Adamu Gidado V. Mallam Salisu Lawal (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The Respondent, a Chartered Accountant was stated to have purchased a property known and described as Plot No. 41, Road ‘CF’ Unguwan Dosa Residential Extension Layout, Kaduna, from one Patrick Nkan Yari via a Deed of Assignment dated the 13th March, 2003 executed between him and the said Patrick Nkan Yari. He obtained the original Certificate of Occupancy thereto and later instructed his then Counsel to perfect his title therein.

The Government Approval was given for the said assignment of the remainder rights to him. He paid for the stamp duty and registration fees in the sum of N45,000.00 and N52,500.00 respectively. He was away between December, 2004 and December, 2007, and on his return, he discovered that the land had been trespassed upon by the Appellant. He immediately lodged a complaint against the same to the Ministry of Lands, Survey and Country Planning.

Following that, he initiated a civil proceeding against the Appellant which then gave rise to this appeal. The leave of the lower Court was granted to the Respondent on 28/1/09 to amend his Writ of Summons and Statement of Claim. The Amended Writ of Summons and Statement of Claim attached to the Motion were deemed as properly filed and served.

In his Amended Statement of Claim, he sought for (a) a declaration that he is entitled to the right of Occupancy over the said property situate at No. 41, Road “CF” in TPO 486A Unguwan Dosa, Kaduna which he acquired by purchase; (b) a declaration that the erection of any building and the occupation of Plot 41, Road, “CF’ on TPO 486A Ungwan (sic) Dosa, Kaduna by the Defendant is unlawful and illegal; and, (c) an order of perpetual injunction restraining the Defendant or whomsoever, his servants, agents, privies and any other persons that may act on his behalf from further entry, erecting, developing and building, occupying, selling, transferring and or putting up any structure on Plot 41, Road “CF” on TPO 486A Unguwan Dosa, Kaduna. He also sought for a consequential order asking KASUPDA to so demolish the illegal structure erected by the Respondent.

In his answer to all the allegations contained in the Respondent’s Amended Statement of Claim, the Appellant, on 2/2/2009 filed an Amended Statement of Defence of fourteen paragraphs dated 1/2/2009. Further, the Plaintiff filed a Reply to the said Amended Statement of Defence. Hearing was conducted by the lower Court, and at the trial, the Respondent testified for himself while the Defendant, i.e., the Appellant, called four witnesses. The trial Court evaluated the evidence, and, on 5/4/11, it delivered its judgment in which it concluded that the Respondent is entitled to his claims in their entirety as per paragraph 12(a), (b), and, (c) of the Plaintiff’s Amended Statement of Claim dated 20/11/08 and paragraph 13 of his Reply to the Defendant’s Amended Statement of Defence dated 26/3/09.

The judgment handed down seemed unacceptable to the Defendant that on 7/6/11, he filed his Notice of Appeal against the same. It was predicated on five grounds of appeal. The parties later filed and exchanged their Briefs of Argument which were adopted by them at the hearing of this appeal. Four issues were postulated for consideration in the Appellant’s Brief of Argument. They are:

1. Whether or not the trial Court’s inability to properly evaluate the existing evidence of the Appellant did not lead to a miscarriage of justice.
2. Whether or not the trial Court’s failure to consider the Appellant’s issues for determination did not lead to a miscarriage of justice.
3. Whether going by the pronouncements of the trial Court over the Appellant’s averments, same is fatal enough to divest him of his ownership, possession and title to the property.
4. Whether or not the doctrine of Laches and Acquiescence has properly availed the Appellant to entitle him to possession, ownership and title to the said land.”

However, the Respondent raised a Preliminary Objection which he hinged on three grounds. The said objection was in respect of grounds 1, 2, 3 and 5 of the Appellant’s grounds of appeal. He, also, asserted that ground No. 4 relates to the interlocutory ruling of the lower Court against which no appeal was filed. In addition, he propounded two issues for determination in this appeal and they read:

“1. Whether the trial Court properly evaluated the evidence in relation to the matter and equally identified the issues arising therefrom before arriving at the decision, subject of the instant appeal.

2. Whether the trial Court was justified in rejecting the unregistered sale agreements.”

In tendering arguments in respect of the Appellant’s issue No. 1, the Appellant’s learned Counsel, Yakubu Husseini Esq, firstly, relied on the decision in Chief Falade Onisaodu & Anor vs. Chief Asunmo Elewuju & Anor (2006) 7 SCNJ 270 and submitted that the trial Court is at all times guided by the tenets of justice, fairness and equity, therefore, it has a duty to evaluate and assess the totality of evidence adduced before it. He contended that the unimpeached evidence of D.W.2 and D.W.3 were not evaluated by the trial Court. He, also, referred to the Sales Agreements tendered by the Appellant but which were rejected by the trial Court for non registration, and, the cases of Iyiola Ogunjumo vs. Muritala Ademola (1995) 4 NWLR Part 389 at 254 – 265, Pastor J. Akinlolu Akinduro vs. Alhaji Idris Alaya (2007) 6 SCNJ 220; Chief D. S. Yaro vs. Arewa Construction Ltd & Anor (2007) 6 SCNJ page 148 and Kachalla vs. Banki (2006) 2 SCNJ page 305, and then submitted that an unregistered instrument is admissible to prove payment of money, and, coupled with possession, it may give right to an equitable interest enforceable by specific performance. He explained that the interest being claimed by virtue of the unregistered Sale Agreement is an equitable one, and, as such, the Appellant has a valid equitable interest in the property. He has an equitable title that will avail and protect his interest. He mentioned the Kaduna State Local Government Certificate of Occupancy No. KDA/A/1009722 dated 20/8/1988, tendered as Exhibit D, and, argued that the fact it was never revoked and that none of the Exhibits tendered cast doubt on its priority, the trial Court ought to have acknowledged its primacy and superiority over all subsequent interests. He then urged that issue No. 1, be resolved in favour of the Appellant.

On issue No. 2, learned Counsel stressed that it is the duty of all lower Courts to consider all issues placed before them except in the clearest cases, and, that the purpose of a Brief of Argument is not to identify and attack the defects of a judgment but to explain with legal principles and authorities whether a decision is right or wrong in the circumstances. He relied on A.G. Leventis Nig Plc vs. Chief Christian Akpu (2007) 6 SCNJ 242 at 254; Etajata vs. Ologbo (2007) 6 SCNJ page 462 at 477 – 478 and Okwejiminor vs. Gbakeji (2008) 1 SCNJ 481 at 507. Counsel emphasized that the trial Court only mentioned the tendering of Exhibit D1, the Appellant’s Customary Right of Occupancy and it made no pronouncement on it in its judgment, which he argued has occasioned miscarriage of justice. He contended that by failing to consider Exhibit D1, the trial Court excluded the evidence that supported the Appellant’s case on his good root of title and, the fact he was earlier in time i.e., the applicability of the doctrine of priorities. He cited the cases of Adole vs. Gwar (2008) 4 SCNJ page 1 at 14 and Ojeneme vs. Azodo (2005) ALL FWLR and stated that this Court is empowered to cure the miscarriage of justice inflicted by the trial Court, by re-evaluating the evidence. He submitted that the fact the Appellant’s Certificate of Occupancy was first in time and as it was not challenged by the Respondent and was not revoked by the relevant authority puts it on a higher pedestal than that of the Respondent. He then urged that this issue be determined in favour of the Appellant.

Turning to the third issue, learned Counsel made reference to the trial Court’s remarks at paragraphs 1 and 3 of page 278 of the record, paragraph 3 of pages 277, 272 and 273 paragraph 3, sections 57, 65 and 66 of the Evidence Act, page 275, and submitted that what the Appellant stated during cross – examination was an expression of his opinion, and nothing more, and, has no bearing on the fact of possession and ownership and the duty of the Court to apply the law to the evidence adduced before it. He contended that for the learned trial Judge to have had recourse to the statement he accredited to the Appellant’s Counsel during a pre-trial conference at a very early stage in the judgment is a grave error. He submitted that the trial Court is only mandated by the rules of evidence to act upon the pleaded facts and the evidence adduced before it, including documentary evidence, and, not to act on or rely on statement made by Counsel during pre-trial conference. By placing reliance on the statement made by Counsel during pre-trial conference shows that the learned trial Judge handed down a pre-conceived judgment, i.e., he had reached his decision before evaluating the evidence. Counsel referenced the cases of Aranyu (Rtd) vs. Mandilas Ltd (2007) 4 SCNJ page 388, Orlu vs. Gogo-Abite (2010) 1 SCNJ page 322, Otanma vs. Kingdom Youdubagha (2006) 1 SCNJ page 94 and Dada vs. Dosunmu (2008) 9 SCNJ page 31 and submitted that the onus of proving title in such matters is on the Plaintiff or Claimant, regardless of the Defendant’s admissions. It is the duty of the Plaintiff to prove his claims, not for the Defendant to disprove it. It goes to show that the statements attributed to the Appellant as admission are irrelevant as far as his opponent’s case is concerned. In civil matters, it is incumbent on the Plaintiff to establish his claims by discharging the burden of proof on him. He, therefore, urged this Court to answer the issue in the negative.

On the fourth issue, learned Counsel drew the attention of this Court to the cases of Awoniyi vs. Council, Yaba College of Technology (2006) All FWLR Part 300 at 1645 at 1659 and Madu vs. Madu (2008) 2 SCNJ page 245 at 248 and Blacks Law Dictionary, 8th Edition, Brian Garner (Ed.) 2004, West A. Thompson Business, page 891 and, emphasized that there is no evidence adduced before the lower Court which established that the Customary title of the Appellant nor that of his predecessors in title was ever revoked. He stated that there are two existing Rights of Occupancy and one takes priority over the other because it is first in time, and, secondly, it had never been revoked by the authorities. He argued that as far the law is concerned, it is valid and subsisting. He submitted that a decision reached per incuriam can be set aside on appeal. He harped on the merits of the doctrine of stare decisis and submitted that it is a dangerous standard if judicial precedents are not followed. He invited this Court to rely on Madu vs. Madu (supra) and allow the appeal and award judgment in favour of the Appellant.

The Respondent’s Counsel commenced his argument on the issues raised in relation to the Respondent’s Preliminary Objection. It was argued that the particulars of error in relation to grounds 1, 2, 3 and 5 of the Appellant’s Notice of Appeal are inconsistent with the main complaints in the grounds of appeal while ground No. 4 is in respect of an interlocutory decision of the lower Court against which no appeal was filed. He relied on Ali vs. Bashir (2008) 3 NWLR Part 1073 page 94 at 133 – 134 paragraphs G – A, and, submitted that particulars of a ground of appeal should not be an independent complaint from the ground of appeal itself but should be ancillary to it. He reproduced the affected grounds of appeal and stressed that ground No. 1 of the Notice of Appeal complained of the trial Judge’s award of title of the disputed land to the Respondent on the basis of admission whereas the Particulars of Error centered on Exhibit D tendered by the Appellant which has no correlation with the substance of ground No. 1. Also, ground No. 2 relates to non evaluation of the Appellant’s evidence while the Particulars of Error were on the Appellant’s Customary Right of occupancy and evidence of D.W.2 and D.W.3. He stated that the same plight befell ground No. 3 and its Particulars of Error. Learned Counsel cited Ezomo vs. N.N.B. Plc (2006) 14 NWLR and submitted that a ground of appeal and its Particulars must be compatible. He then urged this Court to discountenance the said Particulars and strike out issues 3 and 4 derived therefrom. He further relied on the cases of S.P.D.C. Nig. Ltd vs. Edamkye (2009) 14 NWLR Part 1160 page 1 at 23 paragraphs F – H and Kwara vs. Innocent (2009) 1 NWLR Part 1121- page 179 at 215 paragraph 13 and urged this Court to uphold the Preliminary Objection and strike out the entire appeal.