Alhaji Sani Mai Walda V. Alhaji Sani Maizare (2000)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A.

This appeal is against the decision of M. N. Abdullahi J. sitting in Kano in the Kano Judicial Division dated 30th September, 1998 in Suit No. K/162/98 dismissing the action of the appellant herein who was the plaintiff in that court against the respondent herein.

The facts of the case are straightforward. It is common ground that in March, 1998 the plaintiff in the Court below instituted an action against the defendants in that court. The claim before the Lower Court, which began the present action on appeal was as set out below:-

The plaintiff’s claim is for:-

(a) An order of this Honourable court perpetually restraining the defendants and their agents from further claiming the plot (in dispute).

(b)The sum of N100,000.00 (One Hundred Thousand Naira) as general damages.

(c) Cost of instituting and prosecuting this action.

The plaintiff as well as the defendant in that court were not represented by counsel and so no pleadings were filed. The trial proceeded without pleadings, the learned trial Judge relying on oral evidence given by the parties and their witnesses.

The appellant’s case was that sometime or about 1983, he bought a piece of land lying and situate at Dorayi Quarters in Kano from one Lawan Isyaku through a dealer, M. Yahaya at the cost of N300.00 in the presence of witnesses. The transaction was duly reduced into writing and the appellant sought and obtained the confirmation and approval of the Ward Head.

Later on, with the approval of the Ward Head he bought another piece or parcel of land adjoining the first one from the rear, from one Alhaji Salisu Ali at the cost of N300.00. This transaction was also documented and duly attested to by witnesses.

The sale document dated 15/2/92 was admitted as Exhibit 1. Evidence of change of ownership was admitted as Exhibit 2. The receipts the appellant received in the course of processing were Exhibits 3 – 3C. receipts of expenditure on the plots were Exhibits 4 and 4A.

The defendant/Respondent’s case was that the disputed plot was in his farmland which he bought from the vendor, one Alhaji Lawal. The shop, the subject-matter of this appeal is on the Respondent’s plot. After hearing the parties and their respective witnesses, the learned trial Judge on 30/9/98 delivered his judgment in which he held at page 18 lines 14- 18 of the record as follows:-

“In the circumstance, I am satisfied that the disputed plot where the plaintiff has built shops belongs to the 1st defendant.

I accordingly hereby dismiss the case of the plaintiff as it lacks merit. The disputed land where the plaintiff has built shops does not belong to him Alhaji Mai Walda.”

It is against this judgment that the appellant has appealed to this court on four grounds of appeal which are reproduced hereunder:-

GROUNDS OF APPEAL:

“(1) The learned trial Judge erred in law and arrived at a wrong conclusion by his refusal to consider Exhibit 2 in his judgment when he held in his judgment that “the only relevant document is Exhibit 5″ thereby disregarding it completely.

(ii) The learned trial Judge misdirected himself by misconstruing the facts, and effect of the evidence adduced before him and therefore arrived at a wrong conclusion.

(iii) The learned trial Judge erred in law and arrived at a wrong conclusion by excluding vital evidence adduced before him in his determination of the dispute between the parties thereby arriving at a wrong decision.

(iv) The judgment of the trial court is against the weight of evidence.”

The appellant distilled one issue for determination from the four grounds of appeal, which is reproduced hereunder:-

“1. Whether the failure of the learned trial Judge to consider vital documents and evidence adduced before him did not amount to wrongful exclusion of evidence, and whether such refusal or exclusion did not occasion miscarriage of justice in the circumstances of this case.”

The respondent formulated two issues for determination as reproduced below:-

“1. Whether or not the trial court is right in dismissing the appellant’s case before it and refusing to order for the reliefs he sought through his writ of summons dated 28th March 1998.

2. Whether or not the learned trial court was right in holding that the 1st respondent is the owner of the disputed piece of land having regard to evidence and witnesses presented to it.”

On receipt of the respondent’s brief, the appellant filed appellant’s reply brief. In it he formulated one issue in reply to respondents issue No.2 as follows:-

“1. Whether in spite of the absence of any counter- claim filed in this case by the respondent at the lower court the court could proceed to declare him as the owner of the disputed plot of land simply because the appellant was unable to establish his claim before the lower court?.”

I have taken a look at the issues distilled from the grounds of appeal by both the appellant and the respondent. The sole issue formulated by the appellant can be taken together with the first issue formulated by the respondent. They all relate to the findings of fact by the trial Court.

I may wish to digress here to comment on the second issue formulated by the respondent. This issue is reproduced elsewhere in this judgment. In a nutshell, it questioned the power of the trial judge to hold that the 1st respondent is the owner of the land in dispute when the defendant had no such claim before the court.

I may point out that what the learned trial Judge said, if taken in isolation, may be misleading. What the trial Court said was as follows:-

“In the circumstances, I am satisfied that the disputed plot where the plaintiff built shops belongs to the 1st defendant. I accordingly hereby dismiss the case of the plaintiff as it lacks merit. The disputed plot where he has built shops does not belong to him Alhaji Mai Waldar.”

It appears to me that the learned trial Judge gave as a reason for dismissing the plaintiffs case, that the disputed plot does not belong to the plaintiff. It is a fact the defendant did not seek any relief and the court gave him none. I am unable to see how what the learned trial Judge said amounted to conferring title to the disputed land on the defendant.

Secondly, the second issue formulated by the respondent did not arise from any of the grounds of appeal. It is our law that an issue or issues could only be framed from a competent ground of appeal. In other words, it is not permissible for any of the parties to canvass or tender argument on issues having no bearing with any of the grounds of appeal as an argument canvassed on an issue not arising from a ground of appeal is incompetent and liable to be struck out. Each party to an appeal is entitled to formulate what are in his opinion, the issues for determination but the issue so formulated must arise from and be related to the grounds of appeal filed. In the instant case, the formulation contained in the second issue on the respondent’s brief, is not related to any of the grounds of appeal filed and therefore incompetent. See Madagwa v. State (1988) 5 NWLR (Pt.92) 60; African Petroleum v. Owodunmi (1991) 8 NWLR (Pt.210) 391 at 423, Okoye v. Nigerian Construction and Furnishing Company Ltd (1991) 6 NWLR (Pt.199) 501 at 533; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208.

It is pertinent to mention the reply brief filed by the appellant in reply to the respondent’s issue No.2. The appellant appears to have joined issues with the respondent’s second issue. In normal circumstances, this would raise a triable issue. But as the issue did not arise from any ground of appeal, it is null and void. Being a nullity, someone cannot put something on nothing and expect it to stand. It cannot. A null issue does not exist at all and no issue can be joined on nothingness.

That being the case, it is my respectful view that both the 2nd respondent’s 2nd issue and the appellant’s reply brief cannot stand. They must be and are hereby struck out.

I now take on appellant’s only issue and the respondent’s 1st issue as they seem to touch on one issue; the finding fact by the trial court.

The appellant who was the plaintiff in the lower court flagged off this argument by submitting that the learned trial Judge was in error of law and arrived at a wrong conclusion when he excluded vital documentary evidence adduced before him. He argues that the appellant bought two pieces of land in a village called Dorayi, one from one M. Lawal through one Yahaya. The vendor of the other piece is not known. The appellant tendered certain ‘Exhibits’. I have seen photocopies of them at pages 25 to 30 of the records. But the originals of it bear no relevance to the plots the appellant said he owned at Dorayi. In the original case, file 1 was shown scraps of papers written in a language other than the language of the court. They did not bear any impression of documents transferring an estate in land and have no relevance to the documents the appellant’s counsel referred me to at pages 25 – 30 of the records. From the record they were admitted quite alright but of what use the trial Judge put them is a different matter. The learned trial Judge, after a careful consideration, ignored them for the purpose of his judgment and I agree with him. If those papers I found in the file which bore no semblance to documents transferring an estate in land are the documents he is replying on, then he is putting something on nothing.

It is pertinent here to avert to the fact that the claim before the court was for trespass and injunction. This claim invariably raises the issue of proof of title to the land by the appellant. In Udo v. Obot (1989) 1 NWLR (Pt.95) 59 it was held that in a claim for trespass, one need not necessarily be an owner of land, what is required is that the claimant proves is exclusive possession not title, but where the claimant claims damages for trespass and an injunction against further trespass, it follows that he puts his title in issue; at 83 para E per Agbaje, J.S.C. See also the decision of the Judicial committee of the Privy Council in Kponkglo v. Kodadja 1 WACA 24 at 29 as per Lord Alnese:

“…That being so, the respondent’s action for damages, and for an injunction which postulates a title in him to land, fails in fact and in law.”

Ownership of land may be proved in any of the following five ways:-

1. By traditional evidence;
2. By production of documents of title which are duly authenticated;
3. By acts of selling, leasing renting out all or part of the land or farming on it or on a portion of it.
4. By acts of possession and enjoyment of the land; and
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

See Idundun v. Okumagba (1976) 9/10 SC 227.

In respect of (2) above, the appellant tendered five documents viz:-

1. Land and regional planning – Receipt for application fee dated 7/5/90

2. Kassepa receipt dated 30-5-91 in the sum of N1,700.00 for building plan approval.

3. Kassepa 1st notice to the plaintiff/appellant dated 2-5-96 to stop development.

4. I.O.U. by one Haruna Yusuf to the plaintiff/appellant dated 15/8/96; and

5. Sale of plot document by one Lawan Isyaku dated 15/2/1993 in the sum of N300.00.

The learned trial Judge found them useless, from not being relevant to the land in dispute to “lacking in description of the plaintiff’.

In addition, none of the documents was in the language of the court or duly authenticated. The learned trial Judge was right in not attaching any weight to them for this and other reasons given elsewhere in this judgment. Proof in No.2 in Idundun v. Okumagba (supra) fails.

The learned trial Judge proceeded to consider the oral evidence of the plaintiff and his witnesses and found them to be in utter disarray and confusion. They were in conflict with one another and therefore not reliable and credible. The learned trial Court said:-

“In the totality of the plaintiff’s case, it is clear that he has failed to prove his case even through his witnesses…”

He, the learned trial Judge, examined the defendants/respondents case including, of course, the testimonies of his witnesses. He observed at page 18 of the records:

“In the light of the failure of the plaintiff to prove his case, the court is left with no option but to accept and rely on the defence given by DW1, Sani Maizare and DW2, Yakubu Ibrahim as the care-taker of the defendant …”

He referred to his visit to the lacus in quo and concluded thus:-

“In the circumstances, I am satisfied that the disputed plot where the plaintiff has built shops belongs to the 1st defendant. I accordingly hereby dismiss the case for the plaintiff as it lacks merit. The disputed plot where he has built his shops does not belong to him, Alhaji Mai Waldar.”

The main onslaught of the appellant on the decision of the trial court was on wrongful evaluation of documentary evidence and weight of evidence generally.

The respondent made a feeble attempt at replying to these issues. Be that as it may, the law is clear on the attitude of an appellate court in this regard. On evaluation of documentary evidence, an appeal court leans more on contemporaneous documents than on demeanour of witnesses and would reverse the findings of fact by a lower court based on demeanour of witnesses if such demeanour was in conflict with contemporaneous documents……..Aplin v. NNDC (1972) 12 SC 33.

In Onassis & Anor v. Vergottis reported in Times Law Report of January 23, 1968, Lord Denning M.R. had this to say:-

“The Judge was in the best position to decide on the parties demeanour, but demeanour was not the touchstone, for a man might look shifty and spiteful, and yet be telling the truth, and his spitefulness might come from anger and not from lies. Demeanour of a witness had to be tested by the documents and by the probabilities in the case…”

In this appeal for reasons stated above in this judgment, there was no document before the lower court, nay, in this court.

Even on the evaluation of evidence generally, the appellate court would not ordinarily quarrel with the evaluation of evidence where the evaluation was the court’s impression of the evidence given by witnesses. See Akpapuna v. Nzeka (1983) 2 SCNLR 1.

Again where all that is before the Court of Appeal is the cold printed record and without the benefit of watching the demeanour of the witnesses, the Court of Appeal cannot embark on a re-evaluation of evidence and ascribe any probative value to the evidence adduced and arrive at a different conclusion from the one arrived at by the trial Court. See Njoku v. Osimiri (1999) 5 NWLR (Pt.601) 120 at 124 paras A-B. In Igodo v. Owulo (1999) 5 NWLR (Pt.601) 70 at 77 paras A-B, it was held that an appellate court should not interfere with the findings of a lower Court, unless found to be perverse or that the lower court raised wrong inferences upon accepted facts or applied wrong principles to such facts.

In the instant case, the findings by the court of trial was clearly that the appellant who was plaintiff by both his documentary and oral evidence did not prove his case. This was a claim for trespass and injunction which invariably calls for proof of ownership of the land, as pointed out elsewhere in this judgment. The plaintiff failed to discharge that burden and the trial Judge dismissed his case and with respect, I find that decision unassailable.

The duty of appraising and evaluating of evidence belongs to the trial Court that saw and heard the witnesses, and an appellate court may not disturb a finding or conclusion in a judgment simply because it would have come to a different finding or conclusions on the facts.  However, the appellate court may interfere with such conclusion or finding if it is satisfied that:

(a) the finding was perverse and not as a result of proper exercise of judicial discretion, or

(b) the finding is an inference from established facts, so that the appeal court is in as vantage a position as the trial court to draw its own conclusion.

(c) the trial Court applied wrong principles of law.

In the case before us, there is no evidence, cogent and coherent to warrant this court disturbing the findings of the trial Court arising from the evidence before it. See Woluchem v. Gudi (1981) 5 SC 291 at 326; Nwobodo v. Onoh (1984) 1 SCNLR 1.

For all the reasons I have given in this judgment, I am of the respectful view that this appeal is unmeritorious and fails on the sole issue canvassed and I hereby dismiss it.

I assess the costs of this appeal at N3,000.00 in favour of the respondent.

SALAMI, J.C.A.: I read before now the judgment just delivered by my learned brother, Umoren, J.C.A. and am in agreement with the reasoning and the conclusion contained therein.

The plaintiff, in the action resulting in this appeal, claimed for a perpetual injunction in addition to damages apparently for trespass. When a party claims for injunction and trespass together he puts his title into issue and the Judge is required to consider title or exclusive possession of it: See Abotche Kponuglo v. Adja Kododja 2 WACA 24. This was cited with approval by the Federal Supreme Court in Okorie & Another v. Udom & others (1960) 5 FSC 162, 165. The appellant called witnesses who were discredited under cross-examination and tendered 5 documentary evidence. Some of the witnesses admitted that they know nothing about the transaction in respect of which they were brought to court to testify. Some even told the court that they were too young at the time of the transaction that they cannot be expected to give account of what took place. He advised the appellant/plaintiff to invite his senior brothers who might be better placed. Neither the oral nor the documentary evidence showed the boundary or extent of the land the plaintiff set out to claim. It emerges however that the disputed shops were on respondent’s land. The learned trial Judge having considered the evidence produced before him, found that the land belongs to the defendant and not to the plaintiff. Consequently he rightly refused to grant the relief sought. In the absence of a clear proof of interest, an order of injunction will not be granted because injunction is to protect a right or a threatened injury.

It is fundamental principle of the rule for granting injunction that the courts will cause an injunction to issue only in support of a legal right or a threatened right. Where there is no threat of violation to a right, a plaintiff would not be entitled to an injunction. See Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506; Opara v. Ihejirika (1990) 6 NWLR (Pt.156) 291, 299; Montgomery v. Montgomery (1965) P.46; Commissioner for Works Benue State v. Devcon Development Consultants Ltd (1988) 3 NWLR (Pt.83) 407.

The court having found that the parcel of land in dispute does not belong to the plaintiff but to the defendant, there is no interest or right on which to predicate the relief for perpetual injunction. To succeed, the plaintiff has to show he owns the land because the relief of injunction is mainly ancillary to those of title. The position is better defined by the Latin expression accessorium non ducit sad sequitur sum principale, meaning the accessory does not lead but follow its principal. There must first be title before the accessory right of injunction can be imposed to protect the right for which title had been sought – Green v. Green (1987) 3 NWLR (Pt.61) 480.

Contrary to the contention of the learned counsel for appellant, the plaintiff in this trial court, that the finding of the learned trial Judge

“that the disputed plot where the plaintiff has built shops belongs to the 1st defendant. I accordingly hereby dismiss the case of the plaintiff as it lacks merit. The disputed shop where he has built shops does not belong to him Alhaji Mai Waldar.”

tantamount to declaration for the first respondent means no more than his finding whether or not the appellant had title or better title to the land. Having satisfied himself that the appellant had neither title nor better title than the first respondent, he simply dismissed the suit. He never awarded the parcel of land to the respondent. The decision was supported by evidence and the report of the visit to the locus in quo which had not, in any manner, been impugned. What the court did was therefore in accord with the case of Okorie v. Udom (supra), Kponuglo v. Kodadja (supra) and Fabunmi v. Agbe (1985) 1 NWLR (pt.2) 299, 321. It is incumbent on the Judge to consider title or exclusive possession of it. For this reason and the fuller reason contained in the judgment of my learned brother Umoren, JCA, I, too, dismiss the appeal and affirm the decision of the learned trial Judge. I agree with all the consequential order, including the order as to costs, proposed in the said lead judgment.

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Other Citations: (2000)LCN/0924(CA)