Customary Court Functions Complementarily to Traditional Institutions – HW Emmanuel J. Samaila





  • MR. PETER BAKO – Member

Date:13TH DECEMBER, 2022


The plaintiff claims against the defendant the declaration of title to a farmland located behind Day Secondary School, Gwantu, within the territorial jurisdiction of this honourable Court. The defendant counterclaimed title to the same land. In proof of his claim, the plaintiff called four witnesses. He testified as PW1. Bulus Adamu, Sarah John and Hannatu Samaila were PW2 – PW4 respectively. In his defence to the plaintiff’s  claim  and  proof  of  his  counterclaim,  the  defendant  gave evidence as DW1 and invited Dinatu Azega, Sabo Mamman and Adamu Awawa as DW2 – DW4 respectively.

The gravamen of the plaintiff’s case is that the land in dispute is his inheritance from his father who had inherited same from his (plaintiff’s) grandfather who deforested it. Conversely, the nub of the defendant’s case is that the land belongs to his (defendant’s) father, who cleared it, cultivated it and gave it on loan to the plaintiff’s father and other people, on which his family discontinued cultivation and left the land to fallow following their departure from the town as a result of a crisis.

Having heard the parties, this Court frames a lone question for determination, to wit: Who, between the parties, has proved a better title to the disputed land to merit a favourable declaration of its title?

The case of the parties is summarized below, a process which involves the interweaving of the appraisal of the credibility and plausibility of the parties’ testimonies and forms a necessary facet in our quest to justly determine this action.

As PW1, the plaintiff stated that the farmland in dispute was deforested by his grandfather whom his father inherited. He also gave a narration of a customary arbitration via which a land in dispute between him and the defendant was declared in favour of the defendant. Under cross- examination, PW1 denied that his father alongside other migrants was given portions of farmlands to cultivate. His evidence sounded plausible.

PW2 gave terse evidence. He stated that he was a customary tenant to the plaintiff’s father who gave him the disputed land which he cultivated for eight years after his arrival at Gwantu in 1977. His evidence was not impeached but contradicted by the evidence of DW4 who stated that the plaintiff has a farm in that area but not the land in dispute.

In her brief testimony, PW3, one of the women allowed by the plaintiff to cultivate a portion of the disputed land, stated that she cultivated the land for 10 years before the defendant asked her to leave. Under cross- examination, the witness admitted to not knowing the history of the land before it was given to her.

PW4 is the second woman allowed by the plaintiff to cultivate a portion of the disputed land. Her evidence is akin to that of PW1 and was not materially impeached by the defendant.

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DW1 testified that the land is a part of his inheritance from his father who cleared it and cultivated it before giving portions of it to his customary tenants, viz.: the plaintiff’s father, Markus and two other people, Danladi and Amos. He averred that the land was left to fallow in 2001 after his family had to leave town following a crisis but they recovered it from the other customary tenants after their return except the land the plaintiff’s father was allowed to cultivate which the plaintiff was claiming as his own. His evidence that DW2 was told by the plaintiff that he did not know the owner of the land was materially corroborated by DW2. He also testified about his acts of ownership which included the collection of rental fee from the women earlier permitted to cultivate portions of the disputed  land  by  the  plaintiff.  The  witness’  evidence  was  neither materially impeached nor was he discredited. We have no basis to doubt the plausibility of his testimony.

The evidence of DW2, which tallies with that of DW1 on the fact that the plaintiff had told her that he does not know the owner of the farm he put her in possession of to cultivate. Her testimony was not materially impeached nor was she discredited by the plaintiff. We find her evidence to be credible and plausible.

In his brief testimony, DW3 stated categorically that the land in dispute belongs to the defendant’s father, the overlord of the plaintiff’s father who came from Nandu. His evidence was not impeached nor was he discredited. Thus, we have no reason to disbelieve his evidence which is materially in sync with the testimony of DW1 on several facts.

The evidence of DW4 materially tallies with the testimonies of DW1 and DW3 that the defendant’s father cultivated the land. He added that the plaintiff cultivates a different land in the area. He added that he does not know how the defendant’s father got the land. As it was with the other defence witnesses, the testimony of DW4, which also buttresses the fact of the defendant’s victory in a customary arbitration, was not impeached. We have no basis to question the cogency and credibility of his testimony.

One of the grey areas in the testimony of the parties concerns the land in dispute and the land which was declared to belong to the defendant, against the plaintiff, via customary arbitration. The parties’ testimonies intertwined the facts about the disputed land and the land over which their dispute was settled via customary arbitration. It was during the visit to locus that it became crystal clear to the Court that the land the plaintiff was claiming was inclusive of the portion they earlier contested via customary arbitration. The parties were advised to focus on the portion which did not form a part of the other land. We find that it is the portion that  the  plaintiff  gave  to  the  three  women  to  cultivate  which  the defendant collected from them and collected rent from them, that constitutes the area in dispute in this action.

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This Court will not review the decision of the customary arbitrators as no evidence was led to show that any of the condition precedent for the bindingness  of customary  arbitration  was  breached.  See  the  case  of Ohiaeri v Akabeze (1992) 2 NWLR (Pt. 221) 1 at Pp 31-32, paras B-G. As I  stated  in  my  article  titled,  “Understanding  the  Dynamics  of  Civil Litigation in the Customary Court” published online by Social Science Research                                   Network                                   (SSRN < >):

“Litigants or their counsel must realize that one of the essences of the creation of the Customary Court is the strengthening of the role of traditional institutions. Therefore, the Court will not allow itself to be used to denigrate the importance and relevance of the acts of such institutions unless it is shown, for instance, that a fundamental rule of natural justice was breached in the process of arbitration. It needs to be underscored that the Court functions complementarily to traditional institutions to recognize, promote, enforce and further develop customary laws.”

In the case of Oparaji v Ohanu (1999) LPELR-SC176/1992 P.19, paras A- C, E-F or (1999) 9 NWLR (Pt 618), the court per Iguh, JSC stated that:

“It ought to be pointed out that a customary law arbitration decision has the same authority as the judgment or a judicial tribunal and will be binding on the parties and thus create an estoppel. Whether, however, such a decision will operate as estoppel per rem judicatam or issue estoppel can only be decided where the terms of the decision are clearly known and ascertained and, where they so operate both parties are entitled to invoke the plea. See Idika and other v. Erisi and others (1988) 1 N.S.C.C. 977 at 986; (1988) 2 N.W.L.R. (Part

78) 563, Mogo Chinwendu v. Mbamali and Another (1980)

3/4 S.C. 31 at 48, Joseph Larbi and Another v. Opanin Kwasi and Another (1950) 13 W.A.C.A. 81, Opanin Kwasi and Another v. Joseph Larbi and Another (Supra) Ahiwe Okere and Others v. Marcus Nwoke and Others (1991) 8 N. W.L.R. (Pt. 209) 317. I should also observe that where an arbitration under  customary  law  is  pronounced valid  and  binding,  it

would be repugnant to good sense and equity to allow the losing party to reject or resile from the decision of the arbitrators to which he had previously agreed. See Joseph Larbi and Another v. Opanin Kwast and Another (supra) and Agu v. Ikewibe (1991):1 N.W.L.R. (Pt. 180) 385.”

See also Ojibah v Ojibah (1991) 5 NWLR (Part 191) 296.

We are of the opinion that the plaintiff, who failed or refused to explore further customary channels of expressing his dissatisfaction with the outcome of the arbitration, aims to use the Court to recover what he lost. This  Court  will  not  lend itself  to  be  used  to  do  any act  which  will disparage the authority and lawful action of any traditional institution.

It is apparent that both parties relied on traditional history and acts of ownership in proof of their claims. These are two among five means of establishing title to land. See the case of Anagbado v. Faruk (2018) LPELR-44909 (SC) Pp. 21, Paras. B-D. It is trite law that a party who relies on proof by traditional history must establish the following facts:

  1. Who founded the land.
  2. How it was found.
  3. The particulars of the intervening owners without leaving any inexplicable gaps. See OLALEYE v. ADEJUMO (2005) All FWLR (Pt. 264) 827 at 843, paras G-H; CHIEF GODFREY OSSAI-UGBAH & ORS v. JOSEPH AGOLO (2014) LPELR-22189 (CA), p.20, paras. C-F; MOGAJI v. CADBURY NIG. LTD (1985) 2 NWLR (Pt. 7) 393.
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While the plaintiff averred that the disputed land was deforested by his grandfather  and  its  title  devolved  to  him  through  his  father,  the defendant stated that his father was the one who cleared the land. While the evidence of the defendant on this fact was materially corroborated by DW3, none of the plaintiff’s witnesses aside him testified on that fact. Considering the evidence of the parties marshalled in proof of their root of title, we find the narrative of the defendant to be more credible, cogent and plausible than that of the plaintiff. We so hold.

We deem it necessary to examine the acts of ownership which both parties also relied on in their quest to prove their case. The plaintiff’s purported acts of ownership, which he had no authority to do as even he had told one of the women he placed in the disputed land that he does not know its owner, falls like a pack of cards when placed side by side with the invincible case of the defendant whose father owns the land and to whom the plaintiff’s father was a customary tenant. We so hold.

In view of the foregoing and based on the preponderance of evidence and balance of probabilities, the lone question for determination is answered in favour of the defendant. We find that the defendant has satisfactorily proved  his title  to  the disputed land. We  so hold. The plaintiff’s claim fails and it is hereby dismissed. The counterclaim of the defendant succeeds. Therefore, judgment is hereby entered in favour of the defendant against the plaintiff as follows: The title to the disputed land situate behind Day Secondary, Gwantu, Sanga LGA, Kaduna State is hereby declared in favour of the defendant against the plaintiff. The land is described as follows:

  1. a. North: bounds a stream which demarcates the defendant’s land with that of Bala Ancha who bought it from Musa Karma, my elder brother.
  2. b. East: bounds the farmlands of Ahmadu and Sabo, DW3, marked by a line of ticks.
  3. West: bounds  a  footpath which  cuts  through  the  defendant’s farmland.
  4. d. South: bounds a footpath which marks the defendant’s boundary with his farmlan

Cost of this action is assessed at the sum of N30,000.00 in favour of the defendant against the plaintiff.

Any  party  that  is  dissatisfied  with  this  decision  may  appeal  to  the Customary Court of Appeal, Kaduna within 30 days from today being 13th.


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