Isah Doma Gupe & Ors V. Tanko Umaru Kwaita & Anor (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED MUSTAPHA, J.C.A.
This is an appeal against the judgment of the High Court of Niger State delivered on the 21st day of October, 2013, by a Notice of Appeal dated the 13th of January 2014, and filed on the same date, on the following grounds, shorn of their particulars:
GROUND ONE:
The judgment delivered by the lower Court is against the weight of evidence.
GROUND TWO:
The lower Court erred in law when it predicated title to the land in dispute on the respondents based on the information of one Fulani man during its visit to locus in quo.
GROUND THREE:
The lower Court erred in law when it held that the evidence of the plaintiffs outweighs that of the defendants (Appellants).
GROUND FOUR:
The lower Court erred in law when it held that there was evidence in support of the borrowing of the land in dispute to the defendants and payment of tribute by them.
From these grounds, two issues were formulated for the appellant, they were adopted by the respondents; the issues are as follows:
Issue One:
Whether the respondents sufficiently proved title to the land in dispute
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to be entitled to judgment (Grounds 1, 2 and 3)
Issue Two
Whether from the pleaded facts and evidence led thereon, the lower Court was right in holding that Appellants were borrowed the land in dispute and paid tribute in consequence thereof.
Issue One: It is submitted for the appellants that in a claim of this nature, the burden is on the plaintiffs/respondents to succeed on the strength of their case and not on the weakness of the defendants/appellants? case, by establishing that there are two Independent lands, as described in paragraphs 4 and 10 of the statement of claim.
That averments in pleadings not supported by evidence is worthless, so also evidence led without corresponding averment; learned counsel referred to AKANDE V. ADISA (2012) 5 SCNJ part 2 at 532.
That also since it has not been pleaded that the land in dispute described in paragraph 10 of the statement of claim was ever borrowed to the defendants/appellants father P2’s evidence is not predicated on any paragraph of the statement of claim.
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That while paragraph 5 of the statement of claim specifically mentioned Yakubu and Ishaku as having inherited the land
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described in paragraph 4 of the statement of claim, no mention was made of the appellants to have inherited their father of this land or cultivated the said land.
Learned counsel further submitted that it was not pleaded that the land in dispute was first cultivated by the respondents’ father and subsequently borrowed to the defendants/appellants’ father.
That the evidence led by PW1 in paragraph 3 of the witness’ statement on Oath and adopted as evidence is not pleaded and goes to no issue.
That also there is no written statement on Oath of any person known as Fulani man from pages 167 to 168 of the record, so there is no Fulani man who can be called a witness, yet the Court relied on his evidence; and also that the said evidence was not pleaded by either of the parties.
It is submitted for the respondents that even though the lands in paragraphs 4 and 10 were referred to as independent lands the two are integrated, and to appreciate that paragraphs 4, 5, 6, 7, 8 and 10 should be read together.
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That historical evidence includes evidence of first settlement and cultivation of the land in dispute; and the founding of the land in dispute
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he contended was pleaded in paragraph 3 of the statement of claim and PW3 testified in that regard at paragraphs 3 and 4 of his witness statement on oath; he referred the Court to NWOKIDU V. OKANU (2010) 1 SCNJ at 173.
That from the pleadings and evidence there is no conclusion the Court could have reached other that the plaintiff/respondents’ father was the 1st to cultivate the portion of the land in dispute referred to in paragraph 10.
Learned counsel further submitted that the comment regarding the Fulani man does not constitute a ratio decidendi of the case, it is at best an orbiter dictum, which did not constitute any reason for the decision of the Court and he referred the Court to ONAH V. OKENWA (2011) All FWLR part 565 at 371.
For the proper determination of whether there are one or two farms described by the respondents as belonging to their deceased father it is necessary to have recourse to paragraphs 4 and 10 of the statement of claim:
Paragraph 4:
?The entire land, plaintiffs’ father first cultivated, is bounded by the following people and things:
a. The land is bounded to the East by Kolu people
b. The
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land is bounded to the North by Gupe Hill
c. The land is bounded to the North West and West by Shagba people and a stream called Kpadamin.
d. The land is bound to the South by one Garba.”
Paragraph 10:
“The boundaries of the portion of land given to the
defendants by Plaintiffs’ father and to which the
Defendants are laying claim is as follows:-
a. It is bounded to the North by Gupe Hill;
b. it is bounded to East by Kolu people
c. it is bounded to the South by Bakaniki
d. it is bounded to the West by Alheri.”
It is necessary for a proper understanding of the con,
to read paragraphs 4 and 10, and doing so will reveal that one
is a portion of the other: and that explains the use of the word
“entire land” in paragraph 4 to describe the extent of land first
cultivated by the plaintiffs/respondents? father.
I agree with learned counsel to the respondents that a
community reading of the statement of claim particularly
paragraphs 4, 5, 6, 7 and 8, gives a clearer picture of the
relationship of the two portions described.
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Paragraph 4 clearly refers to the whole
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land in dispute,
while paragraph 10 refers to the portion of land in dispute,
which was ?borrowed? to the appellants’ father, and which the
appellants claim belongs to them.
The respondents contrary to the contention of learned
counsel to the appellants pleaded the first founding of the land in dispute at paragraph 3 of the statement of claim, by the averment that:
“The plaintiffs’ father …was the first person to cultivate the land after deforesting it…”
This averment was supported by the evidence of PW1 in
paragraphs 3 and 4 of his statement on oath, which was not
cross examined: PW2 also led evidence of the founding in
support of paragraph 3 of the statement of claim at page 133 of the record of proceedings, and PW3 and 5 whose evidence is on paragraphs 3 and 4, 5, 6 and 7 respectively at page 144 of the record of appeal.
The law is settled that evidence which is neither
challenged in cross-examination nor controverted by other
evidence, and is not by itself incredible should be acted upon
by the trial Court. See OFORLETTE V. THE STATE
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(2000) 12
NWLR (PT. 681) P.415; EGBUNIKE V. ACB LTD. (1995) 2
NWLR (PT.375) P.34; NZERIBE V. DAVE ENGR. CO. LTD
(1994) 8 NWLR (PT. 361) P.124.
The pleadings and evidence do indeed support the finding
of the trial Court the proper conclusion to be drawn in the
circumstances is that the plaintiff/respondents father first
cultivated the portion of land described in paragraph 10 of the
statement of claim as part of the whole described in paragraph
4 of the statement of claim; this Court does not believe in the
existence of two independent lands as argued for the
appellants.
The established principle is that if there is proper
evaluation of the evidence by the trial Court, in the sense that
every material finding is supported by the totality of evidence on
record, the appellate Court has no business to embark on a re-appraisal of the evidence in order to arrive at a different
conclusion; See CHIEF SALAMI OLATUNDE & ANOR. V. SALAMI AFOLABI ABIDOGUN & ANOR. (2001) 18 NWLR
(PT.746) 712 AT 722-733; DANIEL BASSIL & ANOR. V. CHIEF LASIS FAJEBE & ANOR.
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(2001) 11 NWLR (PT.725)
592 AT 608, 609.
On the question of whether the trial Court relied on the
unpleaded evidence of a nonexistent Fulani man, this Court
holds the view that, the comment under reference by the trial
Court is not the ratio decidendi of the case, but rather an orbiter
of sorts, because it did not form part of the reason or law on
which the case was decided; with or without the comment the
outcome of the case would not have been affected; a statement
made in passing by a Judge which is not necessary to the
determination of the case in hand is not a ratio decidendi of the
case, but an orbiter dictum and it has no binding effect for the
purpose of the doctrine of judicial precedent See: NAB v. BARZI ENGINEERING (NIG.) LTD (1995) 8 NWLR (pt.413)
257, DALHATU v. TURAKI (2003) 15 NWLR (pt. 843) 310.
The reasons for the trial Court’s finding are clearly stated
at page 249 of the record of appeal, where it held:
?the evidence of the plaintiffs on this…is
uncontroverted and unchallenged…the plaintiffs have
led credible and uncontroverted evidence on
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the defendants doings doing communal yearly farming for
the plaintiffs which the defendant counter claimant did
not controvert in evidence or cross examination.?
This issue is resolved in favour of the respondents, against the appellant without much ado.
Issue Two: Whether from the pleaded facts and
evidence led thereon, the lower Court was right in holding
that Appellants were borrowed the land in dispute and paid
tribute in consequence thereof.
It is submitted for the appellants that the description of the
land in dispute offered by PWS 6 and 7 is at variance with the
description of the land in dispute pleaded in paragraphs 10 and
11 of the statement of claim; that also the description of the
land by PWS 1 and 2 is at variance with that of PWS 4, 5, 6,
and 7.
That if the evidence PWS 4, 5, 6 and 7 is not in respect of
the land in dispute as described in paragraph 10 of the
statement of claim, it follows that the tribute alleged to have
been paid is not in respect of the land in dispute pleaded, and
therefore goes to no issue.
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That PWS 4, 5, 6 and 7 who did
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not form part of the group
that visited the locus in quo, even though they gave a
description of the land in dispute different from that pleaded in
paragraphs 4 and 10 of the statement of claim, ought to have
part of the team to determine if indeed the land is being referred to.
That also the basis of the conclusion of the lower Court
that the land in dispute was borrowed to the
defendants/appellants and that they paid tribute is without
foundation on the pleadings.
Learned counsel also submitted that the nature and type
of produce given by the appellants as tribute on the disputed
land was neither pleaded nor was evidence led by any of the
witnesses in that regard.
That if the land in dispute indeed belonged to the
respondents as found by the Court, and the appellants
borrowed it for farming only, why did the appellants convert part
of the land into their dwellings and another part into a cemetery
without any challenge from the respondents.
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It is submitted for the respondents that the boundary or the
identity of the land in dispute was never an issue, before the<br< p=””
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trial Court and this Court: that without a ground of appeal
challenging the findings of the trial Court that the identity of the
land and the boundaries were not questioned, the issue of the
identity of land described in paragraph 4 or 10 becomes an
extraneous issue before this Court.
Learned counsel submitted that contrary to the contention
of the appellants’ counsel the fact of borrowing and payment of
tribute were pleaded at paragraphs 5 and 6 of the statement of
claim, and evidence was led in that regard by PWS 1, and 2
who were not even cross examined; as well as PW4, 5 and 7.
It is clear from the grounds of appeal mentioned herein
above that neither identity nor the boundaries of the land in
dispute was an issue before the trial Court or this Court; the trial
Court held in this regard at page 246 that:
“…the identity of the land in dispute was never an
issue…this was not the defendants’ case here. They
did not specifically raise the issue of identity of the
disputed land in their statement of defense and did
not specifically dispute either the area, size
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or
location or the features of the land…they cannot
therefore make that an issue before the Court
now…the boundary of the disputed land is therefore
certain and it is settled.”
The appellants did not raise the issue of boundaries or
identity of the land in dispute in any of their four grounds of appeal filed vide the notice of the 13th of January, 2014; and it is trite that an issue not raised from any ground of appeal would not be considered by an appellate Court.
Where an issue formulated for determination in an appeal is neither related nor can be distilled from each or all of the grounds of appeal, the issue is said to be unarguable and it is to all intents and purposes incompetent with the resultant effect of being struck out. See ARAKA V. EGBUE (2003) 15 NSCQR 150; IFEDIORA V. UMEH (1988) 2 NWLR (PT.74) 5;
NWADIKE VS. IBEKWE (1987) 4 NWLR (Pt.67) 718;
MODUPE V. THE STATE (1988) 1 NWLR (PT.87) 130;
SHITTU VS. FASHAWE (2005) 14 NWLR (PT.946) 671.
?Where an issue raised in the brief does not relate to a
ground of Appeal, it is incompetent, because it is
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a non-issue and needs to be struck out, as it is settled law that issues are distilled from grounds of appeal, they derive their source from these grounds. See: A.C.B. PLC V. EMEDO (2003) 10 NWLR (PT. 828) PAGE 244, IKE V. ENANG (1999) 5 NWLR (PT. 602) PAGE 261, OKEKE V. ORUH (1999) 6 NWLR (PT. 606) PAGE 175, OSINUPEBI V. SAIBU & ORS. (1982) 7 SC 104.
Each party to an appeal, be it the appellant or the respondent is entitled to formulate what in their respective opinions amounts to the issue or issues for determination by the Court, the issues so formulated must as of necessity arise from and be related to the grounds of appeal filed; it is not permissible to canvass or tender argument on issues having no bearing with any of the grounds of appeal. See MADAGWA V. STATE (1988) 5 NWLR (PT.92) 60 AND IN AFRICAN PETROLEUM LTD. V. OWODUNNI (1991) 8 NWLR (PT.210) 391 AT 423, it was held that:
“…any issue raised or argument canvassed on an issue not arising from a ground of appeal is incompetent and liable to being struck out”.
?According all the reference to
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the issue of boundaries or
identity of the land contained in the appellants? brief is hereby
discountenanced.
On the issue of whether the trial Court was right in holding that the appellants borrowed the land in dispute and paid tribute to the respondents, the record of appeal shows, contrary to the contention of learned counsel to the appellants, that the respondents not only pleaded this fact at paragraphs 5 and 6 of the statement of claim, but also led evidence which was cross examined; and the law is trite that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness see LPELR-1300-SC; OFORLETE V. STATE (2000) 12 NWLR (PT.681) 415 @ 436; ADESULE V. MAYOWA & ORS (2011) LPELR-3667-CA.
PW4 also stated under cross examination at page 136 of
the record that:
“the reason why I know the land belongs to the
plaintiffs is because the defendants and I pay
tribute to the plaintiffs on the land”.
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PW 5 also led evidence on payment of tribute and borrowing at page 11 of the record of
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appeal; while PW7 led
evidence on payment of tribute and borrowing at page 147 of
the record of appeal.
Now in view of the averment in paragraphs 5 and 6 of the statement of claim and the evidence led through PWS 1, 2, 4, 5 and 7 it is clear that the payment of tribute and borrowing of the land was pleaded, and evidence led on same: it is therefore the considered opinion of this Court that the trial Court was right in holding that the plaintiff/respondents have established the payment of tribute by the appellants to respondent, because the disputed land was borrowed to them; accordingly this issue too is resolved in favour of the respondents, against the appellants.
Having resolved the two issues for determination in favour of the respondents, against the appellants, the appeal fails for lack of merit, and it is hereby dismissed.
Judgment of the trial Court of the 21st day of October, 2013 is hereby affirmed.
Cost of N50,000.00 is awarded in favour of the respondents against the appellant.
Other Citations: (2016)LCN/8626(CA)
