ALI v. DASONG (2020)

ALI v. DASONG

(2020)LCN/14902(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/YL/44/2020

RATIO

RELIEFS: RULE ON THR GRANT OF DECLARATORY RELIEFS

It is the law that declaratory reliefs are not granted as a matter of course and on platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007) 4 SCNJ 288, Chukwuma v. S.P.D.C. (Nig.) Ltd (1993) LPELR- 864 SC at 64 – 65 and Matanmi & Ors v. Dada & Anor (2013) LPELR – 19929. PER SHEHU ABIRIYI, J.C.A.
LAND LAW: ONE OF THE FIVE WAYS OF PROVING TITLE TO LAND

The parties sought to prove their respective claims by production of documents of title. This is one of five ways of proving title to land.

See Nkado v. Obiano (1997) 5 NWLR Pt. 503) 31 and Adesanya v. Aderonmu(2000) 6 SC (Pt. 11) PER SHEHU ABIRIYI, J.C.A.

APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION BE BASED ON

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

MALLAM GARBA ALI APPELANT(S)

And

ALHAJI MUKHTAR ISA DASONG RESPONDENT(S)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 17th December, 2019 in the High Court of Adamawa State holden at Yola. The Appellant was the Defendant while the Respondent was the Plaintiff in the High Court (the Court below).

In the Court below, the Respondent claimed against the Appellant for a declaration that the Appellant was a trespasser to the land in dispute, an order of perpetual injunction, damages in the sum of One Million Naira and costs.

The Appellant counterclaimed against the Respondent for a declaration that he is the owner of the land in dispute, that the acts of the Respondent amount to trespass and general damages of one Million Naira.

The case of the Respondent was that he applied for the allocation of the plot of land on 10th February, 1993 from Amna Shelleng and his application was granted. He applied for a Customary Certificate of Occupancy. Later he found some people building on the land and the people said they were building on the land on the instruction of the Appellant. He (Respondent) arranged for a meeting with the Appellant so that the issue could

be settled amicably but the Appellant did not turn up for the meeting.

The defence of the Appellant was that he bought the land in dispute in April 2005. He started developing the land. He was building a three bedroom house. When the building got to lintel level, the Respondent met him and said the land was his own. The Appellant referred the Respondent to Gideon Labawo from whom he bought the land but the Respondent refused to go to Gideon Labawo who is now late.

In 2014, the Respondent deposited a truck of sand on the land and moulded concrete blocks just to cause confusion and annoyance. The Appellant had been in occupation of the land since 2005 until 2013/2014 when the Respondent came and harassed his labourers on the land.

According to the Appellant, the Respondent only took advantage of his having acted as Secretary to His Royal Highness, the late Isa Dasong his father and produced fake title documents illegally.

The Court below considered the evidence adduced by the parties, addresses of learned counsel for the parties and entered judgment in favour of the Respondent.

The Appellant has approached this Court by a notice of

appeal dated and filed on 28th February, 2020. The notice of appeal contains eight grounds of appeal.

From the eight grounds of appeal, the Appellant in his brief of argument dated and filed on 6th May, 2020 presented the following seven issues for determination:
1. Whether there were material contradictions between the testimonies of PW.1 & PW.2 which destroyed the foundation of the respondent’s claim. (Distilled from Ground 3 of the notice of Appeal).
2. Whether the palace of Amna Shelleng was vested with powers to allocate lands upon which the respondent purportedly placed reliance upon. (Distilled from Ground 2 of the notice of Appeal).
3. Whether the lower Court did not abdicate its duty and thereby denied the appellant fair hearing when it failed to resolve the legal issues by the appellant for determination of the case. (Distilled from Grounds: 4 & 5 of the notice of Appeal.
4. Whether the lower Court erred in law when it expressed belief in the exhibit tendered by the respondent without stating reasons for such belief. (Distilled from Ground 6 of the notice of Appeal).
5. Whether the general damages of

One Hundred Thousand Naira (N100,000) only awarded against the appellant is not excessive and therefore unjustifiable. (Distilled from ground 7 of the notice of Appeal).
6. Whether the lower Court in entering judgment in favour of the respondent 154 days (over (5) months’ duration) after it adjourned to deliver judgment, did not lose touch with the facts of the case and the impression it had on the evidence of the witnesses thereby occasioning a miscarriage of justice. (Distilled from Ground 8 of the notice of Appeal).
7. Whether the judgment was not unwarranted, unreasonable and is against the weight of evidence. (Distilled from Ground 1 of the notice of Appeal).

The Respondent’s brief was filed on 16th July, 2020. The Respondent adopted the seven issues formulated by the Appellant.

On issue 1, learned counsel for the Appellant submitted that the evidence on the source of the Respondent’s title showed material contradictions which had destroyed the foundation of the Respondent’s claim. It was submitted that the Respondent as PW2 contradicted himself on material facts at every stage of his evidence with the PW1.

These contradictions, it was argued, were so glaring and grave that the Court below ought to have rejected the Respondent’s case completely.

On issue 2, learned counsel for the Appellant submitted that the Amna of Shelleng is not vested with the power, legal or equitable to allocate land to individuals howsoever.

It was contended that from the evidence, the Respondent did not apply to the local Government for allocation of land or for issuance of Local Government Certificate of Occupancy.

On issue 3, learned counsel for the Appellant contended that the Court below failed to resolve issues for determination. This, it was submitted, amounted to breach of fair hearing. Also that the Court below failed to make reference to the reply.

On issue 4, it was submitted that a mere expression by the Court below of its belief in arriving at its decision narrowed only to the exhibits tendered by the Respondent to the detriment of the Appellant without stating the reasons for the belief cannot be said to conform with fair hearing.

On issue 5, it was submitted that the award of N100,000 general damages was made in error as no material was

placed before the Court below by the Respondent upon which the lower Court arrived at the assessment.

On issue 6, it was submitted that the Court below delivered judgment 154 days after it adjourned for judgment over the 90 days stipulated by Section 294(5) of the Constitution and it thereby lost impression of evidence of the witnesses.

On issue 7, it was contended that Exhibit E upon which the Respondent based his claim to title was not only blank, but vague, vague in the sense that it is not dated. There is also no indication of the ward or area of the town in which the disputed land is lying and situate.

It was pointed out that Gideon Labawo who sold the land to the Appellant died and could not testify. The evidence led by the Appellant, it was submitted, was more credible.

On issue 1, learned counsel for the Respondent submitted that there were no material contradictions in the evidence of PW1 and PW2. The Appellant, it was submitted, did not point out in clear terms what exactly the contradictions are.

On issue 2, it was submitted that the land was allocated to the Respondent by the Amna Shelleng and not the palace of Amna

Shelleng as argued by Appellant’s counsel.

On issue 3, it was submitted that the trial Court is not bound by the issues formulated by counsel for determination. The trial Court, it was submitted, is bound to use evidence adduced before it in arriving at its decision and not necessarily the submissions of counsel or issues formulated by counsel. The trial Court, it was submitted, considered the cases of the parties including the counterclaim of the Appellant before arriving at a decision that the Respondent is entitled to the reliefs sought and also dismissed the Appellants counterclaim.

On issue 4, learned counsel for the Respondent submitted that the Court below stated the basis for its belief in the exhibits tendered by the parties. The Court was referred to the judgment of the Court below. That the Court below stated the reasons for believing the exhibits tendered by the Respondent and why it refused to attach any weight to the exhibits tendered by the Appellant.

On issue 5, it was submitted that an appellate Court does not usually interfere with an award of general damages unless it is shown that such award was manifestly so excessive

as to amount to an erroneous estimate. It was contended that the award of N100,000 general damages where N1Million was claimed is not excessive.

On issue 6, it was submitted that the appellant failed to show any miscarriage he suffered as a result of delivery of the judgment after 90 days stipulated by the Constitution.

On issue 7, learned for the Respondent submitted that the judgment of the trial Court is supported by the evidence and the exhibits presented before it. Learned counsel for the Respondent maintained that there was no contradiction in the evidence of PW1 and PW2. It was submitted that Exhibit A has described the land in dispute and the description of the land in dispute was not in issue in the pleadings of the parties. The Respondent, it was submitted, had proved a better title through the evidence of PW1 and PW2 and Exhibits A – F2. On the other hand, the claim of the Appellant lacked foundation as the Appellant failed to establish the root of title of Gideon Labawo who sold the land to him. It was contended that Exhibits G1 and G2 tendered by the Appellant is at variance with the counterclaim in the sense that he pleaded that

the land measured 42.50m South, 41m West, 44m North and 55m East, while Exhibits G1 and G2 show a different measurement of the land. It was the claim of the Appellant, it was submitted that was full of contradictions.

Appellant’s reply brief as rightly pointed out by learned counsel for the Respondent was a re-argument of the appeal contrary to Order 19 Rule 5(1) of the Court of Appeal Rules 2016.

The only issue for determination in my view is whether the Respondent has establish his claim to the land in dispute.

Each of the parties claimed for a declaratory relief and some other reliefs. It is the law that declaratory reliefs are not granted as a matter of course and on platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007) 4 SCNJ 288, Chukwuma v. S.P.D.C. (Nig.) Ltd (1993) LPELR- 864 SC at 64 – 65 and Matanmi & Ors v. Dada & Anor (2013) LPELR – 19929.
The parties sought to prove their respective claims by production of documents of title. This is one of five ways of proving title to land.

See Nkado v. Obiano (1997) 5 NWLR Pt. 503) 31 and Adesanya v. Aderonmu(2000) 6 SC (Pt. 11) 18. While the Respondent claimed that the land was allocated to him by Amna Shelleng, the Appellant claimed to have purchased the land. Exhibits G1 and G2 which are Hausa language and English Language versions of the purchase agreement tendered by the Appellant show that the land which he purchased measured, 100 metres by 100 metres. This is different from the size of the land he claimed in the counterclaim. In the amended defence and counterclaim, the Appellant claimed the land he was counterclaiming is measuring 42.50m South, 41m, West 44m North and 55m East. On this remarkable difference between the land claimed and the one allegedly purchased by the Appellant, it is not difficult to see that the Appellant was not entitled to the declaration sought and consequently the claim for the other reliefs by the Appellant must also fail.
The Respondent on the other hand tendered documents pointing to the fact that he applied for the allocation of the land from his Royal Highness Amna Shelleng, was allocated the land and he applied for a Local Government Certificate of Occupancy in

respect of the land. I agree with the Court below that on the evidence of PW1, PW2 and Exhibits A-F2 that the Respondent was entitled to the declaratory relief sought.

Learned counsel for the Appellant contended that there were material contradictions in the evidence led by the Respondent. He did not point out what they were. I have not seen any such contradictions in the evidence led by the Respondent.

It is the law that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently any argument in the brief in support of such issues will be discountenanced by the Court. See the decision of the Supreme in Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475.
Ground 2 of the grounds of appeal without the particulars reproduced immediately hereunder reads as follows:
GROUND TWO
The lower Court erred in Law when it declared title in favour of the Respondent thus:-
“A DECLARATION that the Defendant is a trespasser having trespassed in the pieces of land above belonging to

the plaintiff which is located at an area which is described in Hausa as “Kan Dutse Kuda da Arewa da G.S.S. Shelleng” measuring 95.70 metres x 50.50 metres (page …… of the Judgment). Thereby occasioned a miscarriage of justice.”
Issue 2 distilled from ground 2 is also reproduced below:
“2. Whether the palace of Amna Shelleng was vested with powers to allocate lands upon which the respondent purportedly placed reliance upon (Distilled from Ground 2 of the notice of Appeal).”
It is not difficult to see even at a glance that issue 2 is not formulated from ground 2. In the circumstance, issue 2 formulated by the Appellant is hereby discountenanced.

Appellant contended that the Court below failed to consider issues presented by him. I agree with learned counsel for the Respondent that the Court is not bound by the issues formulated by a party. The failure to consider issues presented by the Appellant in itself is no ground for interfering with the judgment of the Court below. The Appellant must show that the failure had led to a miscarriage of justice. This, the Appellant has not done.

Learned counsel for the Appellant also contended that the Court below believed the documents tendered by the Respondent without stating the reasons for doing so. At page 202 of the record, the Court below stated as follows:
“From the content of Exhibits B, C, D, it is clear that the plaintiff did apply to the land allocation committee under the leadership of the then Chief of Shelleng, his application was processed and the land in dispute was then allocated to him. He applied to the Local Government to issue him with a Customary Right of Occupancy, paid all the necessary fees.
The basis for his claim solely depend on Exhibits B-D.
The defendant/counter claimant base his claim on Exhibit G which is a sales agreement between himself and late Gideon Labawo in 2005. The plaintiff obtained the land in 1994.
The defendant when asked whether he knew how Gideon Labawo who sold to him got title to the land, the defendant/counter claimant said he did not inquire.”
At page 203 of the record, the Court below also stated thus:
“On the counter claim of the Defendant/counter claimant Exhibit G1 which passed title to him is incurably

defective Gideon Labawo sold that piece of land to him and issued a sale agreement Exhibit G1. The Defendant did not care to inquire how Gideon Labawo got the land. Gideon Labawo is now deceased nobody was call to testify on how Gideon Labawo got the land, infact the Defendant/counter claimant himself said he did not know how Gideon Labawo got the land, his counter claim must fail and is accordingly dismissed on the whole having believed Exhibit B-D, the Plaintiff has proved on the preponderance of evidence that he is entitled to the reliefs sought.”

It is clear from the foregoing that the Court below stated the reasons why it believed the exhibits tendered by the Respondent and why it refused to attach weight to the exhibit tendered by the Appellant.

I agree with the learned counsel for the Respondent that N100,000 general damages awarded to the Respondent is reasonable and is not excessive.

The Appellant has not shown any miscarriage of justice he suffered as a result of the delivery of the judgment of the Court below after the ninety (90) days stipulated by the Constitution.

The only issue formulated by the Court is hereby

resolved against the Appellant and in favour of the Respondent. The appeal is dismissed and the judgment of the Court below in suit No. ADSY/24/2014 is affirmed by me.

Respondent is awarded N100,000 costs which shall be paid by the Appellant.

CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother JAMES SHEHU ABIRIYI, JCA. I agree with his reasoning and conclusion in dismissing the appeal for lacking in merit.

I abide by the order made as to costs in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

N. WAYEH, ESQ. For Appellant(s)

WATAFUA, ESQ. For Respondent(s)