Alhaji Lawal Darma V. Alhaji Maiwada Batagarawa (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the High Court of Justice of Katsina State of Nigeria, the plaintiff claimed as follows:
a. A declaration of title over a parcel of land lying and situate at or near Flour Mills Katsina, which he bought from one Alhaji Halidu Rafindadi.
b. An injunction restraining the appellant, his agents, servants and privies from raising any claim or trespassing over the piece of land.
c. General damages for trespass in the sum of N5,000.00.

The plaintiff with leave of the trial court filed his statement of claim. The defendant on entering his appearance filed his statement of defence whereby he denied the plaintiff’s claim. The parties having joined issues, the plaintiff called two witnesses and tendered a photographic copy of a sale agreement in support of his claim, while the defendant called four witnesses including himself in support of his defence. Learned trial Judge, Sanusi, J. (as he then was) in a reserved and considered judgment entered judgment in favour of the plaintiff.

The defendant being unhappy with the decision appealed to this Court on two original and four additional grounds of appeal which were filed with the leave of the Court on 22nd May, 2002.

The defendant in prosecution of his appeal formulated four issues from his 4 additional grounds of appeal. The issues which the defendant (hereinafter referred to as the appellant) framed from the 4 additional grounds of appeal read as follows:
1. Whether the respondent proved title or is entitled to declaration of title over the disputed land? Ground 2 of the additional appeal.
2. Whether there is onus of proof on the appellant who did not counter-claim for title to the disputed land?
Ground 3 of the additional grounds of appeal.
3. Whether the learned trial Judge properly acted on exhibit 1 written in Hausa language? Ground 1 of the additional grounds of appeal.
4. Whether the judgment is supported by credible admissible evidence proffered at the trial? Ground 4 of the grounds of appeal.”

Learned counsel for the appellant abandons the 2 original grounds of appeal and urges the court to strike them out. The appellant having failed to submit an issue or issues in support of the original grounds of appeal the same are hereby struck out.

On the other hand, the plaintiff framed only one issue to meet the challenges foisted on him in the appellant’s four issues which issue respectfully is academic and reads as follows:
“Whether having regards to the respondent’s statement of claim and the evidence adduced before the trial court, the court was right in coming to the conclusion that the respondent has proved his claim on the balance of probability.”

It seems to me respectfully that the respondent is only contesting appellant’s issue 4 and has no answer to appellant’s remaining three other issues, 1, 2 and 3. It appears, however, that the questions asked by the appellant in his four formulations can be accommodated under one issue as they deal essentially with evaluation of evidence and appreciation of the party on whom onus of proof laid. As a matter of convenience, I propose to take the issues seriatim, in the pigeon hole into which the appellant had slotted them, if for no other reason than convenience.

Appellant’s issue 1 is framed from his ground 2 which I reproduce immediately hereunder:
“2. The learned trial Judge erred in law when he held that the plaintiff/respondent has proved title over the land in dispute when the plaintiff/respondent’s vendor (DW1) testified that the entire parcel of land he DW1 sold to the plaintiff/respondent was acquired by the Katsina State Government for building of Katsina Flour Mill and access road to the said Mill.

PARTICULARS OF ERROR:
(a) The plaintiff/respondent in his statement of claim and evidence traced his root of title over the land in dispute to Alhaji Halidu Rafindadi.
(b) Alhaji Halidu Rafindadi who testified as DW1 at the trial stated that:
“The plaintiff’s large portion of the land he bought from me fell in the area the government wanted to revoke for the purpose of establishing Katsina Flour Mill and the only portion left also fell on the access road to the proposed Flour Mill extending also up to Alhaji Biliya’s portion of the land he bought from me.”
(c) The plaintiff/respondent admitted under cross-examination that he was paid compensation of N1 ,510.00 for the acquisition of the land in dispute by Katsina State Government.”

The totality of this ground of appeal, in my respectful view, is that the respondent had no title to the land which was declared for him by the learned trial Judge. The question, therefore is, on the respondent’s showing, is the land in dispute, the property respondent purchased from his vendors Alhaji Halidu Rafindadi, the common vendor of the respondent, the DW1 and one Alhaji Biliya Ahmed who eventually sold a portion of his own acquisition to the respondent still respondent’s property? I do not think, therefore, that this issue does permit of argument on joinder and non joinder of party or parties nor failure to call a particular witness or witnesses. The simple dispute here is whether, contrary to the finding of the learned trial Judge, respondent’s property in that location had not been acquired for overriding public purpose? Any argument canvassed outside this perimeter is outside the compass of this issue and therefore irrelevant thereto.

In this connection, the appellant contended in the appellant’s brief that in paragraphs 3 and 9 of his statement of defence he averred that respondent sold 2 plots to him for N12,000.00 and thereafter one Alhaji Biliya Ahmed claimed ownership of the plot now in dispute and traced his root of title to respondent’s vendor. Learned counsel for appellant further contended that in spite of this respondent failed to join issue with him on this point. Learned counsel, in this connection, referred to the testimony of DW1 and the respondent on the said averments. Learned counsel then submitted that the finding of the learned trial Judge and the inference drawn from the evidence adduced by first defence witness did not flow from the evidence of that witness.

It is apt, at this stage to read the pleadings and evidence referred to in the submission of the learned counsel for the appellant which averments and evidence he alleged were neither denied nor controverted. Paragraphs 3 and 9 of the statement of defence aver as follows:
“3. The defendant denies paragraph 3 of the plaintiff’s statement of claim and further avers that the plaintiff has sold to him two plots of land situate near Darma Farm along Dutsinma Road, in Katsina township, at the sum of N12,000.00 and those 2 plots were later proved not to belong to the plaintiff was convicted of cheating by Area Court No. 11, Katsina. A copy of judgment is hereby pleaded and shall be relied upon by the defendant at the hearing of the suit.
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9. In further answer to paragraph 9 of the plaintiff’s statement of claim the defendant avers that after the transaction referred to in paragraph 7 above, he was approached by one Biliya Ahmed with a threat of court action over the plots he bought from the plaintiff because the plaintiff was not the owner, as his own portion, which both the said Biliya Ahmed and the plaintiff bought from the same vendor has been submerged by the Katsina Flour Mills Ltd. This prompted the defendant to lodge a direct complaint against the plaintiff before the Area Court No. 11 , Katsina and the plaintiff was convicted and fined …”

The respondent was required, in the circumstance, under Order 24 rule 3(1) of Katsina State High Court (Civil Procedure) Rules, Cap. 60, of the Laws of Katsina State of Nigeria, 1991, to have filed a reply to the statement of defence to enable him join issue with the appellant in respect of the fresh issue canvassed in the statement of defence. The evidence the respondent led challenging the appellant’s averment that the respondent’s land had been acquired goes to no issue. See Mba v Agu (1999) 3 NWLR (Pt.595) 400, (1999) 9 SCNJ 84, 102 and Tende & Ors. v. A.-G. of the Federation & Ors. (1988) 1 NWLR (pt. 71) 506 at 517 where this Court held per Kolawole, J.C.A that:
“The plaintiffs/appellants did not file a reply to this important averment which, in my opinion, was a policy decision. If they did not agree with the assertion they were in duty bound to file further pleadings to deny the averment by virtue of Order XXXIII rule 16 of the High Court Rules of Eastern Nigeria Cap. 61 applicable to Rivers State.”
His failure to join issue with the appellant on those 2 paragraphs amounts to admission.