case is that the disputed land is his inheritance from his father, Jatau Abeku, who acquired it through sale from Danladi Wakili, 1^st defendant’s elder brother and 2^nd defendant’s father. Conversely, the defendants virtually rested their defence on the plaintiff’s case alleging that there was no valid sale of the disputed land to the plaintiff.

[3] In their final addresses, only the defence counsel framed issues for determination as follows:

1. Whether the plaintiff has proved his case as provided under Section 131(2) of the Evidence Act and under Section 132 also.
2. Whether there was a valid sale.

[4] In our quest to justly resolve the dispute between the parties, we distilled a lone question for determination: Has the plaintiff satisfactorily established his ownership of the disputed land to warrant a declaration of its title in his favour?

[5] In PW1’s testimony, he told the Court that the root of his title to the disputed land is a sale transaction in 2003 between his father, Jatau Abeku, and Danladi Wakili, 1^st defendant’s elder brother and 2^nd defendant’s father. He added that Danladi Wakili cautioned his brother, the 1^st defendant, when he trespassed into the disputed land to harvest locust beans. He also averred that the Ward Head’s verdict when the 2^nd defendant complaint against him (plaintiff) is that the land has been sold. Under cross-examination, the witness denied that the land was a pledge as it was sold.

[6] The testimony of PW2 is materially corroborative of the evidence of PW1 on the plaintiff’s root of title and acts of ownership, particularly the exclusive enjoyment of the locust beans tree and the seller’s caution of the 1^st defendant. Under cross-examination, the witness admitted that the signature of the buyer is not on the document of sale, Exhibits 1A & B and 2. The witness also admitted to have earlier given his age as 44, not 42.

[7] In their defence to the plaintiff’s claim, only the 1^st defendant testified as DW1. In a brief evidence, the witness stated that he has no issue with the plaintiff. The defence counsel’s perception of DW1’s testimony as meaning the parties never had a transaction between them is a non-issue as the plaintiff never claimed to have had any transaction with the defendants.

[8] As aptly stated by the counsel to the plaintiff in his final address, it is trite law that there are five ways of proving title to land in Nigeria. In Opoto & Ors v. Anaun & Ors (2016) 16 NWLR (Pt. 1539) 437 at 473-474, paras. H-G, the five means of proof are as follows:

1. By traditional evidence.
2. By production of documents of title which are duly authenticated.
3. By acts of selling, leasing, renting out all or part of the land, or farming on it or in a portion of it.
4. By acts of long possession and enjoyment of the land, and
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

It is also trite that the proof of any of the five ways suffices as proof of the ownership of any land. See Okorieocha & Anor v. Emereni & Ors (2016) LPELR-40043 (CA) Pp. 27-28, Paras. F-E.

[9] While it is apparent that the plaintiff’s case dovetails into proof by the 2^nd, 3^rd and 4^th means of proof, the defendants did not give any material evidence to prove their counterclaim. As we earlier stated, the defence merely rested their case on that of the plaintiff. It is trite law that where a party seeks a declaratory relief, he bears the burden of proving his claim and either succeeds or fails on the strength or weakness of his case, not on the absence or weakness of the defendant’s case. See Ogolo v Ogolo (2006) 5 NWLR (Part 972) 173 at 184, Paras D – E; Akoledowo v. Ojibutu (2012) 16 NWLR (Pt.1325) 1 at 24, Para. C.

[10] A dispassionate consideration of the totality of the parties’ evidence puts up several sub-issues which the Court will resolve in our quest for a just determination of the parties’ dispute. Firstly, the validity or otherwise of the sale transaction. The plaintiff testified that his father acquired the disputed land in a sale transaction in 2003. Danladi Wakili was indisputably presented as the owner of the land before its sale. There was no contestation by the defendants, particularly the 1^st defendant, that the disputed land is an unshared family land which the seller had no authority to sell rather than the fact that the land was the seller’s private property. The disposition of the defendants is best captured in their counsel’s final address where the ground for interrogating the plaintiff’s Exhibits is a reference to a vague and general customary practice for sale of land transactions.

[11] It is noteworthy that the defendants never gave evidence of the requirements of a valid sale transaction under Sanga custom which covers the area the disputed land is located. They have a burden of proving the Sanga custom for sale of land and demonstrating how the transaction between the buyer and the seller of the disputed land failed to meet that requirement. The defendants’ blanket reference to and reliance on a general position of customary law is a fallacious ground upon which to build their case against the validity of the sale transaction between the buyer and the seller, whose lives were governed by Sanga custom, not a general customary law which was most likely established in a case between people from a different ethnic group bound by a different custom in a different locality at a distant time.

[12] The peculiarities of customary law cannot be overemphasized. Two prominent and distinct features of customary law are its flexibility and uncodified nature. While its flexibility depicts its susceptibility to change, its uncodified nature suits the lives of the people who are governed by it. Any violation of these features will rob customary law of its uniqueness and erode its peculiarity. If the practice of referencing a general position of customary law, which is developed from a dispute involving people from a particular tribe in a particular community in a particular location, is applied in a dispute involving a different set of litigants from a different ethnic group in a different location, this will lead to an unintentional and undesirable crystallization of customary law. Clothing customary law with the borrowed robes of common law and statutory law will rob it of its core essence, obliterate its uniqueness and erode its significance as a source of law for a people from a particular ethnic group in a particular community at a particular time.

[13] Customary law is a matter of fact to be proved at all times in all cases as it might have undergone changes from the last time it was judicially acted upon. He who alleges the existence of any particular custom from which a benefit is intended to be derived or as the law governing a particular transaction or state of affair bears the burden of proving it. The subtle crystallization of customary law presented as general elements of customary law may suit academic quests but for practical purposes, the best way of knowing what the current custom is on any particular issue is by visiting the particular community practicing the particular custom. At best, case laws on customary law may reveal the state of the law at the time an agreement was entered into between two parties or an event giving rise to a dispute occurred.

While parties from the same tribe or ethnic group may refer to previous decisions involving the custom in issue, it is open to a litigant in a current suit to challenge the currency of the custom as declared and applied in the previous suit which the court is invited to apply in a present suit. The exceptions to the non-application of previous decisions on an issue in customary law are cases in which a particular custom was declared repugnant or unconstitutional. An example is the case of Ukeje v. Ukeje (2014) LPELR – 22724 (SC); (2014) 11 NWLR (Pt.1418) 384 where the Igbo custom which disentitles a female child from partaking in the sharing of her deceased father’s estate was declared unconstitutional.

[14] Section 24(1)(a) of the Kaduna State Customary Courts Law, 2001 (as amended) provides for the laws to be administered by the Customary Court. The section provides that:

“Subject to the provision of this Law, a Customary Court shall administer:-

(a) The appropriate customary law specified in Section 25 of this Law in so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either by necessary implication with any written law for the time being in force.”

[15] Section 25(1) of the same Law, provides for the appropriate customary law to be applied in adjudication in land matters. It provides thus:

“Subject to the provisions of the Land Use Act and any written law, in land matters the appropriate customary law shall be the customary law of the place where the land is situated.”

[16] In the instant case, the defendants failed to discharge the burden of proving the existence of their referred general customary law which must be in the nature of the principle established in cases like Ukeje v. Ukeje (above) before it can be applied by this Court to the dispute between the parties over the sale of a piece of farmland located at Sanga and governed by Sanga customary law. We so hold.

[17] Secondly, the nature of the plaintiff’s exhibits. Exhibit 1B is the handwritten version of the sale agreement between the buyer and the seller of the disputed land. Exhibit 1A is the typed version of Exhibit 1B. Both are in Hausa language. Exhibit 2 is the English version of the agreement. A common feature in Exhibits 1A & B is the conspicuous absence of the signatures or thumbprints of the buyer and the seller. Rather, it is their witnesses, Mr. Julius Danladi (PW2) and Mr. Tanko Wakili, 1^st defendant, that thumbprinted and signed them respectively.

[18] It is noteworthy that the defendants never contested the genuineness of the Exhibits. Their grouse is that the buyer and the seller never signed the agreement, hence the document, and by implication the sale of the disputed land, is invalid. They never bothered to prove their assertion that the document and the sale are invalid by giving evidence of what constitutes the requirements for a valid sale of land transaction under Sanga custom. Is their grouse sufficient reason to doubt the occurrence of the sale and the genuineness of the Exhibits? Our answer is in the negative. The basis for our belief in the occurrence of the transaction and the genuineness of the documents are independent events which occurred after the agreement was entered into. These include:

[19] 1. The seller’s, Danladi Wakili’s, caution of the 1^st defendant. PW1’s testimony, which is corroborated by the evidence of PW2, is that the seller cautioned the 1^st defendant after the plaintiff reported him to the seller for trespassing into the disputed farm and harvesting locust beans. These pieces of evidence were not contradicted by the defendants. The witnesses were also not discredited by the defendants.

[20] 2. The outcome of the customary arbitration between the 2^nd defendant and the plaintiff. PW1 testified that the 2^nd defendant made a complaint to their Ward Head claiming the ownership of the disputed land. The witness stated that their traditional leader told the 2^nd defendant that the land has been sold. This piece of evidence was also not contradicted by the defendants.

[21] 3. The plaintiff’s act of acts of ownership and long, undisturbed possession of the disputed land. There is no doubt that the sale transaction occurred in 2003, that is a period of over 20 years. During this period, the plaintiff’s family cultivated the land and planted tick trees along the southern boundary of the land. The plaintiff’s evidence also indicated that he has been exclusively enjoying the economic trees in the land, particularly the locust beans tree. In fact, the acts that would have counted as disturbed possession were resolved in the plaintiff’s favour.

[22] 4. The refusal of the defendants to give substantial evidence in proof of their counterclaim. Ordinarily, a party does not have to testify in a case. However, in a case like the instant case where the defendants counterclaimed title to the disputed land, it is strange that they opted not give any relevant and material evidence. The Court opines that the defendants might have been wary of putting themselves up for cross-examination as their evidence will be on oath. It is trite law that where a party seeks a declaratory relief, he bears the burden of proving his claim and either succeeds or fails on the strength or weakness of his case, not on the absence or weakness of the defendant’s case. See Ogolo v Ogolo (above) and Akoledowo v. Ojibutu (above). Considering the foregoing, we find that Exhibits 1A & B and 2 are genuine documents which evidence a valid sale transaction between the buyer and the seller in accordance with Sanga custom for sale of land lying at Sanga in Sanga LGA of Kaduna State. We so hold.

[23] Thirdly, the discrepancy in the age of PW2. When cross-examined, PW2 gave his age as 42. He thereafter admitted that he had earlier given his age as 44. These questions were asked by the defence counsel in his bid to discredit the witness. However, the discrepancy in the witness’ age is of no consequence to his credibility or fatal to the plaintiff’s case. It is a non-issue as it has no bearing whatsoever with the live issues in the matter, which is the ownership of the disputed land.

[24] It is not uncommon during proceedings in the Customary Court, that parties, especially those without legal representation, state a number as their age which is apparently not their real age which many of them do not even know. The given age is more often manifestly lesser than what the Court can guess is their actual age by their physical appearances. Ordinarily, the question “How old are you?” is one of the preliminary questions the Court asks a witness who is unrepresented to enable the persons adjust to the strange arena of adjudication they might be appearing in for the first time. The question is also aimed at putting the witness at ease before testifying. It should be noted that the Court’s procedure is different from the customary arbitration procedure some of the litigants are used to in their traditional leaders’ palaces. Therefore, an obviously wrong number stated by a witness as his age ought to be overlooked and not to be used as a basis for discrediting a witness except in a case where the witness’ age is in issue. It is not in doubt that there is discrepancy in PW2’s age but we find that it is not material enough to affect the evidential value of his testimony. We so hold.

[25] It is a core feature of civil actions that decisions are reached on the preponderance of evidence, not on proof beyond reasonable doubt or proof with mathematical accuracy. See Eagle Transport Co. Ltd v. Anyia & Anor (2017) LPELR-42020 (CA) P.32, Paras. A – C. Therefore, we find that the discrepancy in the plaintiff’s case is immaterial and inconsequential to the credibility of PW2 and the plaintiff’s case. We so hold.

[26] In view of the foregoing, we answer the lone question for determination in favour of the plaintiff. We find that he is the owner of the disputed land and we so hold. His claim succeeds while the counterclaim of the defendants fails and is hereby dismissed. Therefore, judgment is hereby entered in favour of the plaintiff against the defendants as follows:

1. The title to the disputed land is declared in favour of the plaintiff against the defendants. The land is particularly described thus:
2. North: bounds a stream beyond which lies Young Money’s farmland
3. East: bounds a footpath which separates plaintiff’s farm with Ishaku’s farm
4. West: bounds a stream beyond which lies Anche’s farm
5. South: the line of tick trees separates plaintiff’s farm from the 2^nd defendant’s farm
6. An order of perpetual injunction restraining the defendants, their heirs, servants, agents or privies from making any interference with the plaintiff’s land is hereby issued.

[27] Cost in the sum of N50,000 is hereby awarded in favour of the plaintiff against the defendants. Any party that is dissatisfied with this decision may appeal to the Customary Court of Appeal, Kaduna within 30 days from today, 30^th April, 2024.

Signed:

1. Judge 30.04.2024
2. Member

Appearance:

Mamman Audu, Esq. for the plaintiff

I.B. Yakubu, Esq. for the defendants