➥ CASE SUMMARY OF:
Damulak Dashi & Ors. V. Stephen Satlong & Anor. (2009) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.303/2002
➥ JUDGEMENT DELIVERED ON:
Friday, The 30th Day Of January, 2009
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ WHAT IS CUSTOMARY TENANCY?
A customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behaviour, he holds in perpetuity. Unless it is otherwise excluded, the main feature of a customary tenancy is the payment of tributes by the customary tenant to the overlord. And the status of his exclusive possession is such that it is enforceable against the world at large including even the customary landlord or those claiming through him. — F. Tabai, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
F. Tabai, J.S.C.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
This appeal is against the judgment of the Jos Judicial Division of the Court of Appeal on the 23rd of May 2002. The original action itself was commenced at the Upper Area Court, Pankshin in Plateau State sometime in 1994. The Plaintiffs therein are the Appellants in this Court. And the Defendants therein are the Respondents before us.
The Plaintiffs’ claim is for a declaration of title to a piece of farm land situated at Minting in Chip District of Pankshin Local Government Council. The Defendant is a customary tenant to the Plaintiff and is now denying the Plaintiffs’ title. Hence he does no longer comply with the traditional requirements of customary tenancy. The Plaintiffs therefore wish to retake possession and seeks a declaration of title in their favour.
The Defendants denied the claim and their denial is recorded at page 8 of the record as follows: “I deny the claim; this is because the piece of land is mine. This is so because my father cleared the land 26 years ago. The land was formerly a bush which served as hunting ground for the District Head of Chip. In 1986, I sued one Irimiya Topsin who is a brother of the Plaintiff in respect of this farmland in this Court. The judgment was in my favour. Since then I have been farming the land until 1993 when Irimiya handed out the land to the Plaintiff.”
Two sets of documents were tendered by the Defendants and were admitted as Exhibits “A” and “B”. By its judgment on the 13/8/96 the plea of Res Judicata was held to be successful and the claim was struck out. The Plaintiff has been appealing, and now to this Court.
➥ ISSUE(S) & RESOLUTION
I. Whether by reason of the proceedings and judgment in the previous suit Exhibit “A” the Appellants are estopped from instituting this action?
RULING: IN RESPONDENT’S FAVOUR.
A. “In the first place it is a common ground that the land which is the subject matter of the dispute in Exhibit “A” is one and the same as the one in this suit. Although learned counsel for the Appellants argued, rather feebly, that the land in this suit is by far larger than that in Exhibit “A” there is no evidence in support of that assertion. I hold and affirm the decision in the three courts below that the land involved in Exhibit “A” is the same as that in this suit. The Customary Court of Appeal also said so at page 66 of the record. This thus meets one of the necessary constituents of estoppel per judicatam.”
B. “I also endorse the reasoning and conclusion of the trial Upper Area Court. It is true that the issue of the radical title over the land was not settled in Exhibit “A”. Be that as it may, there are nevertheless legally binding pronouncements in it. The Respondents were held to be in possession for a long time and to be entitled to continue in such possession only determinable by and at the instance of the real owners of the land. And that although the Respondents acquired their possessory rights to the land through the late District Head of Chip and the late village Head of Minting, they (or their successors in title as District Head or Village Head) have no title to the land; that neither they nor their successors in title including the Defendant therein (who is PW6 herein) nor the L.B.R.B.D.A. can acquire the land without the consent and payment of compensation to the Respondents. And that the acquisition of the land either by the Defendant (PW6 herein) nor the L.B.R.B.D.A, without the consent and payment of compensation to the Respondents in possession was illegal. I have no doubt in my mind therefore that Exhibit “A” contains pronouncements on issues upon which a plea of estoppel per rem judicatam can be founded. Same questions as to the parties’ rights over the land on Exhibit “A” are also raised in this suit.”
C. “The 1st and 2nd Plaintiffs each testified as PW1 and PW2 respectively. Each of them testified to the effect that the he is related to the Plaintiffs and to Irimiya Topsin. Although the 3rd and 4th Plaintiffs denied any relationship with the other Plaintiffs and Irimiya Tepsin, the trial Upper Area Court did not believe their denial. The PW7 said all the Plaintiffs and lrimiya Tepsin are relations of the same Ruling House having a common grandfather. The trial court believed this evidence and found as a fact that the Respondents and Irimiya Topsin are privies bound by the decision in Exhibit “A”. This finding was again endorsed by the Customary Court of Appeal and the Court below.”
II. Whether the Appellants established that the Respondents are their customary tenants?
RULING: IN RESPONDENT’S FAVOUR.
A. “the evidence of the Plaintiffs/Appellants was reasonably consistent. One aspect of their evidence is that the Defendants/Respondents paid their tributes to the Plaintiffs through the Ward Head. This was categorically denied by the Respondents who maintained that under the customary land tenure of that area, a customary tenant pays his tributes direct to the customary landlord and that the tributes paid to the District Head through the Ward Head were so paid because they were custodians of all land within their area of jurisdiction. This evidence sounds to me more credible. On this issue of the payment of tributes the Court below examined the evidence carefully and at page 118 had this to say:- ‘As for the tributes alleged to be given to the PW6 one may wonder why they were not being given to the Appellants directly since they are the purported owners. Surely the relationship between a customary landlord and tenant goes far beyond that of having a middle man to collect and deliver tributes to the landlord. I am saying this, bearing in mind the evidence of the PW6 himself that the owner of the land are the Appellants, not him. Funny enough none of the Appellants testified that tributes were given to them through PW6; rather their evidence was that the Defendant and his father used to give them tributes. In fact, their evidence on tributes is contrary to the evidence of the PW6.’” I do not see any feasible reason to disagree with the conclusion reached by the court below. It is not an incident of customary tenancy that tributes can be paid by customary tenant to the landlord through a third party. It is on record that before this dispute arose the Respondents had been on the land for many years. The DW1 testified on 22/11/95 at which time he was about 53 years old. And he said he was born on the land in dispute. None of the witnesses apart from the 2nd Defendant/Respondent was an eye witness to the transaction. I have no reason to disturb the finding of the Court below that the tributes paid by the Respondents to Ward Head of Minting and the District Head of Chip were so paid in recognition of the fact that they are custodians of the land.
III. Whether the Appellants proved their title to the land in dispute as per the evidence before the court?
RULING: IN RESPONDENT’S FAVOUR.
A. “Having regard to the undisputed facts about the Respondents being in possession of the land in dispute and the assertion by the Appellants that the Respondents’ said possession is by reason a customary tenancy they (Appellants) can only establish their title to the land by proof of the customary tenancy. In view of the finding by the lower court that the alleged customary tenancy was not proved and which finding I have endorsed the Appellants have, a fortiori failed to prove their title to the land in dispute.”
“In conclusion I do not fancy any strong reason to disturb the concurrent findings and conclusions of the three courts below. The result is that this appeal fails and is accordingly dismissed. I assess the costs of this appeal at N50,000.00 in favour of the Respondents.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)