MANSUR ABDULLAHI v. ALHAJI MOHAMMADU JABBO BANI
(2014)LCN/7082(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of April, 2014
CA/S/128/2013
JUSTICES:
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
JAMES S. ABIRIYI Justice of The Court of Appeal of Nigeria
Between
MANSUR ABDULLAHI – Appellant(s)
AND
ALHAJI MOHAMMADU JABBO BANI – Respondent(s)
RATIO
DEFINITION OF GROUNDS OF APPEAL
I have carefully considered the arguments canvassed for and against the preliminary objection raised by Respondent.
“Grounds of appeal provide the mirror through which the court takes a peep at the appeal. Although grounds of appeal are not barometers for the initial determination of the strength of the appeal if speculatively, on the likely trend or outcome of the appeal”
per Tobi JSC in IKENTA BEST (NIGERIA) LTD V. AG RIVERS STATE (2008) 6NWLR (PT. 1084) 612. However a ground of appeal is not a vehicle to import the long discredited era of technical justice prevailing over substantial justice. It must arise from the judgment and be connected to the controversy between the parties. The purpose of the ground of appeal is to isolate and accentuate, for attack the basis of the reasoning of the decision being challenged. It is to give notice to the respondent of the errors.
See SARAKI V. KOTOYE (1992) 9 NWLR PT 264 156; PETERS V. STATE (1992) 9 NWLR PT 265 323. PER AWOTOYE, J.C.A.
RELATIONSHIP BETWEEN ISSUES FOR DETERMINATION AND GROUNDS OF APPEAL
On the relationship between issues and grounds of appeal, it is trite that every issue must be based a ground of appeal. If an issue is not related to any ground of appeal such an issue goes to no issue and therefore becomes irrelevant. So also where no issue is drawn from a ground of appeal such a ground of appeal is deemed abandoned and liable to be struck out. See IBATOR V. BARAK URO (2007) 9 NWLR (PT 1040) 475; BHOJSONS PLC V. DAVID-KALIO (2006) 5 NWLR (PT 973) 330. PER AWOTOYE, J.C.A.
WHETHER OR NOT A QUESTION NOT RAISED AT THE LOWER COURT CAN BE RAISED IN THE APPELLATE COURT
I need to add that a question which was not raised at the lower court cannot be raised in the appellate court without leave of court. See AGEDAH V. NKWOCHA (2002) 9 NWLR (PT 77) 113; BERENDE V. USMAN (2005) 14 NWLR (PT 944) 1; GARBIEL V. STATE (1989) 5NWLR (PT 122) 457, ALAMIEYE SEUGHA V. F.R.N (2006) 16 NWLR (PT 1004) 1 S.T.B. PLC V. OLUSOLA (2008) 1 NWLR (PT 1069) 561. PER AWOTOYE, J.C.A.
THE STATUS OF A CERTIFICATE OF OCCUPANCY
What is the status of a certificate of occupancy?
In FINNIH V. IMADE (1992) 1 NWLR (PT 219) 511, Babalakin JSC had this to say:
“The position now is that the certificate of occupancy is and remains valid and effective and is admissible in law as documentary evidence until legal steps are taken to have it revoked and it is formally revoked by an order of a court of competent jurisdiction on the ground that the Military Governor was initially misled into granting it.”PER AWOTOYE, J.C.A.
TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant against the judgment of Kebbi State High Court of Justice delivered on 27/6/2013 in KB/HC/11/2013.
The plaintiff had instituted an action against the defendant in the lower court claiming as follows:
“The claimant claim against the defendant:
1. A declaration that the claimant having been allocated all that piece of land known as plot No. 95 situate at LP33 phase II Gwadangwaji Area Birnin Kebbi measuring an area of about 0.098 hectres and covered by letter of grant no. BI/G/4063 is the owner of same, and is entitled to exclusive possession and enjoyment of same without disturbance from the defendant.
2. A declaration that the defendant’s act of entry and excavating the claimant’s land known as plot No. 95 situate at LP33 phase II Gwadangwaji Area Birnin Kebbi, measuring an area of about 0.098 hectres and covered by letter of grant no. BI/G/4063 dated the 27th November, 1998, with intent to build on same amounts to trespass unto the land.
3. An order of perpetual injunction restraining the Defendant by himself, his privies, agents, servants, from further act of trespass unto the claimant’s land known as plot No. 95 situate at LP33 phase II Gwadangwaji Area Birnin Kebbi, measuring an area of about 0.098 hectres and covered by letter of grant no. BI/G/4063 dated the 27th November, 1998.
4. N500,000.00 (Five Hundred Thousand Naira) only as general damages.
5. And for further order(s) as the court may deem fit to make in the circumstance of the case”
Parties filed and exchanged briefings. The lower court after hearing the parties gave judgment inter alia thus:
“I have earlier reviewed the evidence adduced by both parties. On the part of the defendant, he testified and tendered exhibits D1, D2, the defendant could not establish the relationship between exhibit D1 and D2 and the land in dispute, neither could he explain how exhibit D2 was arrived at. The defendant did not call the seller contained in D1 to testify as to his root of title.
The defendant did not also call Umaru Attahiru whose name exhibit D2 was issued.
It is trite law that the issuance or acquisition of Certificate of Occupancy does not and cannot confer title in respect of a parcel of land, it purported to cover where no such title either existed or was available to be transferred. See Kyari V. Alkali (2001) 31 WRN 88. Ogunyele V. Oni (1990) 2 NWLR pt. (135) 745. In the most recent case of Oyeyeyin V. Akinkugbe (2010) 1 MSCC (pt. 2) P. 1 at 7, the Supreme Court held that:
‘Mere production of a valid instrument of grant does not necessarily carry with it an automatic grant of declaration.’
I agree with the learned counsel for the claimant that Exhibit D and D1 have no probative and they did not advance the case of the defendant to anywhere.
In the light of the foregoing, I am satisfied that the claimant has better title to the land in dispute and I accordingly grant all the relief sought as per the statement of claim.”
Dissatisfied with the above judgment, the defendant appealed on 20/8/2013, vide his Notice of Appeal containing 5 Grounds of appeal. The grounds of appeal (without the particulars) are
“GROUND 1
The Judgment is against the weight of evidence.
GROUND 2
The trial judge erred in law when in entering judgment against the Appellant relying on the authority of ERINFOLAMI V. OSO (2012) 24 WRN at 4 failed to afford the Appellant a fair hearing contrary to Section 36 of the 1999 CFRN (as amended) by not looking at the Appellant’s case before the court when he held:
“I hereby grant all the Claimants claim.”
GROUND 3
The trial judge erred in law when in relying on OLUSANYA V. OSIBAMOWO (2012) 16 WRN held without giving a fair hearing to the appellants that:
“the defendant did not call Umaru Attahiru whose name is on the certificate of occupancy as a witness and so did not have any defence to this case…”
GROUND 4
The trial judge seriously erred in law when in entering judgment against the Appellant refused to give him a fair hearing contrary to Section 36 of the 1999 Constitution when the court refused to accord any recognition nor evaluate the Appellant’s oral and documentary evidence before it by relying on OLUSANYA V. OSIBAMOWO (2012) 16 WRN when it held:
“The defendant has no any defence to the claimant’s claim and Judgment is hereby entered for the claim and all his prayers are hereby granted”
GROUND 5
The trial judge seriously erred in law when in entering judgment against the Appellant refused to expunge EXHIBIT B which was wrongly admitted as a primary document of a public document through PW1 and attached weight on same in giving its judgment.”
After transmission of record of appeal to this court each of the parties filed and exchanged briefs of argument.
The appellant’s brief of argument was filed on 1/11/2013.
The brief was settled by Hussaini Zakariya for appellant. He formulated two issues for determination. These are the issues:
“1) Whether certificate of occupancy is not a total proof of ownership of land when there was no any proof of an earlier right (distilled from grounds 1 and 4)
2) Whether in a case for a declaration of title; a claimant’s case is won on the weakness of the defence (distilled from grounds 2 and 3)”
In issue No.1 learned appellant’s counsel submitted that on the face of the documents relied on by the Appellant and the Respondent before the court that exhibit D2 which was a certificate of occupancy relied upon by the Appellant was earlier time than exhibit A (grant of right of occupancy) relied on by the Respondent to prove ownership. He submitted that for the respondent to successfully prove his claim for declaration of title before the trial court he had to prove that his document was earlier in time than exhibit D2.
He relied on OLUSANYA V. OSIBAMOWO (2012) 16 NWLR 101; INEC V. OSHIOMOLE (2008) 48 WRN 41. This the Respondent failed to do.
He submitted that the respondent only succeeded in proving before the trial court that Exhibit A was a fake document. He referred to s.145 (1) of the Evidence Act.
Learned counsel for the appellant contended further that with the failure to satisfy the mandatory requirement of the law regarding his proof in his declaratory claim the appellant needed not put in any defence. Moreso when his document, Exhibit D2 was by law known to be a total proof of ownership which was not rebutted by the respondent. He relied on OLUSANYA V. OSIBAMOWO (Supra) and OBU V. ONIBUDO & CO LTD (2010) ALL FWLR 792 at 794.
On issue No.2, learned appellant’s counsel submitted that it was trite law that a claimant’s claim, in a declaration of title to land was won on the strength of his own evidence and not on the weakness of his defence.
Learned counsel submitted that the learned trial Judge erred in law when he refused to give the legal presumption of Exhibit D2.
He contended that the presumption enjoyed by a certificate of occupancy though rebuttable was never rebutted nor challenged by the respondent before the lower court and the court still discountenanced the certificate of occupancy. He relied on OLUSANYA V. OSIBAMOWO (2012) 16 NWLR at 101.
Appellant’s counsel also submitted that the learned trial Judge erred when he refused to accord a certificate of occupancy (Exhibit D2) its legal due even when it was earlier in time. He contended further that the trial court was wrong in law in view of the fact that exhibit D2 could not be set aside by him but he still conferred title on the respondent notwithstanding the statutory backing of Section 9 of Land Use Act 1978 and Section 146 of the Evidence Act 2011 (as amended)
He finally urged the court to set aside the judgment of the High Court of Justice Kebbi State for lack of proof.
The Respondent’s brief was settled by Lagalo Dan lagalo, learned counsel for the Respondent. The brief was filed on 16-12-13.
The brief contains a notice of preliminary objection and its arguments.
The grounds of the objection are:
“1. The Appellant’s grounds of appeal as contained in grounds 2, 3, and 4 are not precise, concise and straight to point. Thus, does not constitute a direct attack on the ratio(s) in the judgment of the trial court now on appeal.
2. The said grounds of appeal are ambiguous and vague particularly when considered with the particulars of errors in support of the grounds which are manifestly at cross purpose with one another and does not support the said grounds.
3. No issue for determination is distilled from ground 5 of the Appellant’s ground of appeal. Consequently, it is deemed abandoned and liable to be stuck out.
4. The legal issues raised and argument in support contained in 32.0, 33.0, 35.0, 41.0, 50.0, 51.0, 52.0, 54.0, 56.0, 60.0, 61.0 and 62.0 of the Appellant’s brief of argument are fresh issues of law not raised at the trial court and cannot be raised on appeal without leave of court.
5. The appellant did not seek and obtain leave of this Honourable Court before raising fresh issues of law as contained in the above mentioned paragraphs of the Appellant’s brief of argument.”
Learned Respondent’s counsel submitted that Grounds 2 – 4 of the grounds of appeal were not precise, concise and straight to point. He added that they did not constitute a direct attack on the ratio(s) in the judgment of the trial court.
Learned counsel further submitted that no issue was formulated on Ground 5 of the grounds and that the ground of appeal should be struck out. He relied on ASIKPO V. ETUK (2012) 10 WRN 153 at 169.
Lagalo Dan Lagalo for the Respondent further argued that the appellant raised and argued fresh issues of law which were not canvassed at the trial court without leave of this court.
He referred to ELF (NIG) LTD V. NIG. OIL MIL LTD (2010) 12 WRN 166 at 168; ETUKUDO V. UDOAKAGHA (2013) 5WRN 78 at 92; OJIOGU V. OJIOGU (2010) 48 WRN 1 at 7, he referred to the new issues as those raising issues and arguments not canvassed at the trial court such as arguments incorporating the provision of Sections 146, 145(1) of the Evidence Act 2011, and Sections 9 and 10 of the Land Use Act. He submitted that they raised arguments that borders on presumption of regularity and fact in favour of Exhibit D and failure of the trial court to give effect to Section 9 of the Land Use Act as well as s.146 of the Evidence Act.
He therefore urged the court to strike out Grounds 2, 3, 4 and 5 of the Appellant’s grounds of appeal and paragraphs 31.0, 33.0, 35.0, 41.0, 50.0, 51.0, 52.0, 54.0, 56.0, 60.0, 61.0 and 62.0 of the appellant’s brief.
The appellant, filed Reply to the Respondent’s preliminary objection on 22/1/2014. Learned Respondent’s counsel submitted that the only reason why a ground of appeal could be said to be incompetent was when such ground of appeal was not emanating from the record of the court or not understood by the court or the other party but not on its style of drafting.
He urged the court to so hold. He referred to SECURITY AND EXCHANGE COMMISSION V. ALHAJI UMAR ABBA GANA & ORS (2008) 27 WRN 150 at 156, TOSIN AYEBUSUWA V. INEC (2008) 45 WRN 52 at 58.
He further submitted that the appellant’s grounds of appeal are grounds of law alone and do not require leave of court to be obtained. He referred to S.241 (1b) of the 1999 Constitution. He argued further that all the issues raised in paragraphs 32.0, 33.0, 35.0, 41.0, 50.0, 51.0, 52.0, 54.0, 56.0, 60.0, 61.0 and 62.0 were raised by the appellant before the trial court. He referred to BAYERO V. MAINASARA & SONS LTD (2006) 36 WRN 136 at 146. He finally urged the court to strike out the respondent’s preliminary objection for being frivolous.
I have carefully considered the arguments canvassed for and against the preliminary objection raised by Respondent.
“Grounds of appeal provide the mirror through which the court takes a peep at the appeal. Although grounds of appeal are not barometers for the initial determination of the strength of the appeal if speculatively, on the likely trend or outcome of the appeal”
per Tobi JSC in IKENTA BEST (NIGERIA) LTD V. AG RIVERS STATE (2008) 6NWLR (PT. 1084) 612. However a ground of appeal is not a vehicle to import the long discredited era of technical justice prevailing over substantial justice. It must arise from the judgment and be connected to the controversy between the parties. The purpose of the ground of appeal is to isolate and accentuate, for attack the basis of the reasoning of the decision being challenged. It is to give notice to the respondent of the errors.
See SARAKI V. KOTOYE (1992) 9 NWLR PT 264 156; PETERS V. STATE (1992) 9 NWLR PT 265 323.
Inelegant drafting does not vitiate a ground of appeal once it is meaningful. See UBA V. ACHORU (1990) 6 NWLR PT 156 254 at 283; KOYA V. UBA (1997) 1 NWLR 481 at 251.
On the relationship between issues and grounds of appeal, it is trite that every issue must be based a ground of appeal. If an issue is not related to any ground of appeal such an issue goes to no issue and therefore becomes irrelevant. So also where no issue is drawn from a ground of appeal such a ground of appeal is deemed abandoned and liable to be struck out. See IBATOR V. BARAK URO (2007) 9 NWLR (PT 1040) 475; BHOJSONS PLC V. DAVID-KALIO (2006) 5 NWLR (PT 973) 330.
I need to add that a question which was not raised at the lower court cannot be raised in the appellate court without leave of court. See AGEDAH V. NKWOCHA (2002) 9 NWLR (PT 77) 113; BERENDE V. USMAN (2005) 14 NWLR (PT 944) 1; GARBIEL V. STATE (1989) 5NWLR (PT 122) 457, ALAMIEYE SEUGHA V. F.R.N (2006) 16 NWLR (PT 1004) 1 S.T.B. PLC V. OLUSOLA (2008) 1 NWLR (PT 1069) 561.
I shall view the preliminary objection of the Respondent in the light of the above.
It is clear that the appellant has abandoned Ground 5 of the appeal as no issue was distilled from it. It is therefore struck out having been abandoned.
I however, after reading through Grounds 2, 3, and 4 of the appeal hold that the grounds are clear enough and therefore overrule the objections to their validity. They constitute an attack on the ratio of the judgment appealed against.
I have also scrutinized the record of appeal to see if the appellant raised fresh points which he ought not to have raised without leave of court. I am able to discover that the argument on failure of the trial court to give effect to Section 9 of Land Use Act is a fresh issue which was never argued before the trial court. All arguments thereon are therefore struck out.
The preliminary objection succeeds in part.
Now to the arguments of the Respondent on the appeal.
The Respondent formulated a lone issue for determination which is
“Whether from the totality of pleadings and evidence led in support therefore as disclosed by the record of proceedings, the trial court was right in holding that the Respondent has a better title to the land in dispute (distilled from grounds 1, 2, 3 and 4)”
Learned Respondent’s counsel submitted that the finding of the lower court granting the Respondent’s claim was unassailable. He referred to the 5 ways a claimant who sought declaration of title to land could prove his claim as laid down in IDUNDUN V OKUMAGBA (1976) 9 NSCC 445. He referred to the evidence of the Respondent which showed that he got his land though direct allocation by the Kebbi State Government. He stated that the claimant having produced the list of allottees and a duly executed and authenticated document of title in terms of Exhibits A and B had established his title to the plot of land.
He submitted that the evidential burden then shifted to the appellant/defendant. He submitted that Umar Attahiru whose name appeared on Exhibit D was not on the list of allottees. He asserted that the integrity of Exhibit D was questionable.
He referred to OYENEYIN V AKINKUGBU (2010) IM JSC (PT 2) 1 at 3 and submitted that Exhibit D1 was invalid.
Learned counsel submitted that the Appellant ought to have called either Garba Umar or Umaru Attahiru to explain or establish the relationship between Exhibit D1 and D2.
He urged the court to resolve the sole issue in favour of the Respondent and dismiss the appeal.
The Appellant also filed a Reply brief. He urged the court to rely on the Respondent’s admission in paragraph 6.1 of his brief that the trial court did not consider the defence of the appellant. He relied in APLINTERS (NIG) LTD V OASIS FINANCE LTD (2013) 39 WRN 145 at 150.
I have carefully considered the submissions of learned counsel on both sides.
I shall adopt the lone issue as formulated by the Respondent in the determination of this appeal as I consider it adequate enough for the appeal.
From the record of proceedings and exhibits tendered was the lower court right to have held that the Respondent had a better title to the land than the appellant?
The appellant relied on certificate of occupancy No. BI/G/6047 GRANTED ON 10/4/98 to Umar Attahiru.
The certificate of occupancy was handed over by him to Umar Garba. There is also no evidence on record to show the relationship between Umar Attahiru and Umar Garba. There is also no evidence attacking the integrity of the certificate of occupancy.
The Respondent who was the plaintiff at the lower court relied on letter of grant No. BI/G/4065 dated 27/11/1998 which was issued to him by the Department of Lands, Survey, Town and Country Planning Kebbi State.
Both the certificate of occupancy relied upon by the appellant and the letter of grant relied upon by the Respondent are in respect of the same parcel of land with beacon No. 7333, 7334, 7322 and 7321.
What is the status of a certificate of occupancy?
In FINNIH V. IMADE (1992) 1 NWLR (PT 219) 511, Babalakin JSC had this to say:
“The position now is that the certificate of occupancy is and remains valid and effective and is admissible in law as documentary evidence until legal steps are taken to have it revoked and it is formally revoked by an order of a court of competent jurisdiction on the ground that the Military Governor was initially misled into granting it.”
I have gone through the entire proceedings at the lower court there is no evidence to show that the certificate of occupancy relied upon by the appellant had been revoked.
Now the letter of grant relied upon by the Respondent was signed on 27-11-98 while the certificate of occupancy in the name of Umaru Attahiru was earlier in time than the letter of grant relied upon by the Respondent. This kind of situation was considered by the Supreme Court in ILONA V IDAKWO (2003) 11 NWLR (PT 830) 53 where Edozie JSC had this to say;
“Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid. The appellant’s right of occupancy subsists up to now as it has not been revoked and the wrongful grant to the 1st Respondent has no effect whatsoever on its authenticity…”
In the light of the above, the documentary evidence adduced by the Respondent to prove his title to the land in dispute is inadequate in the absence of any proof that the certificate of occupancy in the name of Umar Attahiru has been revoked. It is true the appellant/defendant did not prove the relationship between Umaru Attahiru and Umaru Garba who transferred the title land to him but it is trite that the plaintiff has to prove its case and not rely on the weakness of the defendant’s case. See CPC V INEC (2012) 29 WRNI. Exhibit A and B tendered and relied upon by the plaintiff at the lower court should not have stood in the face of Exhibits D2 and D2 tendered by the defendant, as they did not, under S.28 of Land Use Act tantamount to revocation of the certificate of occupancy.
I therefore resolve the lone issue formulated by the Respondent in favour of the appellant. I hold that the learned trial Judge erred to have granted the claim of the plaintiff/claimant.
This appeal has merit. It is hereby allowed.
In the circumstance I hereby set aside the judgment of Kebbi State High Court Birnin Kebbi in suit No. KB//HC/11/2013 delivered on 27/6/2013. In its place I order that the claimant’s claim fails in its entirely and it is hereby dismissed.
Parties are to bear their respective costs.
PRONOUNCEMENT
JAFARU MIKA’ILU, J.C.A.: HON. JUSTICE JAFARU MIKA’ILU (NOW LATE) PRESIDED OVER THE APPEAL AND AGREED WITH THE LEADING JUDGMENT OF HON. JUSTICE T. O. AWOTOYE JCA.
JAMES SHEHU ABIRIYI, J.C.A.: I read before now in draft, the judgment just delivered by my learned brother, Tunde O. Awotoye, JCA.
He has exhaustively dealt with the only issue for determination in the appeal. I have nothing more useful to add.
The Appellant’s Certificate of Occupancy was granted on 10th April, 1998 to Umaru Attahiru.
The Respondent was granted the land by letter dated 27th November, 1998.
The Certificate of Occupancy of Umaru Attahiru relied on by the Appellant was earlier in time. There is no evidence it has been revoked.
I too allow this appeal and set aside the judgment of the lower court. The Respondent’s claim at the lower court is also dismissed by me.
Parties shall bear their respective costs.
Appearances
Hussain Zakariyya Esq. For Appellant
AND
Lagalo Dan Lagalo with Nura Bello For Respondent
