Alhaji Saleh M. Toro & Anor V. Alhaji Isiyaku Yakubu (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA M. EKPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court Bauchi State presided over by Hon. Justice H. M. Tsammani in Suit No. BA/130/2001 on the 14th day of April 2005. The brief facts of the case are that the Respondent in the lower court sued the Appellants for a declaration of title to a piece of land known as Plot No. 8 Wase Close, Bauchi Industrial Area, covered by a Certificate of Occupancy No. BA/664 dated 10th July, 1980.

The Respondent in addition had also claimed that the appellants trespassed unto this plot of land belonging to him when they merged it with other plots in the area, destroying beacon stones, fencing and excavating the land, and even going further to plant mango trees thereon.

The Appellants on the other hand claimed title to a large piece of land in the same area measuring 6.25 hectres which land included the Respondent’s plot No.8 Wase Close, Bauchi Industrial Area. The Appellants further claimed that as at 1998 the Respondent’s title to the said No.8 Wase Close had been revoked by the Bauchi State Government and 6.25 hectres of land including No. 8 Wase Close had been granted to the Appellants.

The Respondent contended that Bauchi State Government did not revoke his interest on the land as no such revocation had been communicated to him.

The Appellants also contended among other issues that non-joinder of Bauchi State Government was fatal to the Respondent’s claim as the issue could not be effectively resolved without joining Bauchi State Government, Ministry of Land and Survey as a necessary party.

The trial court however entered judgment for the Respondent declaring him the owner of a part of the 6.25 hectres of land earlier granted the Respondent by the Bauchi State Government and awarded him general damages of N50, 000.00.

Dissatisfied, the Appellants however appealed against that judgment.

Learned Counsel for the Appellant filed 7 grounds of appeal and formulated 5 issues for determination. Counsel for the Respondent on his own part also formulated 5 issues for determination and adopted the Appellants’ issue No.3 as formulated by the Appellants. He however raised a preliminary objection pursuant to Order 3 Rule 15 of the Court of Appeal Rules praying the Court to strike out ground 4 of the Appellants’ ground of appeal for being grossly incompetent and incurably defective on the following grounds:

“1. That ground IV of the Appellants’ ground of appeal is vague, imprecise, confusing, and general in nature, contrary to Order 3 Rule 4 of the Court of Appeal Rules.

2. That ground IV is not a complaint against the decision of the trial judge on the applicability of Section 149 (d) of the Evidence Act.”

He argued that ground IV when read together with the particulars of error is largely imprecise, confusing and meaningless. That the particulars of error are unrelated to that ground of appeal. He then cited the case of CENTRAL BANK OF NIGERIA AND 1 OTHER V. AITE OKOJIE AND 5 OTHERS (2002) FWLR (Pt. 103) 349 held 5. He further submitted that ground IV of the Appellants’ ground of appeal is not a complaint against the decision of the trial judge on the applicability of Section 149 (d) of the Evidence Act. That an appeal can only be against or must relate to the decision of the trial judge. He cited the case of EGBE V. ALHAJI (1990) 1 NWLR (pt. 128) 546. He concluded that the learned trial judge rightly held that the Appellants had not drawn his attention to the evidence that was withheld but that with regard to the revocation of the Respondent’s Certificate of occupancy, he opined that the Respondent had led sufficient evidence enough to shift the burden onto the Appellants to prove that Respondent’s title to the said piece of land had been revoked at the time of the Appellant’s grant.

The Appellant on the other hand argued in his reply brief that by nature of the Respondent’s pleadings, the onus was on the Respondent to produce evidence from the Ministry of Lands and Survey to justify his claim of title to the said land and that failure to produce such evidence calls for the invocation of Section 149 (d) against him.

Section 149 (d) of the Evidence Act reads thus:

“(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”